[2023] KEELC 16332 (KLR)

HFC Limited v Campus Hostels Limited & another (Environment and Land Case Civil Suit E73 of 2022) [2023] KEELC 16332 (KLR) (7 February 2023) (Ruling)

Neutral citation: [2023] KEELC 16332 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment and Land Case Civil Suit E73 of 2022

LL Naikuni, J

February 7, 2023

Between

HFC Limited

Plaintiff

and

Campus Hostels Limited

1st Defendant

Ezekiel Gathigo Macharia

2nd Defendant

Ruling

I. Introduction 1. The Honorable Court was moved by “Campus Hostels Limited and Hezekiel Gathigo Macharia, the 1st and 2nd Defendants herein by filing a Notice of Preliminary Objection dated 19th September, 2022. The 1st Defendant raised the following five (5) grounds of objection: -a.THAT this Honourable Court lacks jurisdiction to hear and determine this suit.b.THAT the parcel of land known as Land Reference Numbers MOMBASA/BLOCK XVII/1585 the subject matter of this suit is and remains the subject matter in HCCC NO. 4 OF 2016 which suit is still pending in Court.c.THAT if the Plaintiff purchased the suit property in a public auction on 18th July, 2019, which auction was being challenged in HCCC NO. 4 OF 2016, then the Plaintiff as the successful bidder in the said public auction should move the very same court to obtain vacant possession.d.THAT the Plaintiff, as a Chargee and in exercise of its statutory power of sale, unlawfully and illegally sold the property to itself when in fact it was not a bidder at the auction.e.THAT the Plaintiff contravened the provisions of Section 100 of the Land Act, 2012 by purchasing the suit property in a public auction that it had arranged as Chargee.

II. Submissions 2. When this matter came up for directions on 22nd September, 2022, the parties agreed to canvass the said preliminary objection by way of written submissions. Pursuant those directions given by the Honorable Court, the 1st Defendant and the Plaintiff filed their written submissions by the time the Honorable Court reserved to write this ruling.

A. Written Submissions by Defendant**__ 3. On 17th October, 2022, the Law firm of Messrs. Omondi Waweru & Co. Advocates for the Plaintiff filed his written submissions dated 14th October, 2022. ……………………the Learned Counsel submitted that the subject matter of the instant suit was the suit property. The Plaintiff alleged that it purchased the property in a public auction on 18th July, 2019.

4. The Learned Counsel informed Court that the issue of the public auction arose in “Mombasa HCCC no. 4 of 2016 - Campus Hostels limited – Versus - Housing Finance company limited & another. The Plaintiff herein as the Chargee and in exercise of its statutory power of sale arranged for the said public auction. The Plaintiff went ahead to transfer the suit property to itself when in fact it was not among the bidders in the said public auction. As stated by the Plaintiff in its submissions and quoted herein: “Plaintiff brought this suit seeking, among others, an order for the eviction of the 1st and 2nd Defendants from Title No. MOMBASA/BLOCK XVIII/1585”.

5. The Learned Counsel submitted averred that nothing would have been easier than for the Plaintiff filing the very same application herein in the High Court being Civil Suit No. HCCC (Mombasa) 4 of 2016. This was the suit the 1st Defendant had filed to stop the sale of the suit property from being sold by the Plaintiff itself. The said Civil Case before High Court was alive and still seized of matters relating to the suit property. Thus, the Counsel held, this Honorable Court lacked jurisdiction to hear and determine the case. The Counsel emphasized that the facts in respect of the issues surrounding the suit property spoke for themselves.

6. Further, the Learned Counsel submitted that this was an issue that turns on the very peculiar nature and circumstances in respect of the suit property and the different hats won by the Plaintiff as the “main actor”. They agreed if the successful bidder in the public auction was a party other than the Plaintiff, then such a Purchaser would have every right to institute a suit in this Honourable Court seeking the very same orders and prayers sought by the Plaintiff in its application dated 4th July, 2022.

