Yurub Investments Limited v Diamond Trust Bank Kenya Limited & another (Environment and Land Case Civil Suit E203 of 2024) [2024] KEELC 6439 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a suit challenging a bank's property sale, ruling such disputes belong in the High Court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over challenges to a chargee's statutory power of sale
The ELC lacks jurisdiction; the dispute stems from the exercise of statutory power of sale which belongs to the High Court
The court found the crux of the dispute concerned whether the chargee complied with the charge instrument in exercising its statutory power of sale. Relying on Co-operative Bank of Kenya Ltd v Patrick Kang'ethe Njuguna and Bank of Africa Kenya Ltd v TSS Investment Ltd, it held that charges and their realization do not amount to 'use' of land under Article 162, and thus fall outside ELC jurisdiction. The plaintiff was accordingly non-suited.
Res sub-judice under Section 6 of the Civil Procedure Act
The suit is prohibited as res sub-judice since the same issues are live before the High Court in Nairobi HCC No. 139 of 2018 consolidated with HCC No. 451 of 2017
The court found the issues of the propriety of the statutory power of sale, validity of the sale and the transfer to the 2nd Defendant were live before the High Court, with related applications pending and stayed by the Court of Appeal. Applying the Supreme Court's enunciation of the sub-judice rule in KNCHR v Attorney General, it held the later suit should be stayed/struck out as the cause of action was substantially the same.
Abuse of the due process of the court
Filing the suit amounted to an abuse of court process intended to circumvent orders the plaintiff had failed to comply with
The court found the plaintiff, having failed to comply with conditions attached to injunction orders in the High Court, filed this suit to circumvent those orders and obtain collateral advantage, creating a situation where the ELC would superintend High Court orders. Relying on Satya Bhama Gandhi and Rutongot Farm Ltd, it held the suit was a gross misuse of court process warranting intervention.
Legal principles established
#- Disputes concerning the exercise of a chargee's statutory power of sale fall within the civil jurisdiction of the High Court, not the Environment and Land Court
- A court divested of jurisdiction must down its tools at the onset; proceedings conducted without jurisdiction are a nullity
Court orders
#- 1.The application dated the 13th June 2024 be and is hereby allowed.
- 2.The Plaintiff's suit vide Plaint dated the 21st May 2024 be and is hereby struck out.
- 3.The 1st Defendant/Applicant be and is hereby awarded costs of the preliminary objection; costs of the application and costs of the suit. Same to be borne by the Plaintiff/Respondent.
- Jurisdiction invoked
- Environment and Land Court Act, Section 13(2); Article 162 of the Constitution (as canvassed by the parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yurub Investments Limited v Diamond Trust Bank Kenya Limited & another (Environment and Land Case Civil Suit E203 of 2024) [2024] KEELC 6439 (KLR)", Case Analysis (2024). Plaint dated 21st May 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6439/eng@2024-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.