Masumbuko v National Bank Kenya Ltd (Environment & Land Case 113 of 2020) [2024] KEELC 5454 (KLR)

The court adopted the Supreme Court's restatement in Joho citing Mukisa Biscuit: a preliminary objection consists of a point of law pleaded or arising by clear implication from the pleadings, capable of disposing of the suit, and cannot be raised where facts must be ascertained or judicial discretion exercised. It also cited the IEBC v Cheperenger caution against using a preliminary objection as a sword.

The court followed the Court of Appeal's recent binding decision in Bank of Africa v TSS Investment, which applied Co-operative Bank v Kangethe, holding that a charge is a disposition with no direct contractual relation to the use of a chargor's land, so disputes over charges and the statutory power of sale fall to the High Court's civil jurisdiction. Though section 150 of the Land Act and section 101 of the Land Registration Act confer ELC jurisdiction over matters under those Acts, and Munyao J in Lydia Nyambura Mbugua had read that to cover charges, the later Court of Appeal authority narrows jurisdiction to the dominant issue.