7. The Learned Counsel submitted that in the High Court, HCCC NO. 4 of 2016 where the public auction was born, nurtured and staged, the Plaintiff was not only a party to the suit, but the Chargee who staged managed the said sale. The Plaintiff claimed to have purchased the suit property in that very same auction. Although the Plaintiff claimed to have purchased the suit property as aforesaid, the Plaintiff was afraid to pursue recovery of the suit property in the Civil Suit before the High Court because it was aware that its fraudulent and unlawful acquisition of the suit property would be uncovered.

8. The Learned Counsel submitted that by instituting this suit, the Plaintiff simply intended to sanitize an illegally acquired title to the suit property. But in so doing, the Plaintiff was trying, through the back door, to take away the matter from the High Court, which court in their humble submission had jurisdiction and continued to be seized with the matter to date.

9. The Learned Counsel on this point relied on the Court of Appeal case of: “Owners of the Motor Vessel “Lillian” – Versus - Caltex Oil (Kenya) Limited [1989] eKLR, held that jurisdiction is at the centre of any trial and a court should be sensitive to that before disposing of it, for without jurisdiction, nothing moves. The Court stated thus:-“Jurisdiction is everything. Without it, a Court has not power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

10. Additionally, the Learned Counsel relied on a more recent decision of:- “Phoenix of EA Assurance Co. Limited – Versus - SM Thiga [2019] eKLR, where the Court of Appeal said:“…Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a compliant one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself…”

11. The Learned Counsel submitted that if the Plaintiff was confident about the legality and lawfulness of the actions and conduct with regard to the public auction and the subsequent transfer of the suit property to itself, then the Plaintiff should similarly be confident about lodging its application for vacant possession in the High Court, there it all began. It was the High Court that has jurisdiction. It was the fight between the Plaintiff and the 1st Defendant that had muddied the waters in the High Court. By coming to this Honourable Court, the Plaintiff was on a sly mission to rinse and clean itself in the clean and fresh waters of the Environment and Land Court. They urged the Honourable Court to send the Plaintiff back to the “unsavoury waters” of the High Court for appropriate cleansing.

12. It was the Learned Counsel’s submission that the Plaintiff had instituted this suit as the highest bidder and purchaser of the suit property in the public auction. The Plaintiff was not a bidder at the auction and could not possibly be said to be the lawful purchaser. In essence, the Plaintiff was a criminal having fraudulently transferred the suit property to itself. It was akin to a Judge being the beneficiary of the judgment that he himself had delivered. The auction was arranged by the Plaintiff as Chargee in exercise of its statutory power of sale. The fraudulent acquisition of the transfer and title by the Plaintiff was conduct that should not be allowed to clothe this Honourable Court with jurisdiction.

13. The Learned Counsel averred that in ”Mukisa Biscuit Manufacturing Co. Limited – Versus - West End Distributors ltd (1969) EA 696 Law J.A had the following to say:“So far as I’m aware, 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 jurisdiction of the court, a pleas of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration....”

14. The Learned Counsel submitted that Ojwang J (as he was then) restated the statement of law in respect of a Preliminary objection in:- “Oraro – Versus - Mbaja [2005] KLR 141, where he said:“A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed. Where a Court needs to investigate facts, a matter cannot be raised as a preliminary point… Anything that purports to be a preliminary objection must not deal with disputed facts , and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence...”

15. The Learned Counsel submitted that the issues relating to the suit land were brewed in the hallowed kitchen of the High Court. Under the contents of Paragraphs 7 and 8 in the Plaintiff’s submissions, the Plaintiff had referred to several rulings delivered by the High Court in respect of the suit property. By filing the suit in this Honourable Court, the Plaintiff was in essence inviting the Honourable Court to “…..descend into the arena of conflict and take over the rile of umpire of my Honourable brother Judge. They urged the Court to decline the invitation and remain a bystander and thus allow the High Court to resolve the conflict.

