[2014] KEHC 1425 (KLR)
The court found that the objection raised by the 1st and 2nd Defendants regarding jurisdiction was substantial and involved significant questions of law concerning the proper forum for disputes involving interests in land arising from charge instruments. Given the constitutional and statutory provisions cited, the...
Source-derived case information.
- Citation
- [2014] KEHC 1425 (KLR)
- Parties
- Plaintiff: Cyrus Musembi Munyaka; Defendant: Garama Auctioneers; Defendant: Housing Finance Company of Kenya; Defendant: Britam Insurance (also known as British American Insurance Co. (K) Ltd)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 67 of 2014
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection and Interlocutory Injunction
- Outcome
- Matter referred to the Chief Justice for empanelment of a bench; interim injunction extended.
- Judges
- MM Kasango
- Legal Topics
- Jurisdiction of High Court, Statutory Power of Sale, Injunctions, Environment and Land Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cyrus Musembi Munyaka
Plaintiff
Garama Auctioneers
Defendant
Housing Finance Company of Kenya
Defendant
Britam Insurance (also known as British American Insurance Co. (K) Ltd)
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection and Interlocutory Injunction
Legal Issues
- 1 Whether the High Court (Commercial Division) has jurisdiction to hear disputes involving interests in land arising from a charge instrument.
- 2 Whether the matter should be heard by the Environment and Land Court under Article 165(5)(b) of the Constitution and Section 13 of the Environment and Land Court Act.
- 3 Whether the interim injunction restraining sale of the charged property should be extended pending determination of jurisdiction.
Ratio Decidendi
The court found that the objection raised by the 1st and 2nd Defendants regarding jurisdiction was substantial and involved significant questions of law concerning the proper forum for disputes involving interests in land arising from charge instruments. Given the constitutional and statutory provisions cited, the court determined that the matter should be referred to the Chief Justice for empanelment of a bench to resolve the jurisdictional issue under Article 165(4) of the Constitution. Pending further orders, the interim injunction restraining the sale of the charged property was extended.
Court Disposition
Matter referred to the Chief Justice for empanelment of a bench; interim injunction extended.
Orders
- The issues herein are certified as raising a substantial question of law and the matter is referred to the Chief Justice for empanelment of judges under Article 165(4) of the Constitution.
- The file shall be forwarded to the Chief Justice for directions.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 67 OF 2014
CYRUS MUSEMBI MUNYAKA ………………....................................PLAINTIFF
-V E R S U S-
GARAMA AUCTIONEERS
HOUSING FINANCE COMPANY OF KENYA
BRITAM INSURANCE (also known as BRITISH AMERICAN INSURANCE CO. (K) LTD …………………….......................DEFENDANTS
RULING
I have anxiously considered this matter and more particularly the objection raised by 1st and 2nd Defendants in respect to this Court’s jurisdiction over this matter. Those Defendants submitted that this Court lacks jurisdiction to determine this matter.
What was before me was an injunction application. The Plaintiff by Notice of Motion dated 27th May 2014 sought an injunction to restrain the 1st and 2nd Defendants from selling by public auction Plaintiff’s charged property in the exercise of 2nd Defendant’s Statutory Power of Sale.
1st and 2nd Defendants raised an objection that by virtue of Article 165 (5)(b) of the Constitution the Commercial Division of the High Court does not have jurisdiction to entertain this matter, because the 2nd Defendant by virtue of the charge instrument dated 2nd August 2012 obtained an interest in land. That accordingly and because of the provisions of Article 165(5)(b) of the Constitution and Section 13(1) and (2) of the Environment and Land Court Act the only Court which has jurisdiction to entertain this case is the Environment and Land Court.
If the objection raised is upheld it will have very great ramification not only to the case load of both the Commercial Divisions of the High Court and the Environment and Land Court but also on whether suits such as this one should be struck out for being filed in the wrong Court. In my view the issues raised by that objection are of substantial question of law requiring more than one mind.
Accordingly I do hereby certify that the issues herein indeed raise a substantial question of law and I do hereby refer this matter to the Hon. The Chief Justice for His Lordships empanel Judges to hear it as provided under Article 165(4) of the Constitution. This file shall therefore be forwarded to the Hon. The Chief Justice for directions.
Until further orders of the Court the interim injunction is hereby extended.
DATED and DELIVERED at MOMBASA this 27TH day of NOVEMBER, 2014.
MARY KASANGO
JUDGE