Kirigo & 9 others v Kanyi & 2 others (Environment & Land Case E022 of 2023) [2024] KEELC 5812 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to stop a bank's sale of buyers' homes because no sale process—notice, valuation, or advertisement—had yet started.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over disputes concerning statutory power of sale
The ELC has jurisdiction because the predominant issue is ownership of the suit properties and the legality of the charge, not merely the exercise of statutory power of sale.
Relying on Co-operative Bank v Kangethe Njuguna and Thomas Mutuku Kasue, the court accepted that charges, mortgages, dues and rents fall to the High Court. However, on the pleadings, the plaintiffs claim purchasers' interests and allege the 1st Defendant fraudulently charged properties he had already sold. The substratum is ownership and validity of the charge, which is within Section 13 of the ELC Act.
Whether an interlocutory injunction should issue
No injunction issued: although a prima facie case and potential irreparable loss were shown, there was no imminent threat of sale and the balance of convenience favoured the 2nd Defendant.
Applying Giella v Cassman Brown sequentially and Mrao's definition of a prima facie case, the court found purchasers' interest demonstrated a prima facie case and that sale would cause irreparable loss. However, the auctioneers' 45-day notice had not been served, no valuation done and no advertisement published, so no sale was imminent; the plaintiffs may return when the process is activated.
Legal principles established
#- Matters whose predominant issue is the exercise of a chargee's statutory power of sale, mortgages, charges, collection of dues and rents fall within the exclusive jurisdiction of the High Court, not the Environment and Land Court, but where the predominant question is ownership of land and the validity of a charge, jurisdiction lies with the ELC.
- An injunction will not issue where no imminent threat of sale exists, as statutory pre-sale processes have not been activated.
Court orders
#- 1.The Notice of Motion application dated 11th September 2023 is dismissed
- 2.Costs of the application awarded to the 2nd Defendant-Respondent
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirigo & 9 others v Kanyi & 2 others (Environment & Land Case E022 of 2023) [2024] KEELC 5812 (KLR)", Case Analysis (2024). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5812/eng@2024-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.