B. Written Submissions by the Plaintiff 16. On 26th September, 2022, the Learned Counsel for the Plaintiff herein, the Law firm of Messrs. Muriu Mungai & Co. Advocates filed their written submissions dated 26th September, 2022. Mr. Kongere Advocate submitted that the Plaintiff brought this suit seeking, among others, an order for the eviction of the 1st & 2nd Defendants from all that parcel of land known Land Reference Numbers Title No. Mombasa/Block XVII/1585 (hereinafter referred to as “The Suit Property”).

17. However, the 1st & 2nd Defendants contended that since there was in existence another Civil Suit being, HCCC (Mombasa) No. 4 of 2016 between the Plaintiff and the 1st Defendant, the reliefs in this suit should be sought in that suit and not in a fresh suit. In essence, the 1st & 2nd Defendants, argued that the Environment & Land Court lacks the jurisdiction to entertain this suit. Primarily, this was the gist of their Preliminary Objection dated 19th September, 2022. Thus, in their consideration, the sole issue for determination was whether the reliefs sought here should be sought before the High Court.

18. The Learned Counsel submitted that they had deliberately eschewed any considered response to grounds numbers 4 & 5 of the Preliminary Objection. That was because those grounds invited the Court to cause an interrogation of the disputed facts or to exercise discretion. Those grounds therefore could not form the subject of a preliminary objection. He opined that the 1st Defendant here obtained financial accommodation from the Plaintiff on the security of a charge over the suit property. There was default in servicing the loan. The 1st Defendant’s first attempt at thwarting the Plaintiff’s exercise of the statutory power of sale was rejected vide a ruling delivered on 5th September, 2016 in HCCC (Mombasa) No. 4 of 2016. There had been three other applications by the 1st Defendant to that end, all of which were dismissed on 26th October 2016, 11th May 2017 and 23rd April 2020 respectively. The Plaintiff then sold the suit property on 18th July 2019 and got it registered in its name on 20th May 2020.

19. The Learned Counsel submitted that despite of the sale, the 1st & 2nd Defendants refused to give vacant possession of the suit property. Therefore, for this reason, the Plaintiff filed this suit to obtain vacant possession, as well as mesne profits for the period when the 1st & 2nd Defendants had continued to unlawfully occupy the suit property. According to the Counsel, from the responses by the 1st Defendant they proceeded to do two things. First, it raised the preliminary objection that was subject of these submissions. Second, it filed an application dated 13th September 2022, before the High Court being HCCC (Mombasa) No. 4 of 2016. In that application, they sought to reverse the sale that had happened on 18th July, 2019 holding that it was not enforceable in this suit or in HCCC (Mombasa) No. 4 of 2016. The Counsel stated while putting it differently, which of the two Courts - the ELC or High Court, had the legal mandate to assess and determine the issue of the sale of the suit property and the resultant title.

20. The Learned Counsel submitted that it was clear to the Defendants and based on the legal rationale founded in the famous case of:-“Co - operative Bank of Kenya Limited – Versus - Patrick Kangethe Njuguna & 5 Others [2017] eKLR”, it was confirmed that by the time the 1st Defendant moved to the High Court HCCC (Mombasa) No. 4 of 2016 to challenge the Plaintiff’s intended exercise of the statutory power of sale, the transaction was of a commercial dispute and nature whereby the High Court had jurisdiction. In any case, at that point, no one was questioning the creation of the charge.

21. However, the Learned Counsel argued that once the suit property got sold and a Certificate of title deed issued to the Highest bidder, any challenge to or enforcement of the resultant title, became a new cause of action to be determined by the different Court which was the ELC. On this point, the Counsel relied of the case of”Twin Buffalo Safaris Limited – Versus - Business Partners International Limited [2015] eKLR;“The best course to follow is to file a fresh suit on the sale and or for damages wherein all the arguments advanced in support of proposed amendments will be canvassed and determined among the parties quite independent of the other issues in the Plaint herein which are not related to the sale of the suit property. This course will not sow multiplicity of suits but rather will avoid difficulties or absurdities which may arise in trying to adjudicate upon causes of action that are irreconcilable or inconsistent.”

