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ELCStruck OutNot stated in judgment (Thika ELC suit; Notice of Motion dated 29/11/2022)· [2024] KEELC 3538 (KLR)

Karuma (Suing as Legal Representative of the Estate of Joseph Karuma Mburu – Deceased) v National Bank of Kenya Ltd & 3 others (Environment & Land Case E088 of 2022) [2024] KEELC 3538 (KLR)

Environment and Land Court
30 April 2024
JKJ G Kemei
2,078 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cannot hear challenges to a bank's property sale over a loan; those mortgage disputes belong in the High Court.

What this practically means

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Executive summary

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The 1st Defendant, National Bank of Kenya Limited, moved the Court by Notice of Motion dated 29/11/2022 under Order 2 Rule 15, Order 4 Rule 1, Order 25 Rule 4 and Order 51 Rule 1 of the Civil Procedure Rules, seeking striking out of the plaintiff's suit for duplicity and as sub judice, relying on a parallel Kiambu suit (CMCC No. E086 of 2021) and a Milimani suit (CMCC No. 1087 of 2020). The plaintiff opposed, asserting the Kiambu suit was withdrawn and that the Milimani suit involved different parties, capacity and causes of action. The Court directed parties to address it on jurisdiction. Applying the Lilian S and Samuel Kamau Macharia jurisprudence on jurisdiction, and binding Court of Authority authority in Cooperative Bank v Patrick Kangethe Njuguna, the Court held that a charge or mortgage does not constitute use of land within Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; disputes over the exercise of a chargee's statutory power of sale fall within the High Court's civil jurisdiction. Since the gist of the plaintiff's suit challenged the bank's statutory power of sale over land securing a loan to Limumatt Supermarket, the Court found it lacked jurisdiction, which goes to the root of the matter. The Court struck out both the plaintiff's suit and the 1st Defendant's Notice of Motion, with no orders as to costs. The duplicity and sub judice grounds were not determined.

Key legal issues

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Whether the Environment and Land Court has jurisdiction over a suit challenging a chargee's statutory power of sale

Holding

It does not; such disputes fall within the civil jurisdiction of the High Court.

Reasoning

Relying on Cooperative Bank v Patrick Kangethe Njuguna, the Court held that a charge is an interest in land securing repayment of money, and its creation has nothing to do with use of land as contemplated by Article 162(2)(b) and Section 13 of the ELCA. Contracts within the ELC's jurisdiction must be incidental to the use of land and do not include mortgages or charges. The gist of the plaintiff's case was the manner the 1st Defendant exercised its statutory power of sale, which is not a land-use dispute.

p. 4

Legal principles established

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  • Jurisdiction is everything and a decision made without jurisdiction is a nullity ab initio
  • A charge/mortgage does not constitute use of land and disputes over charges do not fall within the jurisdiction of the Environment and Land Court

Court orders

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  1. 1.The suit and the Notice of Motion dated 29/11/2022 be struck out
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15; Order 4 Rule 1; Order 25 Rule 4; Order 51 Rule 1
  • Civil Procedure ActSection 8
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13
  • Land ActSection 96; Section 2; Section 80

Cases cited (6)

  • Phoenix of E. A. Assurance Company Limited Vs. S.M. Thiga T/A Newspaper Service
    (2019) eKLR
  • Owners of the Motor Vessel 'Lilian S' Vs. Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Samuel Kamau Macharia & Anor. Vs. Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Cooperative Bank Vs. Patrick Kangethe Njuguna & 5 Others
    [2017] eKLR
  • Mary Juster Chepleting Vs. Agricultural Finance Corporation & 4 Others
    [2021] eKLR
  • Furnicon Limited Vs. Middle East Bank Kenya Limited
    (Civil Case E382 of 2022) [2024] KEHC 1499
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Karuma (Suing as Legal Representative of the Estate of Joseph Karuma Mburu – Deceased) v National Bank of Kenya Ltd & 3 others (Environment & Land Case E088 of 2022) [2024] KEELC 3538 (KLR)", Case Analysis (2024). Not stated in judgment (Thika ELC suit; Notice of Motion dated 29/11/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3538/eng@2024-04-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.