[2022] KEHC 14166 (KLR)

Kimani & another v National Bank of Kenya Limited & 2 others (Civil Case E977 of 2021) [2022] KEHC 14166 (KLR) (Civ) (14 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14166 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Civil

Civil Case E977 of 2021

DO Chepkwony, J

October 14, 2022

Between

Simon Ngigi Kimani

1st Plaintiff

Rudufu Limited

2nd Plaintiff

and

National Bank of Kenya Limited

1st Defendant

Samson Mbuthia Kinyanjui

2nd Defendant

Edelweiss Limited

3rd Defendant

Ruling

1. Before this court for Ruling is the 2nd Defendant/Respondent’ Notice of Preliminary Objection dated January 24, 2022 and the 3rd Defendant’s Grounds of Opposition dated January 14, 2022 filed against the Plaintiff’s Application dated December 17, 2021.

2. The Plaintiffs/Applicants sued the Defendants vide a Plaint dated December 17, 2021 seeking for:-a.A declaration that the sale of the properties LR No Naivasha/ Maraigushu Block 4/51 and LR No Dagoretti/Riruta/S 129 (the ‘suit proerties’) was illegal, null and void as it offends the provisions of the law;b.Revocation of any titles that may have been issued to the 2nd and 3rd Defendants;c.A declaration that the eviction of the Plaintiffs from the suit properties was illegal;d.The 1st and 2nd Defendants to pay for special damages for the goods confiscated or stolen at the value stated by the Plaintiff;e.The 1st and 2nd Defendants to pay for the costs of the suit; and,f.Any other relief the court may deem fit.

3. The plaint was accompanied by an application seeking inter-alia:-a.Spent;b.Spentc.Spent;d.That an order of temporary injunction restraining the 2nd Defendant/Respondent if any person acting under his instructions from transferring, LR No Naivasha/Maraigushu Block 4/51 or using it as collateral security or interfering with it in any manner whatsoever pending the hearing and determination of this suit.e.Spent;f.That an order of temporary injunction restraining the 3rd Defendant/Respondent or any person acting under his instructions from transferring, LR No Dagoretti/Riruta/S 129 or using it as collateral security or interfering with it in any manner whatsoever pending the hearing and determination of this suit.g.That a temporary injunction do issue against the 2nd and rd Defendants/Respondents restraining them from interfering or disposing all moveable property in the disputed properties pending hearing and determination of this suit.h.That the costs be provided for.

4. The Preliminary Objection is premised on grounds that:-a.The matter as filed is fatally defective in form and procedure and does not lay in law;b.The court lacks jurisdiction to entertain this matter

5. The Grounds of Opposition on the other hand are premised on the grounds that :-a.this Honorable court lacks jurisdiction to hear and determine this matter;b.as against the 3rd Defendant, the suit and Application are an abuse of the court process and tainted by non-disclosure of material facts in view of the existence of ELC Case No E379/2021 Edel Weiss Limited v Simon Ngigi Kimani And Rudufu Limitedc.the orders prayed for cannot be granted as against the 3rd Defendant in view of;i.the orders issued in ELC Case No E379/2021Edel Weiss Limited vs Simon Ngigi Kimani And Rudugu Limitedii.the Plaintiffs/Applicants’ have not denied the default and realization of securityiii.the 1st Plaintiff lost his equity of redemption on May 18, 2021 upon the fall of the hammer at the auction;iv.the 3rd Defendant being a Purchaser of a charged property is protected under Section 99 of the Land Act No 6 of 2012. d.there is a misjoinder of causes of action and partiese.the Application is therefore an abuse of court processf.the Application is frivolous and vexatious

6. On January 26, 2022, the parties were directed to canvass the Objections, Opposition and application by way of written submissions. All parties complied with the said 2nd and 3rd Defendants filing their submissions dated February 8, 2022. The 1st and 4th Defendants submissions are dated February 18, 2022

7. I have read through the pleadings and written submissions by all parties herein. In consideration of the prayers sought in the pleadings and the grounds raised in the objection and opposition thereof, I have also read through the cted statute and case law, I find the main issue for determination being whether this court has jurisdiction to hear and determine this matter.

