Upperview Properties Limited v Imperial Bank Limited (In Receivership) (Civil Suit 31 of 2017) [2024] KEELC 6679 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled it—not the High Court—must hear a bank's counterclaim challenging a landlord's land title, so the case continues.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over the Counter-Claim
The Court has jurisdiction to entertain the Counter-Claim dated 20th July 2018 because it directly challenges the acquisition and title of the suit property, Mombasa/Block XXIV/25, a matter reserved to the ELC under Article 162(2)(b) and Section 13 of the ELC Act
The Court examined the Counter-Claim in detail and found that although the dispute had commercial origins (fraudulently declared dividends), the reliefs sought went to cancellation of title, rectification of the register and restitution of land. Such relief can only be granted by the ELC under Sections 79, 80, 24, 25 and 26 of the Land Registration Act and Section 7 of the Land Act. Where title is alleged to have been fraudulently acquired, the ELC cannot down its tools.
Whether the Counter-Claim is sub judice HCCC No. 392 of 2016 and HCCC No. 523 of 2016
The doctrine of sub judice does not bar the Counter-Claim because the parties and subject matter of the two suits are not the same
Applying Section 6 of the Civil Procedure Act and the Supreme Court's decision in Kenya National Commission on Human Rights v Attorney General, the Court found that Upperview Properties Limited is not a party to HCCC No. 392 of 2016, that the prayers in that suit are commercial in nature (transfer of shares, damages) while the Counter-Claim's prayers concern disposition of land, and that the earlier suit's proceedings were stayed by the Court of Appeal.
Costs of the application
No orders as to costs, each party to bear its own, because the Court itself had suo moto triggered the jurisdictional and sub judice issues during a part-heard suit
While costs normally follow the event under Section 27(1) of the Civil Procedure Act, the Court exercised its discretion to withhold costs because the issues were raised suo moto by the Court for clarity while the suit was still proceeding, rather than being a straightforward inter partes application.
Legal principles established
#- Jurisdiction is everything; without it a court has no power to make one more step and must down its tools
- The ELC has jurisdiction where the predominant issue before court touches on title to land, notwithstanding that the dispute has commercial overtones
- A Counter-Claim is an independent cross-suit and the doctrine of sub judice applies to it only where the parties and subject matter are the same
Court orders
#- 1.That this Honourable Court has the jurisdiction to entertain the Counter-Claim dated 20th July, 2018 to its full hearing and determination
- 2.That the doctrine of sub-judice fails as the subject matter in HCCC No. 392 of 2016 is not similar to the subject matter in this instant suit
- 3.That the suit shall proceed on from where it had reached with the Plaintiff's and subsequent Defence case on 7th and 8th October, 2024
- 4.That there shall be no orders as to costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010; Sections 3 and 13 of the Environment and Land Court Act, No. 19 of 2011; Section 101 of the Land Registration Act, No. 3 of 2012; Section 150 of the Land Act, No. 6 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Upperview Properties Limited v Imperial Bank Limited (In Receivership) (Civil Suit 31 of 2017) [2024] KEELC 6679 (KLR)", Case Analysis (2024). Civil Suit No 31 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6679/eng@2024-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.