[2024] KEELC 13695 (KLR)

Basmer (Asthe Administrator of the Estate of Ali Said Basmer (Deceased)) v I & M Bank Limited & another (Environment & Land Case E018 of 2024) [2024] KEELC 13695 (KLR) (11 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13695 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case E018 of 2024

NA Matheka, J

December 11, 2024

Between

Barka Said Basmer

Plaintiff

Asthe Administrator of the Estate of Ali Said Basmer (Deceased)

and

I & M Bank Limited

1st Defendant

Ranjitsingji Mangalsinhji Vaghela

2nd Defendant

Ruling

1. The 1st Defendant herein I & M Bank Limited, raised a preliminary objection in respect of the suit herein on the grounds that;1. Pursuant to Article 132 of the Constitution of Kenya, 2010, Section 13 of the Environment & Land Court Act and Section 150 of the Land Act, this Honourable Court lacks the requisite jurisdiction to hear and determine the suit herein.2. For the reasons set out in paragraph 1 above, the suit herein is incompetent and fatally defective.

2. The 1st defendant prays that the suit herein be struck out with costs.

3. The submissions by counsel for the 1st defendant gave the court more details on the substratum of the suit. The 1st defendant states that this dispute arises from an instrument of a charge dated 22nd November 2019 from the late Ali Said Basmer and the 2nd defendant t/a Coast Battery Distributors to the 1st defendant. The Deceased’s wife has instituted the suit on behalf of the estate of the deceased and has made allegations of impropriety against the 1st defendant in procuring the charge from the deceased.

4. The plaintiff submits that the defendants wrongfully dealt with the suit property and if not restrained would result in the plaintiff completely loosing the use and occupation of the suit property. That the charge was unlawfully acquired and that this is not merely an accounting issue as was the case in the court of Appeal case of Cooperative Bank of Kenya Limited vs Patrick Kangethe Njuguna & 5 Others (2017) eKLR relied on by the 1st defendant. That even if it was a case of concurrent jurisdiction the greater jurisdiction lies with this court.

5. I have considered the notice of preliminary objection and the submissions thereto. The only issue for determination is whether the defendant’s preliminary objection has satisfied the threshold or not. The leading decision on Preliminary Objections is the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd. (1969) EA 696, where the Court held as follows:a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”.

6. Similarly, the Supreme Court in Independent Electoral & Boundaries Commission vs Jane Cheperenger & 2 Others (2015) eKLR made the following observation as relates to Preliminary Objections:"… The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”

7. The point of law the 1st defendant argues is that this court does not have jurisdiction and they cited the case of Samuel Kamau Wachira vs KCB & 2Others, Civil Application No. 2 of 2012 (eKLR) where the court held that jurisdiction flows from the constitution or legislation or both. They quoted article 162 (2) (b) of the Constitution and Section 13 of the Environment and Land Act. They emphasize that the dispute arising is on the nature of the sale or the terms of the afore mentioned formal charge and placed reliance on the court of Appeal case of Cooperative Bank of Kenya Limited vs Patrick Kangethe Njuguna & 5 Others (2017) eKLR where the court held that the rights acquired by a lender in a charge had nothing to do with the use of the land.

8. In the case of Owners of the Motor Vessel M.V Lillian S. vs Caltex Oil (K) Limited (1989) KLR 1 the court held that without jurisdiction it has to down its tools. The issue of whether the ELC court has jurisdiction on charges or not is not a novel issue. Article 162 (2) & (3) of the Constitution requires inter alia, that;Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to-a)…b)The environment and the use and occupation of, and title to, land.” Emphasis added.

9. Article 260 of the Constitution, states that unless the context requires otherwise, ‘land’ includes-a)The surface of the earth and the subsurface rock;b)Any body of water on or under the surface;c)Marine waters in the territorial sea and exclusive economic zone;d)Natural resources completely contained on or under the surface; ande)The air space above the surface.”

10. This definition espouses the doctrine of Cujus est solum, eius est usque ad coelum et ad inferos (cujus doctrine) which translates to "whoever owns [the] soil, [it] is theirs all the way [up] to Heaven and [down] to Hell". A charge is an interest in land securing the payment of money or money’s worth or the fulfillment of any condition as defined by section 2 of the Land Act Cap 280 and the rights so acquired are limited to the realization of the security so advanced as per section 80 of the same statute. Section 150 Land Act provides: -"The Environment and Land Court established in the Environment and Land Court Act and subordinate courts as empowered by any written law shall have jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act”

11. The Land Registration Act under section 101 provides for the court that has jurisdiction as follows: -"The Environment and Land Court established by the Environment and Land Court Act, 2011 (No.19 of 2011) and subordinate courts, have jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.”

12. However, in Lydia Nyambura Mbugua vs Diamond Trust Bank Kenya Ltd & Another (2018) eKLR Munyao, J commenting on the application of the above highlighted jurisdiction provisions in the Land Act and the Land Registration Act stated thus;22. It will thus be seen from the above that it is the ELC and the empowered subordinate courts, which have jurisdiction to hear disputes relating to matters in the Land Act and Land Registration Act. This jurisdiction will inevitably cover all instruments created within these statutes, which must also encompass charges, and generally all proprietary transactions. The process of sale by chargee, which is what is questioned in this case, is a process that is laid down in the Land Act and Land Registration Act, (formerly in the Registered Land Act now repealed) and these statutes provide that the court with jurisdiction is the ELC. You see, the sale of a charged property by chargee, is really no different from a sale by one private individual to another (see the case of Stephen Kibowen -vs- Agricultural Finance Corporation (2015) eKLR). Both sales involve title and the process of acquisition of title to land. If one argues that the ELC has no jurisdiction to hear a dispute over the process of sale by a chargee, then it can as well be argued that the ELC has no jurisdiction to hear a dispute over a sale of land by one individual to another, which argument, I believe, will sound absurd. Let me reiterate again, that the process of sale of a charged property is governed by the Land Act and Land Registration Act, and these statutes provide that it is the ELC and the empowered subordinate courts which have jurisdiction.”

13. The constitution under Article 165 (5) ousts the High Court’s jurisdiction in matters where the ELC had jurisdiction as follows: -The High Court shall not have jurisdiction in respect of matters: -a.Reserved for the exclusive jurisdiction of the supreme court under this constitution: - orb.Falling within the jurisdiction of the courts contemplated in Article 162 (2).”

14. I find from the discussion above, that this court has jurisdiction to entertain the matter as it concerns occupation, use and title to land which I find is the dominant issue in the instant case. In this regard, I dismiss the notice of preliminary objection and with costs.It is so ordered.

DELIVERED, DATED AND SIGNED AT MOMBASA THIS 11THDAY OF DECEMBER 2024. N.A. MATHEKAJUDGE