Juja Coffee Exporters Limited & 3 others v Bank of Africa Limited & 6 others (Environment & Land Case E049 of 2023) [2024] KEELC 5388 (KLR)
The bottom line
#The Mombasa Environment and Land Court allowed a family to stop KCB from disposing of disputed land while their fraud claims are heard, confirming land disputes stay in the ELC even when a bank is involved.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over a dispute with commercial (banking) elements
The court has jurisdiction because the dominant claim concerns fraudulent and illegal sale and transfer of land.
While some claims concerning loan facilities and the Banking Act are commercial in nature and would ordinarily fall to the High Court, the primary claim challenges the 1st defendant's adherence to the statutory power of sale procedure under section 97 of the Land Act and alleges fraud and forgery in the transfers of the suit properties. Such disputes relating to land fall under section 13(2)(e) of the ELC Act, so the suit falls within this court's jurisdiction.
Locus standi of the plaintiffs
The plaintiffs have capacity/locus standi as framed; the suit will not prejudice the defendants.
The plaintiffs are not merely seeking chargors' equity of redemption reliefs under section 103 of the Land Act, but are challenging fraud and illegality in the charges and sales and seeking rectification of registers. Certificates of lease were in the 3rd plaintiff's name and the 4th plaintiff is a joint executor under Order 1 Rule 9 of the Civil Procedure Rules. At the interlocutory stage, no final determination of fact or law is required, and the defendants are not prejudiced.
Res judicata
The suit is not res judicata as the injunctions sought are against interference by the new owners, not against the statutory power of sale per se.
The prior suits concerned the charges registered in favour of the 1st defendant, but the present suit primarily seeks protection of the suit properties from interference or disposal by the 3rd to 5th defendants and challenges the legality of the auctions and transfers. Being a preliminary stage, the court declined to go into the merits, but found the suit and application not res judicata.
Validity of the 4th defendant's uncommissioned replying affidavit
The affidavit is defective and struck out; its contents have no evidential value.
A statement not sworn and commissioned lacks the legal status of an affidavit. Following Z-U-DG v SJK-U and Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli, an unsworn replying affidavit is fatally defective and submissions founded on it are of no effect. The 4th defendant's undated and uncommissioned replying affidavit was therefore struck out.
Threshold for temporary injunction
The plaintiffs met the Giella v Cassman Brown test and the injunction was granted in terms of prayers (4) and (5).
The plaintiffs established a prima facie case with probability of success from certificates of lease and searches, notwithstanding that not all plaintiffs were registered owners at all material times. Irreparable injury was shown since the properties had been sold and could be further dealt with in ways placing them beyond the court's reach, and the balance of convenience favoured preservation of the properties' legal status.
Whether the 6th & 7th defendants are necessary parties
They are not necessary parties and were struck out from the suit.
The 6th & 7th defendants paid Kshs. 45,000,000 under an aborted sale of plot 586 but were never registered as proprietors or given possession, due to an order in HCMISC APP No. E119 of 2022 and a restriction by the Assets Recovery Agency, and they have their own suit (ELC E044 of 2023) against the 1st defendant for refund. No specific relief is sought against them by the plaintiffs, so their participation is unnecessary for effectual determination.
Legal principles established
#- Jurisdiction is a pure question of law which must be determined at the outset; a court without jurisdiction must down its tools
- An affidavit not signed and commissioned before a Commissioner of Oaths is a mere unsworn statement with no evidential value
- Where a party challenges the legality and fraud of transfers of land following exercise of a chargee's power of sale, the dispute relating to land falls within the jurisdiction of the Environment and Land Court notwithstanding commercial elements
Court orders
#- 1.The plaintiffs' application dated 13th December 2023 is allowed in terms of prayers (4) and (5) - temporary injunctions against the 1st defendant disposing parcels No. 526 and 527 Section XXI Mombasa Island and Title No. Mombasa/Block XXVI/381, and against the 3rd to 7th defendants from interfering with plots 147, 154, 44 and 586, pending hearing and determination of the suit
- 2.The 1st defendant's application dated 19th January 2024 is dismissed
- 3.The 6th & 7th defendants' application dated 26th January 2024 is allowed in terms of prayer (b) and their names are struck out from the suit
- 4.Costs in each application to abide the outcome of the suit
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Section 13(2)(e) 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, "Juja Coffee Exporters Limited & 3 others v Bank of Africa Limited & 6 others (Environment & Land Case E049 of 2023) [2024] KEELC 5388 (KLR)", Case Analysis (2024). ELC No. E049 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5388/eng@2024-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.