8. A Preliminary Objection is always raised on a point of law when if taken would dispose of a suit. In the celebrated case of Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd [1969], EA 696, Law JA stated as follows:-“So far as I am 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 ma dispose of the suit.”In the same Judgment, Sir Charles Newbold President stated:-“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”.

9. The objection and opposition raised in this case are on the jurisdiction of thiscourt which is a question of law. The Court of Appeal in the locus dessicis case of The Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989]KLR 1 has this to say on jurisdiction:-“Jurisdiction is everything. Without it, a court has no power to make one step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”.

10. In the case of John Kipng’eno Loech & 2 Others v Nakuru county Assembly & 5 Others[2013]eKLR, Emukule J on the same issue of jurisdiction stated thus:-“Jurisdiction is the practical authority granted to a formally constituted legal body to deal with and make pronouncements on legal matters and by implication to administer justice within a defined area of responsibility. It is the scope, validity, legitimacy or authority to preside or adjudicate upon a matter”.

11. From the prayers the Plaintiffs have sought for against the Defendants vide the Plaint dated December 17, 2021 it is quite glaring and more specifically prayer No (b) that they are praying that the court revokes titles, if any may have issued to the Defendants. These are powers which are a preserve of the Environment and Land Court upon being satisfied that the titles issued, if any, were issued irregularly or fraudulently. They are not available for the High Court.

12. Article 162 of the Constitutionprovides for the system of courts in Kenya. And Article 162(2) specifically provides that:-“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.

13. From this provision, it is clear that the Environment and Land Court is one of the courts established under the Constitutionwith equal status of the High Court and bequeathed with jurisdiction to hear and determine disputes relating to the environment and use and occupation of, and title to, land.

14. Following this, Parliament then enacted the Environment and Land Actwhich created the jurisdiction of this court under Section 13 thereof as follows:-“13[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.

15. Further, Section 150 of the Land Act provides as follows:-[150].The Environment and Land Court established in the Environment and Land Court Act is vested with exclusive jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.

16. The Supreme Court in the case of Republic v Karisa Chengo & 2 Others (Supreme Court Petition No 5 of 2015)[2017] eKLR, pronounced itself as follows on this issue:-“Flowing from the above, it is obvious to us that status and jurisdiction are different concepts. Status denotes hierarchy while jurisdiction covers the sphere of the court’s operation. Courts can therefore be of the same status, but exercise different jurisdictions. That is why this court has reaffirmed its position that the jurisdiction of courts is derived from the Constitution or legislation.In addition to the above, we note that pursuant to Article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act and the Employment and Labour Relations Act and respectively outlined the separate jurisdictions of the ELC and ELRC as stated above. From a reading of the Constitution and these Acts of Parliament, it is clear that a special cadre of Courts, with sui generis jurisdiction, is provided for. We therefore entirely concur with the Court of Appeal’s decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are different and autonomous Courts and exercise different and distinct jurisdictions. As Article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.”

17. Clearly, the reliefs claimed by the Plaintiffs in this dispute relate to matters of valuation, sale of land and revocation of titles, that may have been issued to the Defendants and not a commercial dispute between a Chargee and Chargor arising from a contract for a loan facility.

18. From the foregoing, I find that the issue of jurisdiction as raised in both the Notice of Preliminary Objection dated January 24, 2022 and Grounds of Opposition dated January 14, 2022 has merit, as the same is a matter of law.

19. In the circumstances, the Notice of Preliminary Objection and Grounds of Opposition having been found meritable, the suit vide a Plaint dated December 17, 2021 and Notice of Motion application dated December 17, 2021 are hereby transferred to the Environment and Land Court for trial and disposal.It is hereby so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 14thDAY OF OCTOBER , 2022. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Ongoto counsel for PlaintiffM/S Ndirangu counsel holding for Mr. Njoroge counsel for 1st DefendantMr. Omondi counsel holding brief for Mra. Onyango for 3rd DefendantCourt Assistant - Sakina