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ELCPartially AllowedELC Case No. E003 of 2023· [2024] KEELC 5619 (KLR)

Omokwe & 10 others v Kanyi & another; Premier Bank Limited (Formerly First Community Bank Limited/Applicant) (Intended Interested Party) (Environment & Land Case E003 of 2023) [2024] KEELC 5619 (KLR)

Environment and Land Court
25 July 2024
2,734 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa on a Notice of Motion dated 1st March 2024 brought by Premier Bank Limited (formerly First Community Bank Limited) under Article 40 of the Constitution, sections 1A, 1B and 34 of the Civil Procedure Act and Order 22 Rule 65 and Order 51 of the Civil Procedure Rules, 2010. The bank sought to be joined as an interested party in a suit concerning property Subdivision Number 351 of Section I Mainland North, in which it held a registered charge dated 14 February 2012. The plaintiffs opposed, arguing that the bank's interest arose from a separate, settled dispute in HCCC No. 32 of 2018; that joinder would raise res judicata issues; that the bank lacked locus standi; and that the ELC lacked jurisdiction over matters relating to charges, which they said lay with the High Court. The court framed jurisdiction as the preliminary issue, holding that a charge is an interest in land under the Land Act and that Articles 162(2)(b) and 165(5) of the Constitution, together with sections 150 and 101 of the Land Act and Land Registration Act, vest jurisdiction over such disputes in the ELC, applying Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Ltd. On joinder, applying Order 1 Rule 10(2) and the principles in Joseph Njau Kingori v Robert Maina Chege and Civicon Limited v Kivuwatt Limited, the court found the bank's presence necessary for complete adjudication. The application was allowed and prayer 2 granted, with costs in the cause.

Key legal issues

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01

Jurisdiction of the ELC over disputes involving charges

Holding

The ELC has jurisdiction because a charge is an interest in land under the Land Act, and Articles 162(2)(b) and 165(5) of the Constitution, plus sections 150 and 101 of the Land Act and Land Registration Act, vest jurisdiction over land use, occupation and title in the ELC.

Reasoning

The court applied Article 162(2)(b) and the definition of land in Article 260, embracing the cuius est solum doctrine. Relying on Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Ltd, it held that disputes over charges and sale by chargees fall within the ELC's jurisdiction because they concern proprietary transactions under the Land Act and Land Registration Act. The dominant cause of action here concerned ownership and title to land.

p. 4
02

Whether the intended interested party should be joined under Order 1 Rule 10(2)

Holding

The application for joinder is merited because the chargee holds a registered charge over the suit property and its presence is necessary for the effective and complete adjudication of all questions in the suit.

Reasoning

The court applied Order 1 Rule 10(2) and the principles in Joseph Njau Kingori v Robert Maina Chege and Civicon Limited v Kivuwatt Limited: the applicant must be a necessary or proper party whose presence enables the court to effectually settle all questions. The chargee had a registered charge dated 14 February 2012 and a subsisting interest as chargee under the 2019 consent, with the subdivision incomplete; it fulfilled all the Kingori criteria.

p. 6
03

Plaintiffs' objections: res judicata, lack of locus standi and incompatibility of causes of action

Holding

The objections were rejected: the consent in HCCC No. 32 of 2018 settled that matter and no further action was taken there; the dominant cause of action in the present suit concerns title to land, within the ELC's jurisdiction, and the plaintiffs were not party to the High Court suit.

Reasoning

The court found the joinder necessary to avoid orders affecting the chargee being made in its absence, and rejected the argument that joinder would create practical problems or res judicata issues, finding that the present claim (specific performance and injunction relating to land) was distinct from and unaffected by the settled account dispute in HCCC No. 32 of 2018.

p. 4

Legal principles established

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  • The ELC has jurisdiction over disputes relating to charges, as charges are interests in land created under the Land Act and Land Registration Act, which confer jurisdiction on the ELC.
  • Joinder of an interested party is permitted where the party's presence is necessary for the court to effectually and completely adjudicate on all questions in the suit.

Court orders

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  1. 1.Premier Bank Limited (formerly First Community Bank Limited) joined to the suit as an Interested Party (prayer 2 of the application dated 1st March 2024 granted)
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 162(2) & (3)
  • Constitution of Kenya, 2010Article 165(5)
  • Constitution of Kenya, 2010Article 260
  • Civil Procedure ActSections 1A, 1B and 34
  • Civil Procedure Rules, 2010Order 22 Rule 65; Order 51; Order 1 Rule 3; Order 1 Rule 10(2); Order 7 Rule 9
  • Land ActSection 2 (definition of charge), Section 80, Section 150
  • Land Registration ActSection 101

Cases cited (8)

  • Owners of the Motor Vessel M.V Lillian S. v Caltex Oil (K) Limited
    (1989) KLR 1
  • Lord Bernstein of Leigh v Skyviews and General Limited
    (1978) QB 479
  • Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Ltd & another
    (2018) eKLR
  • Stephen Kibowen v Agricultural Finance Corporation
    (2015) eKLR
  • Lucy Nungari Ngigi & 128 others v National Bank of Kenya Limited & another
    (2015) eKLR
  • Civicon Limited v. Kivuwatt Limited and 2 others
    (2015) eKLR
  • Joseph Njau Kingori v Robert Maina Chege & 3 others
    (2002) eKLR
  • Mombasa Beach Houses Company Limited & Aayo Investments & Services Co. Limited v First Community Bank Limited & David Mureithi Kanyi (Interested Party)
    HCCC No. 32 of 2018
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Sections 150 and 101 of the Land Act and Land Registration Act; Order 1 Rule 10(2) and Order 51 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Omokwe & 10 others v Kanyi & another; Premier Bank Limited (Formerly First Community Bank Limited/Applicant) (Intended Interested Party) (Environment & Land Case E003 of 2023) [2024] KEELC 5619 (KLR)", Case Analysis (2024). ELC Case No. E003 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5619/eng@2024-07-25

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