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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Environment and Land Court has jurisdiction over an application to set aside and cancel a Charging Order registered against land
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
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.
Whether the application dated 6th June, 2023 had merit
The application had to fail given the finding on jurisdiction
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.
Costs of the application
No orders as to costs despite the Applicant's non-success
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.
Legal principles established
#- 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
#- 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.That the Notice of Motion application dated 6th June, 2023 be and is hereby dismissed for lack of merit
- 3.That the appropriate Court to hear and determine the matter is the High Court Commercial Division
- 4.That there will be no orders as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.