Sanyi Jituan Sense Investment Limited & another v Equity Bank Kenya Limited & another (Environment and Land Case E024 of 2024) [2025] KEELC 6384 (KLR)

3. The 1st Defendants case is that this court has no jurisdiction to determine the matter as the Plaintifis’ claims are primarily for breach of warranties and intended to restrain the 1st Defendant from exercising its statutory power of sale. 4. The parties filed submissions with the 1st defendant filing submissions in support of its Notice of preliminary Objection and in opposition to the application dated 7th March 2025. It was their argument that the issues raised in the application dated 24th January 2024 touched on the exercise of the 1st Respondent’s power of statutory sale and are not in any way related to use and occupation of and title to land as captured in section 13 of the Environment and Land Court Act from which this court derives its jurisdiction. The 1st Defendant contends that the matter is commercial in nature and ought to be heard in the Commercial Division of the High Court. Counsel refers the court to case law including; Cooperative Bank of Kenya Limited Vs Patrick Kangethe Njuguna & 5 others (2017) eKLR where the court indicated that this court does not have the jurisdiction to entertain disputes relating to exercise of a chargee’s statutory power of sale. 5. On the application the 1st Defendant submitted that the applicants have not met the conditions for issuance of injunctive orders as laid out in Nguruman Limited Vs Jan Bode Nielson& 2 others (2014) eKLR. That the applicant has not established a prima facie case as he has not denied obtaining credit from the 1st Respondent and as such the 1st Respondent is correct to exercise statutory power of sale to recover the debt. That the claim of breach of warranty should have been brought within 12 months of execution of the agreement. 6. Counsel further submitted that the applicants had failed to prove irreparable harm as the 1st Respondent which is a reputable bank could always compensate the Applicant. Counsel cited the case of Andrew Muriuki Wanjohi Vs Equity building Society Limited & 2 others (2006) eKLR in support of this argument. 7. The applicants by way of submissions dated 18th July 2025 submitted that the Preliminary Objection is not merited as the court is vested with jurisdiction to entertain the application as the predominant issue is on the validity of title more than on the question of the charge. Counsel argued that this being a question of legality of title, it is a dispute within section 13 of the Environment and Land Court Act which is within the jurisdiction of this court. 8. Counsel relied on the case of Suzane Butler and 4 others Vs Redhill Investors and another (2017) eKLR to advance this argument. On the question whether the application is merited, counsel submitted that a prima facie case had been established. It was submitted that the issues raised cannot be adjudicated upon at an interlocutory stage hence the need to maintain the status quo. On the question of limitation period for raising breach of warranty, counsel submitted that the applicant had only learned of breach well after the 12 month warranty period. Lastly counsel submitted given that there are status quo orders in ELC Petition E014 of 2014, the balance of convenience tilts in favour of issuing the orders sought. 9. The twin issues that the court has to determine are;Whether the court has jurisdiction to handle the matterWhether the court should grant the injunctive reliefs sought? 10. As has often been held, the question of jurisdiction is central to the legitimacy of any orders that a court makes hence must be determined at the earliest opportunity once raised. I reiterate the often cited words in the famous case of “Owners of Motor Vessel “Lilian S” – Versus - Caltex Oil (Kenya) Limited (1989) IKLR in which the court stated:“ Jurisdiction is everything. Without it, a court has no powers to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of the proceedings https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6384/eng@2025-07-03 2

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pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion it is without jurisdiction…………where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before Judgement is given”. 11. The Environment and Land Court is a creation of Article 162 (b) of the Constitution which donates to parliament the power to establish courts with the status of the High Court to hear and determine disputes relating to the Environment and the use and occupation of and title, to land. 12. The Environment and Land Court Act at section 13 defines the jurisdiction of the court thus; 1. The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. 2. In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes― a. relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; b. relating to compulsory acquisition of land; c. relating to land administration and management; d. relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; e. and any other dispute relating to environment and land. 13. It is now fairly well settled that arising from the holding in Cooperative Bank of Kenya –v- Patrick Kangethe Njuguna (2017) eKLR the High Court is the proper forum to litigate accounting matters owing to its unlimited original jurisdiction in Civil Matters. 14. However, there are instances where there are overlapping mandates such as in the instant case. Faced with such a case Ngugi J ( as he then was ) in the case of Suzane Butler and 4 others Vs Redhill Investors and another (2017) eKLR stated“When faced with a controversy whether a particular case is a dispute about land (which should be litigated at the ELC) or not, the Courts utilize the Pre-dominant Purpose Test: In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land, but the High Court has jurisdiction if the transaction is predominantly for the provision of goods, construction, or works. 24. 15. The Court must first determine whether the pre-dominant purpose of the transaction is the sale of land or construction. Whether the High Court or the ELC has jurisdiction hinges on the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale of land or, in this case, the construction of a townhouse” For the court to make this determination, the pleadings provide useful guidance. In the instant case, the Plaint prays for the following orders; i. A declaration that the 1st plaintifi is the legal and rightfully registered proprietor of all those properties known as being LR NO 28223/33/C4, LRNO 28223/33/C5, LR NO 28223/33/ C3, LR NO 28223/33/C7 and LR NO 28223/33/C8 situated along Kiambu Road https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6384/eng@2025-07-03 3

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ii. A declaration that the 2nd plaintifi is the legal and rightfully registered proprietor of LR NO 4858/4 located in Kileleshwa iii. A permanent injunction restraining the defendants or any of them either by themselves, through their agents, employees, servants and or any other persons acting or purporting to act under their instructions and/orders from in any way auctioning wasting, damaging, alienating, disposing or dealing with the suit properties or interfering with the plaintifi’s quiet possession of the same. iv. Costs of the suit 16. These are issues which are clearly within the jurisdiction of this court as defined by Article 162(2)b and Section 13 of the Environment and Land Court Act. 17. As to whether the sale should go on, it is a matter of record that third parties have surfaced, asserting an interest over the suit properties. It is also evident that there are other proceedings that are taking place in other courts. The court is of the view that in light of these factors, it is imperative that the status quo be maintained. 18. Consequently, the court issues the following orders; a. The Preliminary Objection dated 17th May 2024 is dismissed b. The status quo is to be maintained pending the hearing and determination of the suit c. Costs shall abide outcome of the main suit RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS ON 3RD OF JULY, 2025 JUDY OMANGE JUDGE In the presence of: Court Assistant Catherine Ms Irene Odhiambo for Mwae for Plaintifis Ms Mwangi for Kiragu Kimani for 1st Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6384/eng@2025-07-03 4

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