22. On this point, the Learned Counsel submitted that if the end goal of the challenge was to enforce or revoke the resultant title, as it was in the instant case here, that challenge ought to be taken in a new suit. The new suit must be in the ELC. This was because as Munyao J. noted in the case of:- “Lydia Nyambura Mbugua – Versus - Diamond Trust Bank Kenya Limited & Another [2018] eKLR;“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…”

23. The Learned Counsel made reliance to decision by Mativo J. (as he was) in the case of:- “Republic – Versus - Inspector General of National Police Service & 2 Others ex parte NCBA Bank Kenya PLC – Mombasa High Court JR Application No. E048 OF 2021 (Unreported) thus:-“By now it is beyond peradventure that a transfer by a charge pursuant to a sale by a public auction is by itself a transfer of an interest in land. So, the question is whether the dispute before me involves an interest in land. Going by the above definitions, the answer is yes.”

24. The Learned Counsel submitted that having found that a sale by charge was a transfer of an interest in land, the Learned Judge then declined jurisdiction in these words:-“The intention of the Constitution is that if an issue arises touching on land in respect of its use, possession, control, title, compulsory acquisition or any other dispute touching on land, then this court has no jurisdiction (ex parte NCBA (supra).”

25. The Learned Counsel submitted that it is also worth noting that the reliefs sought here are for vacant possession, “Mense profits” and general damages. Faced with those exact reliefs, this is what Court stated in the ”Paul Gichuri Kariuki & Another – Versus - Wangui Kariuki [2018] eKLR inter alia:-“The Plaintiffs then prayed for vacant possession, mesne profits and general damages all combined into a single prayer.In the face of this material before me, I am persuaded that although this appeal was admitted and directions taken for its hearing in this Court, it ought to be heard and determined in the Environment and Land Court.”

26. The Learned Counsel opined that they were therefore at a loss why the ELC, whose jurisdiction it is to grant such reliefs, would abdicate jurisdiction merely because of the existence of a part Charger - Chargee relationship. They were reminded of the words of Marshall CJ in the case of:- ”Cohens – Versus - Virginia 19 U.S. 264 (1821) that the Courts:- “have no more right to decline the existence of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution”.

27. The Learned Counsel concluded that it must be beyond argument that none of the reliefs sought here could be granted by High Court in the Civil Case HCCC (Mombasa) No. 4 of 2016. He emphatically concluded, therefore, the suit was properly before the only competent court.

III. Analysis and Determination 28. I have keenly considered all the issues raised from the Notice of Preliminary Objection by the Defendants, the written submissions and the plethora of authorities relied on by all the parties herein and the relevant provision of the Statutes.

29. In order to arrive at an informed, just, fair and reasonable decision, the Honorable Court has framed five (5) for its determination in the Notice of Preliminary Objection: -a.Whether the Preliminary Objection brought by the Defendants meets the threshold of an objection?b.Whether the Environment and Land Court has jurisdiction to entertain the suit as it is and as filed by the Plaintiff?c.Whether this suit is sub judice?d.Whether the Plaintiff contravened the provision of Section 100 of the Land Act No. 6 of 2012 by auctioning the suit property to itself?e.Who will bear the Costs of the objection

Issue No. a). Whether the Preliminary Objection by the Defendants meets the threshold of an objection 30. According to the Black Law Dictionary a Preliminary Objection is defined as being:“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”

31. The above legal preposition has been made graphically clear in the now famous case of ”Mukisa Biscuits Manufacturing Co. Limited –Versus - West End Distributors Limited [1969] E.A. 696. Where Lord Charles Newbold P. held that a proper preliminary objection constitutes a pure points of law. The Learned Judge then held that:-“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary objection. A preliminary Objection is in the nature of what used to be a demurer 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 in the exercise of judicial discretion. The improper raising of points by way of Preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”

32. I have further relied on the decision of ”Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR:- as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection inter alia:-i.A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.ii.A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; andiii.The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.

