Okoth v ABSA Bank Kenya PLC; Trevo Auctioneers (Interested Party) (Land Case E051 of 2023) [2024] KEELC 4684 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a preliminary objection on jurisdiction meets the Mukisa Biscuit threshold
A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct.
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.
Whether the ELC has jurisdiction over disputes concerning charges and the statutory power of sale
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.
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.
Legal principles established
#- 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
#- 1.The notice of preliminary objection dated 6th February 2024 is dismissed with costs
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.