Transfleet Limited & another v Middle East Bank Kenya Limited & 3 others; Singh (Interested Party) (Environment and Land Case E018 of 2024) [2024] KEELC 6513 (KLR)
The bottom line
#The Environment and Land Court struck out a challenge to a bank's property auction, ruling that disputes over charges and statutory power of sale belong in the High Court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over disputes centred on charges and statutory power of sale
The ELC lacks jurisdiction where the substratum of the suit is a legal charge and the exercise of statutory power of sale; such disputes fall within the High Court's civil jurisdiction
Relying on Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, the court held that charging land is not 'land use' under Article 162(2)(b), and disputes over statutory notices and amounts due under a charge belong to the High Court. The court followed Lydia Nyambura Mbugua v Diamond Trust Bank and Thomas Mutuku Kasue on identifying the predominant issue. Having found the suit's substratum to be the charge and statutory notices, it declined jurisdiction.
Whether a suit filed without jurisdiction can be transferred to the High Court
No. A suit filed without jurisdiction is a nullity ab initio and non-transferable; it can only be withdrawn or struck out
Following Albert Chaurembo Mumba (Supreme Court), Phoenix of E.A. Assurance v S.M. Thiga (Court of Appeal) and Kagenyi v Musirambo, the court held that transfer would sanctify an incompetent suit and that jurisdiction cannot be conferred by consent or by judicial craftsmanship. Accordingly, the 1st Defendant's application dated 15/05/2024 was allowed and the suit struck out with costs rather than transferred.
Third Defendant's application to be struck out of the suit and 2nd Defendant's application for extension of time
Not determined on the merits, as the court's want of jurisdiction disposed of the entire suit
The court framed the jurisdictional question first and, having found it lacked jurisdiction to consider the claim as raised in the plaint, struck out the suit. The applications by the 2nd Defendant (extension of time) and 3rd Defendant (striking out) were therefore overtaken by the striking out of the whole suit and were not adjudicated on their merits.
Legal principles established
#- Where the predominant issue in a suit involves mortgages, charges, collection of dues and the issuance of statutory notices in respect of charges, jurisdiction lies with the High Court, not the Environment and Land Court
- A suit filed in a court without jurisdiction is a nullity ab initio and cannot be transferred to a competent court; parties cannot confer jurisdiction by consent
Court orders
#- 1.The Plaintiffs' suit is struck out with costs
- 2.The Plaintiffs to pay the 1st Defendant costs of the 1st Defendant's Application dated 15/05/2024
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; objection under Article 165(3) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Transfleet Limited & another v Middle East Bank Kenya Limited & 3 others; Singh (Interested Party) (Environment and Land Case E018 of 2024) [2024] KEELC 6513 (KLR)", Case Analysis (2024). Not stated in judgment (Plaint dated 23/01/2024 with four applications dated 23/01/2024, 21/02/2024, 25/07/2024 and 15/05/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6513/eng@2024-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.