33. It is trite law that a preliminary objection can be brought at any time at least before the final conclusion of the case. Ideally, all facts remaining constant, it should be filed at the earliest opportunity of the subsistence of a case, in order to pave way for the smooth management and determination of the main dispute in a matter. From the most of them of the issues and facts of contention in this objection are to be adduced during a full trial. In this instant objection the Defendants contend mainly on the jurisdiction of the court, the proper procedure of the Auction by the Plaintiff under Section 100 of the Land Act.

34. By and large, it is the Court’s humble opinion that the Preliminary Objection has met the prerequisite threshold of an objection hence proceeds to deal with whether the other issues objected to by the Defendants have any merit or not.

Issue No. b). Whether the Environment and Land Court has the jurisdiction to entertain the suit as it is and as filed by the Plaintiff 35. The broad jurisdiction of the Environment and Land Court is donated by Article 162 of the Constitution which establishes the three tiers of Kenya’s Superior Courts. It provides thus:1)The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts referred to in clause (2)2)Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to-a)employment and labour relations; andb)The environment and the use and occupation of, and title to, land.3)Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2)4)The subordinate courts are the courts established under Article 169, or by Parliament in accordance with that Article.

36. In the discharge of the mandatory obligation placed on it by the Constitution, Parliament enacted the Environment and Land Court Act, No. 19 of 2011 (Hereinafter referred to as “The ELC Act”) and set out in details, the jurisdiction of the Court. The provision of Section 13 of the Act outlines the jurisdiction of the court as follows:-13Jurisdiction of the Court1)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 interest in land; ande)any other dispute relating to environment and land.3)Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and health environment under Articles 42, 69 and 70 of the Constitution.4)In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court5)Deleted by Act No. 12 of 20126)Deleted by Act No. 12 of 20127)In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems fit and just, including-a)interim or permanent preservation orders including injunctions;b)prerogative orders;c)award of damages;d)compensation;e)specific performance;f)restitution; org)declaration; orh)costs

37. Notably, under the provision of Article 165 (5), the Constitution expressly bars the High Court against exercising jurisdiction in respect of matters reserved for the Supreme Court or falling within the jurisdiction of the third tier superior courts established under Article 162(2) of the Constitution. Article 165(5) of the Constitution provides thus:“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)”

38. Therefore, a plain reading of the above constitutional and statutory framework on the jurisdiction of the Environment and Land Court reveals that the Environment and Land Court which is the court contemplated under Article 162(2)(b) of the Constitution, has a broad constitutional jurisdiction to hear and determine disputes relating to the environment and the use, occupation, and title to land. In so doing, Parliament under the provision of Section 13(7) of the ELC Act empowered the Court to make any order or grant any relief as the Court deems fit and just, including interim and permanent preservation orders. Parliament did not limit the jurisdiction to grant interim or permanent preservation orders to civil processes only. It simply gave the Court jurisdiction to issue preservation orders. It is therefore my view that, if Parliament wanted this particular jurisdiction to be restricted only to civil processes, it would have done so. In its wisdom, it did not restrict the court’s jurisdiction to grant preservation orders to civil processes alone.

39. It is not lost to me that, in its day to day adjudication of disputes relating to environment and the use and title to land. It is expected that whenever the court is invited, in appropriate cases, it will be at liberty to exercise its jurisdiction under Section 13(7) of the ELC Act and issue conservatory orders relating to land and the environment.

