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ELCPartially AllowedNot stated in the judgment (appeal by memorandum of appeal dated 21st June 2022)· [2024] KEELC 6389 (KLR)

Family Bank Limited v Omanga (Suing as the Personal Legal Representative of the Estate of Margaret Adhiambo Omanga - Deceased) & 3 others (Environment and Land Appeal E021 of 2022) [2024] KEELC 6389 (KLR)

Environment and Land Court
30 September 2024
1,757 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out an appeal over a land charge, confirming it has no jurisdiction over charge disputes.

What this practically means

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Executive summary

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The 1st respondent/applicant moved the Environment and Land Court at Homa Bay by an application dated 9th April 2024 under sections 1A, 1B, 3A and 79G of the Civil Procedure Act, seeking a finding that no appeal lies because the amended memorandum of appeal had been struck out, and in the alternative that the court lacks jurisdiction to hear the appeal. The application was supported by the 1st respondent's affidavit and submissions contending that the appeal was incompetent, lacked fundamental documents, and that the dispute concerned a defective charge document over which the court had no jurisdiction. The appellant/respondent, through the affidavit of Sylivia Wambani and submissions, urged the dominant issue test, relied on Article 159(2)(d) against procedural technicalities, and defended the record of appeal. The 2nd respondent supported the application. The court noted that a prior ruling of 12th March 2024 had struck out the appellant's amended and supplementary records of appeal, but that the original memorandum of appeal dated 21st June 2022 was filed within time under section 75 of the Civil Procedure Act. Applying the dominant issue test, the court found the principal order sought in the underlying plaint was the creation of a charge, which does not fall within Article 162(2)(b) of the Constitution or section 13 of the Environment and Land Court Act, following Cooperative Bank of Kenya Ltd v Patrick Kangethe Njuguna and Bank of Africa v TSS Investment. Relying on Owners of Motor Vessel Lillian 'S' and Republic v Karisa Chengo, the court held jurisdiction is fundamental and not a mere technicality curable under Article 159(2)(d), and that decisions made without jurisdiction are void. The application was allowed in terms of prayer 2 and the appeal struck out with no order as to costs.

Key legal issues

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Whether the Environment and Land Court has jurisdiction over an appeal whose dominant issue is the creation of a charge over land

Holding

The court lacks jurisdiction; a charge does not fall within Article 162(2)(b) or section 13 of the Environment and Land Court Act

Reasoning

The court applied the dominant issue test, identifying the principal order sought in the plaint as the creation of a charge instrument. Relying on the Cooperative Bank of Kenya decision, it held that a charge does not constitute use of land within Article 162, so the ELC has no jurisdiction over the charge. It rejected the appellant's reliance on Article 159(2)(d), holding jurisdiction is fundamental, not a technicality.

p. 3
02

Effect of lack of jurisdiction on the appeal

Holding

A decision made without jurisdiction is void; consequently the appeal was struck out

Reasoning

Relying on Owners of Motor Vessel Lillian 'S' and Republic v Karisa Chengo, the court held jurisdiction is everything and decisions rendered without it are void rather than voidable. Having found it devoid of jurisdiction, the court allowed the application in terms of prayer 2 and struck out the memorandum of appeal dated 21st June 2022.

p. 4

Legal principles established

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  • A charge is not one of the matters set out under Article 162(2)(b) of the Constitution or section 13 of the Environment and Land Court Act, hence the Environment and Land Court lacks jurisdiction over disputes relating only to the creation of a charge
  • Jurisdiction is a fundamental issue and not a technicality of procedure; Article 159(2)(d) is not a panacea for all manner of ills
  • Lack of jurisdiction renders a court's decision void as opposed to being merely voidable

Court orders

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  1. 1.The application dated 9th April 2024 is allowed in terms of prayer number 2 therein
  2. 2.The appeal originated by memorandum of appeal dated 21st June 2022 is struck out with no order as to costs
On appeal from
Homa Bay Chief Magistrate's Court (Environment and Land Court)
64 of 2018
Jurisdiction invoked
Articles 162 and 169 of the Constitution of Kenya 2010; sections 1A, 1B, 3A and 79G of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Family Bank Limited v Omanga (Suing as the Personal Legal Representative of the Estate of Margaret Adhiambo Omanga - Deceased) & 3 others (Environment and Land Appeal E021 of 2022) [2024] KEELC 6389 (KLR)", Case Analysis (2024). Not stated in the judgment (appeal by memorandum of appeal dated 21st June 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6389/eng@2024-09-30

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