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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Environment and Land Court has jurisdiction over an appeal whose dominant issue is the creation of a charge over land
The court lacks jurisdiction; a charge does not fall within Article 162(2)(b) or section 13 of the Environment and Land Court Act
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.
Effect of lack of jurisdiction on the appeal
A decision made without jurisdiction is void; consequently the appeal was struck out
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.
Legal principles established
#- 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
#- 1.The application dated 9th April 2024 is allowed in terms of prayer number 2 therein
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.