40. I am therefore satisfied beyond doubt that under the provision of Section 13 (7)(a) of the ELC Act, this Court is clothed with and has jurisdiction to issue conservatory orders relating to both civil and criminal processes. That jurisdiction is however limited to matters relating to environment and the use and occupation, and title to land.

Issue No. c). Whether this suit is sub judice 41. Now turning to the issue of “the rule of Sub judice” as provided for under the provision of Section 6 of the Civil Procedure Act, Cap. 21 which provides as follows“6. No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.

42. From their filed Objections, the Defendants contended that the suit offends the doctrine of sub judice. That there is another suit between the same parties pending before the High Court being Civil Suit HCCC (Mombasa) No. 4 of 2016.

43. Certainly, it is well established and through numerous decisions, the issue has been put in clear and proper perspectives. In the case of:- Kenya National Commission on Human Rights – Versus - Attorney General; Independent Electoral & Boundaries Commission & 16 Others (2002) eKLR, the Supreme Court of Kenya held;“The purpose of sub - judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter-------When two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives”.

44. Additionally, in the case of ”Margaret Wachu Karuri – Versus - John Waweru Ribiro (2021) eKLR, the Court was faced with a similar question whether sub-judice can be raised as a preliminary point and held as follows:-“For the Court to determine whether the issues herein were directly and substantially in issue with the other suit, it is this court’s considered view that it will have to ascertain facts and probe evidence by ascertaining whether the issues raised in the instant suit are the same as the ones in the Appeal aforesaid and further interrogate the prayers sought whether they are the same and relate to the same issues. On whether or not the same is sub - judice, facts have to be ascertained and a preliminary objection cannot be raised on disputed facts. Therefore, this court holds and finds what has been raised by Defendant/Objector does not amount to a preliminary objection, and thus the preliminary objection is not merited. (Emphasis is mine)Consequently, the court finds and holds that the notice of preliminary objection dated 30th August, 2019, by the defendant/objector is not merited and the same is dismissed entirely with costs to the Plaintiff/Respondent”.

45. Further, I make reference to the decision by Mativo J. (as he was) in ”Republic vs Inspector General of National Police Service & 2 Others ex parte NCBA Bank Kenya PLC – Mombasa High Court JR Application No. E048 OF 2021 (Unreported) thus;“By now it is beyond peradventure that a transfer by a charge pursuant to a sale by a public auction is by itself a transfer of an interest in land. So, the question is whether the dispute before me involves an interest in land. Going by the above definitions, the answer is yes.”

46. The Learned Judge then declined jurisdiction in these words;“The intention of the Constitution is that if an issue arises touching on land in respect of its use, possession, control, title, compulsory acquisition or any other dispute touching on land, then this court has no jurisdiction (ex parte NCBA (supra).”

47. Wholesomely, I agree entirely with the legal reasoning in the above decision which are in all fours with the instant case. The Defendants would like to advance their objection which would definitely have to compel the Court to call for adducing of facts and empirical evidence as to the existence of another Court as alleged. This would call for the file and materials to be placed before it for ascertainment. Definitely, that is a process not sustainable though filing of a preliminary objection. This objection is premature as previously in this ruling the Court had already concluded that being that this suit deals with land and the vacant occupation of it.

48. For these reasons, therefore, I hold that the ELC Court has jurisdiction. Hence, it cannot dismiss the suit by way of an objection at this early stage just because there is a suit in the High Court dealing with the same subject matter and the same parties. This suit deals with land and is therefore before the correct court.

Issue No. d). Whether the Plaintiff contravened the provision of Section 100 of the Land Act, No. 6 of 2012 by auctioning the suit property to itself 49. The Defendants contended that the public auction was undertaken by the Plaintiff. It submitted that the Plaintiff did not satisfy the threshold provided to conduct an auction. The Defendants contended that the Plaintiff auctioned the property to themselves in contravention of the provision of Section 100 of the Land Act, no. 6 of 2012.

