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ELCOtherNot stated in judgment (Mombasa ELC suit)· [2024] KEELC 4684 (KLR)

Okoth v ABSA Bank Kenya PLC; Trevo Auctioneers (Interested Party) (Land Case E051 of 2023) [2024] KEELC 4684 (KLR)

Environment and Land Court
13 June 2024
1,654 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed it can stop a bank auctioning your home, because selling charged land falls squarely within its jurisdiction.

What this practically means

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Executive summary

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The Defendant bank filed a notice of preliminary objection dated 6th February 2024 opposing the Plaintiff's Notice of Motion dated 15th December 2023, contending that the dispute fell outside the jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution and section 13 of the Environment and Land Court Act. The suit concerned the Plaintiff's residence, L.R No. Mainland North/I/22507, Villa No. 3 Salwa Heights (The Reef Palm Estate), Nyali, Mombasa, which had been advertised for public auction on 18th January 2024. The bank asserted that the Plaintiff's husband, Evans Murumba, was the registered owner who had taken a loan facility secured by a formal charge dated 18th October 2021, and that statutory notices had issued; a parallel suit by Murumba (Mombasa HCCC No. E039 of 2023) had failed. The court framed one issue: whether the preliminary objection met the threshold. Applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (as adopted in Hassan Ali Joho) and IEBC v Jane Cheperenger, the court examined the jurisdictional question. Relying on Mv Lillian S v Caltex Oil and endorsing Munyao J in Lydia Nyambura Mbugua v Diamond Trust Bank, the court held that the process of sale of charged property is governed by the Land Act and Land Registration Act, whose jurisdictional provisions vest such disputes in the ELC, since they concern occupation, use and title to land. The preliminary objection was dismissed with costs on 13th June 2024.

Key legal issues

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01

Whether a preliminary objection on jurisdiction meets the Mukisa Biscuit threshold

Holding

A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct.

Reasoning

The court applied the classic definition in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, as adopted by the Supreme Court in Hassan Ali Joho, and the caution in IEBC v Jane Cheperenger that a preliminary objection is a shield, not a sword. The objection raised was a pure point of law on jurisdiction, so the threshold analysis proceeded.

p. 2
02

Whether the ELC has jurisdiction over disputes concerning charges and the statutory power of sale

Holding

Yes - the dispute concerns the use, occupation and title to land, and the sale of a charged property is a process under the Land Act and Land Registration Act which vest jurisdiction in the ELC.

Reasoning

The court considered Article 162(2) and the definition of 'land' in Article 260, sections 150 of the Land Act and 101 of the Land Registration Act, and endorsed Munyao J in Lydia Nyambura Mbugua v Diamond Trust Bank that ELC jurisdiction covers all instruments created under those statutes including charges and the chargee's sale process. Article 165(5) ousts the High Court's jurisdiction in such matters.

p. 4

Legal principles established

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  • The ELC has jurisdiction over disputes arising from the sale of charged property because the process of sale by a chargee is governed by the Land Act and the Land Registration Act, which confer jurisdiction on the ELC.

Court orders

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  1. 1.The notice of preliminary objection dated 6th February 2024 is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 162(3)
  • Constitution of Kenya, 2010Article 165(5)
  • Constitution of Kenya, 2010Article 260
  • Environment and Land Court Act, 2011Section 13
  • Land Act, Cap 280Section 2
  • Land Act, Cap 280Section 80
  • Land Act, Cap 280Section 150
  • Land Registration ActSection 101

Cases cited (10)

  • Hassan Ali Joho & Another vs Suleiman Said Shahbal & 2 Others
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd.
    (1969) EA 696
  • Independent Electoral & Boundaries Commission vs Jane Cheperenger & 2 Others
    (2015) eKLR
  • Samuel Kamau Wachira vs KCB & 2 Others
    Civil Application No. 2 of 2012 (eKLR)
  • Cooperative Bank of Kenya Limited vs Patrick Kangethe Njuguna & 5 Others
    (2017) eKLR
  • Owners of the Motor Vessel M.V Lillian S. vs Caltex Oil (K) Limited
    (1989) KLR 1
  • Lord Bernstein of Leigh vs Skyviews and General Limited
    (1978) QB 479
  • Lydia Nyambura Mbugua vs Diamond Trust Bank Kenya Ltd & Another
    (2018) eKLR
  • Stephen Kibowen -vs- Agricultural Finance Corporation
    (2015) eKLR
  • Evans Murumba Wekesa vs ABSA Bank Kenya Limited Plc
    Mombasa HCCC No. E039 of 2023
Jurisdiction invoked
Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act, 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, "Okoth v ABSA Bank Kenya PLC; Trevo Auctioneers (Interested Party) (Land Case E051 of 2023) [2024] KEELC 4684 (KLR)", Case Analysis (2024). Not stated in judgment (Mombasa ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4684/eng@2024-06-13

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