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ELCDismissed· [2024] KEELC 3664 (KLR)

Said v Timothy John Leslie Bryson as Administrator of the Estate of John Edward Leslie Bryson; Land Registrar Mombasa (Interested Party) (Environment and Land Miscellaneous Application E031 of 2023) [2024] KEELC 3664 (KLR)

Environment and Land Court
2 May 2024
3,470 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed an attempt to cancel a decades-old charging order over Malindi land, ruling the debt dispute belongs in the High Court's Commercial Division.

What this practically means

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Executive summary

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The Applicant, Hussein Abdalla Said, moved the Environment and Land Court at Mombasa by Notice of Motion dated 6th June, 2023 seeking to set aside a Charging Order issued on 28th April, 1955 in favour of James Christie and John Edward Leslie Bryson over Portion 160A Malindi, and to have the Land Registrar, Mombasa remove and cancel the entry. The Applicant deponed that he was the beneficial proprietor, having inherited from the registered proprietor Salim bin Mohammed bin Ghulum (deceased) under an order of the Malindi Kadhi's Court, and that the charge secured a debt of Kshs. 7,327.50 owed by a deceased executor, that the Respondent could not be traced, and that the claim was time-barred under the Limitation of Actions Act. Neither the Respondent nor the Interested Party filed responses. Framing three issues, the Court first examined its jurisdiction. Applying the Lillian S v Caltex principle and the predominant purpose test from Co-operative Bank v Patrick Njuguna Kangethe, it held that although land was mentioned, the predominant cause of action was the discharge of a charging order securing a debt, a commercial dispute outside the ELC's jurisdiction under Article 162(2)(b) and Sections 3 and 13 of the ELC Act, and that the proper forum is the High Court Commercial Division. The application was dismissed for lack of merit, with no order as to costs since no party filed responses.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction over an application to set aside and cancel a Charging Order registered against land

Holding

The Court held it lacked jurisdiction because the predominant cause of action was the discharge of a charging order securing a debt, a commercial dispute belonging to the High Court Commercial Division

Reasoning

Although the relief concerned land registration, the Court found the substance of the dispute was settlement of an outstanding debt of Kshs. 7,327.50 and discharge of the resulting charging order. Applying the predominant purpose test borrowed from the Co-operative Bank v Patrick Njuguna Kangethe decision, the Court concluded the matter was commercial in nature and beyond the ELC's jurisdiction under Article 162(2)(b) and Sections 3 and 13 of the ELC Act.

p. 6
02

Whether the application dated 6th June, 2023 had merit

Holding

The application had to fail given the finding on jurisdiction

Reasoning

Having held that the ELC lacks jurisdiction over the subject matter, the Court found nothing useful to add on merit, since a court without jurisdiction cannot make any further step in the proceedings. The application was therefore dismissed for lack of merit.

p. 7
03

Costs of the application

Holding

No orders as to costs despite the Applicant's non-success

Reasoning

While Section 27(1) of the Civil Procedure Act provides that costs follow the event, the Court exercised its discretion to make no order on costs because none of the parties had filed responses to the application.

p. 7

Legal principles established

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  • A court's jurisdiction flows from the Constitution or legislation and cannot be assumed beyond what is conferred by law
  • Where a dispute mixes land and commercial elements, the predominant purpose test determines whether jurisdiction lies in the ELC or the High Court

Court orders

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  1. 1.That the Court lacks jurisdiction to entertain the matter under Article 162(2)(b) of the Constitution, Sections 3 and 13 of the Environment and Land Court Act, No. 19 of 2011, Section 101 of the Land Registration Act, No. 3 of 2012 and Section 150 of the Land Act, No. 6 of 2012
  2. 2.That the Notice of Motion application dated 6th June, 2023 be and is hereby dismissed for lack of merit
  3. 3.That the appropriate Court to hear and determine the matter is the High Court Commercial Division
  4. 4.That there will be no orders as to costs

Authorities

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Legislation

  • Civil Procedure Act, Cap. 21Sections 1A, 1B, 3, 3A and 27(1)
  • Land Act, 2012Sections 102 and 150
  • Advocates ActSection 52
  • Civil Procedure Rules, 2010Order 51 Rule 1 and Order 5 Rule 15
  • Limitation of Actions Act, Cap. 22Not specified
  • Constitution of Kenya, 2010Articles 159 and 162(2)(b)
  • Environment and Land Court Act, No. 19 of 2011Sections 3 and 13(1) and (2)
  • Land Registration Act, No. 3 of 2012Section 101

Cases cited (7)

  • The Owners of Motor Vessel Lillian S v Caltex Kenya Limited
    [1989] KLR 1
  • Samuel Kamau Macharia v KCB & 2 Others
    Civil Application No. 2 of 2011
  • County Government of Migori v I N B Management IT Consultant Limited
    (2019) eKLR
  • Hon. Lady Justice Kalpana H. Rawal v Judicial Service Commission and Others
    Supreme Court Civil Application No. 11 of 2016
  • Ocheja Immanuel Dangama v Hon. Atoi Aidoko Aliasman and 4 Others
    Supreme Court of Nigeria Case No. 11 of 2012
  • Mary Musuki Mudachi & another v Anthony Muteke Mudachi & 2 others; Elijah K. Kimanzi & 6 others (Interested Parties)
    [2021] eKLR
  • Co-operative Bank v Patrick Njuguna Kangethe
    CA No. 83 of 2016 (Mombasa), (2017) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 and Sections 3 and 13 of the Environment and Land Court Act, No. 19 of 2011

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, "Said v Timothy John Leslie Bryson as Administrator of the Estate of John Edward Leslie Bryson; Land Registrar Mombasa (Interested Party) (Environment and Land Miscellaneous Application E031 of 2023) [2024] KEELC 3664 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3664/eng@2024-05-02

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