50. The provision of Section 100 of the Land Act provides: -“(1)Other than in the circumstances provided for in Sub Section (3) of chargee exercising the power of sale may, with leave of the court, purchase the property.(2)A Court shall not grant leave unless the chargee satisfies the court that a sale of the charged land to the chargee is the most advantageous way of selling the land so as to comply with the duty imposed on the chargee by Section 97(1).(3)If the charged land is to be sold by public auction, the chargee may bid for and purchase the charged land at the public auction so long as the price bid for the charged land is the greater of –(a)The highest price bid for that land at the auction and(b)An amendment equal to or higher than the reserve price, if any, put upon the land before the auction, whichever amount is the greater.(4)……………………”

51. Evidently, from the provisions of Section 100 of the Act, a Chargee can only purchase a charged property being sold in exercise of power of sale conferred under the charge with the leave of the Court and even then, such purchase would need to comply with the duty imposed on the Chargee by the provision of Section 97 (1). Procedurally, the Court before giving any leave has to be satisfied the purchase by the Chargee given the circumstances would be in the best interest of the Chargor such that the purchase by the Chargee would represent the highest possible price attainable at the point in time the purchase is being made. That is what is envisaged under the provision of Section 100 (3) of the Act. In my view for the sale to the chargee to be the most advantageous way of selling the land as Section 100 (2) envisages, the price obtained must be higher than all the bids obtained for the property at the public auction. The provision of Section 100 is couched in such a manner as to ensure where leave is granted for a Chargee to participate in the purchase of the land, the interest of the Chargor is not prejudiced and in that regard, the Chargeee is duty bound to exercise the duty of care imposed by Section 97(1) in carrying out the sale.

52. The provision of Section 97 (1) of the Act provides:-“(1)A Chargee who exercises a power to sell the charged land, including the exercise of the power to sell in pursuance of a court, owes a duty of care to the Chargor, any guarantor of the whole or any part of the sums advanced to the Chargor, any charge under a subsequent charge or under a lieu to obtain the best price reasonably obtainable at the time of sale.(2)A Chargee shall, before exercising the light of sale, ensure that a forced sale valuation is undertaken by a valuer.”

53. It is therefore not disputed that before the Plaintiff effected the sale of this land to itself, the proper and legal procedure was followed as per the provision of Section 100 of the Land Act.

Issue No. e). Who will bear the Costs of the objection 54. It is now trite law that the issue of Costs is at the discretion Courts. Costs mean the award that is granted upon a party at the conclusion of a legal action, process and/or proceeding of a litigation. The proviso of the Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs will follow the event. By event here it means the result of the said legal action, process or proceedings.

55. From the instant objection raised by the 1st and 2nd Defendants, the Honorable Court has found that the same is unmeritorious. For that reason, therefore, the Plaintiff are entitled to Costs.

IV. Conclusion and Disposition 56. The upshot of all this, and after conducting an indepth analysis to all the framed issues herein, the Court concludes by finding:-a.That the Notice of Preliminary Objection dated 19th September, 2022, by the Defendant be and is hereby dismissed for lack of merit.b.That for expeditious sake, this matter be fixed for hearing within the next one hundred and eighty (180) days from the date of the delivery of this ruling commencing from 24th July, 2023. There be a mention on 8th May, 2023 for Pre – Trial Conference under Order 11 of the Civil Procedure Rules, 2010 and other directions thereof.c.That the Costs of the Objection to be borne by the 1st and 2nd Defendants.

57. it is so ordered acordingly.

RULING DELIVERED, SIGNED AND DATED AT MOMBASA THIS 7TH DAY OF FEBRUARY, 2023. HON. JUSTICE L. L. NAIKUNIJUDGEIn the presence of:M/s. Yumna, Court Assistant;Mr. Kongere Advocate for the Plaintiff/Respondent.M/s. Wambui Advocate for the Defendant/Applicant.