Muithya v Kenya Women Microfinance Bank Plc (Environment & Land Case E091 of 2023) [2024] KEMC 32 (KLR)
The bottom line
#A Machakos court struck out a bid to stop a land sale because only Kenya's High Court can hear disputes over a bank's statutory power of sale.
What this practically means
#Executive summary
#Key legal issues
#Whether the Magistrates' Court had jurisdiction over a dispute questioning the exercise of statutory power of sale
No - such disputes are commercial in character and fall within the exclusive jurisdiction of the High Court under Article 165(3)
Although filed as a Land and Environment Case, the court found the real dispute concerned the adequacy of the statutory notice of sale and the chargee's exercise of statutory power of sale following default. Following Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, jurisdiction over such accounting/charge disputes lies with the High Court. The Magistrates' Court's jurisdiction, defined by Parliament under Article 169(2) via sections 6-10 of the Magistrates' Courts Act, 2015, does not extend to such commercial disputes.
Whether lack of jurisdiction can be cured by consent or waiver
No - jurisdiction cannot be conferred by consent and orders made without jurisdiction are void, not voidable
Relying on Sir Ali Salim v Sharifi Mohammed Sharray and the Owners of Motor Vessel 'Lillian S' line of authority, the court held that judgments rendered without jurisdiction are nullities; jurisdiction flows from the Constitution or legislation and cannot be expanded by judicial craft or party consent.
Legal principles established
#- Jurisdiction may be raised suo motu by the court and is not a procedural technicality curable under Article 159(2)(d)
- A court without jurisdiction must down its tools immediately upon so finding
- Jurisdiction over disputes seeking to question the exercise of a chargee's statutory power of sale is reposed in the High Court, not the ELC or subordinate courts
Court orders
#- 1.The suit is struck out for want of jurisdiction
- 2.The Notice of Motion dated 15th November 2023 is struck out
- 3.Costs to the Defendant/Respondent
- Jurisdiction invoked
- Articles 162(4), 169(1)(a) and 169(2) of the Constitution; Magistrates' Courts Act, 2015 (sections 6-10)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muithya v Kenya Women Microfinance Bank Plc (Environment & Land Case E091 of 2023) [2024] KEMC 32 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/32/eng@2024-04-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.