[2024] KEELC 7396 (KLR)
The court determined that the dispute at hand is a commercial dispute relating to the exercise of statutory power of sale by a bank and does not concern the use, occupation, or title to land as contemplated by Article 162(2)(b) of the Constitution. The Environment and Land Court, therefore, lacks jurisdiction to...
Source-derived case information.
- Citation
- [2024] KEELC 7396 (KLR)
- Parties
- Plaintiff: Ronald Ratemo Moturi; Defendant: Credit Bank Limited; Defendant: Fanaka Junior School Limited; Defendant: Hfc Limited; Defendant: Land Registrar
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E007 of 2024
- Procedural Posture
- Notice of Motion / Ruling on Preliminary Objection and Jurisdiction
- Outcome
- Application dismissed for want of jurisdiction; suit transferred to the High Court, Kajiado.
- Judges
- LC Komingoi
- Legal Topics
- Jurisdiction of Court, Statutory Power of Sale, Transfer of Suit, Injunctive Relief, Land Disputes, Commercial Banking Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ronald Ratemo Moturi
Plaintiff
Credit Bank Limited
Defendant
Fanaka Junior School Limited
Defendant
Hfc Limited
Defendant
Land Registrar
Defendant
Procedural Posture
Notice of Motion / Ruling on Preliminary Objection and Jurisdiction
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to hear and determine the dispute relating to the exercise of statutory power of sale by the 1st Defendant.
- 2 Whether the dispute concerns use of land within the meaning of Article 162(2)(b) of the Constitution.
- 3 Whether the matter should be transferred to the High Court for determination.
Ratio Decidendi
The court determined that the dispute at hand is a commercial dispute relating to the exercise of statutory power of sale by a bank and does not concern the use, occupation, or title to land as contemplated by Article 162(2)(b) of the Constitution. The Environment and Land Court, therefore, lacks jurisdiction to entertain the matter. The proper forum for such disputes is the High Court, which has unlimited original jurisdiction in civil matters, including those involving commercial transactions and accounting issues. Consequently, the court ordered the transfer of the suit to the High Court at Kajiado for further directions, in accordance with the principle that a court must down its...
Court Disposition
Application dismissed for want of jurisdiction; suit transferred to the High Court, Kajiado.
Orders
- The matter is transferred to the High Court, Kajiado for directions.
- The suit is to be placed before the Deputy Registrar, High Court for directions on 4th December 2024.
Full Case Text
Judgment text and source record
34 paragraphs
Moturi v Credit Bank Limited & 3 others (Environment & Land Case E007 of 2024) [2024] KEELC 7396 (KLR) (7 November 2024) (Ruling)
Neutral citation: [2024] KEELC 7396 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case E007 of 2024
LC Komingoi, J
November 7, 2024
Between
Ronald Ratemo Moturi
Plaintiff
and
Credit Bank Limited
1st Defendant
Fanaka Junior School Limited
2nd Defendant
Hfc Limited
3rd Defendant
Land Registrar
4th Defendant
Ruling
1. This is the Notice of Motion dated 12th February 2024 brought under; (Order 40 Rules 1 and 2 of Civil Procedure Rules and Sections 1A, 1B, 3A and 63 (e) of the Civil Procedure Act (Cap 21) Laws of Kenya)
2. It seeks Orders;1. Spent.2. Spent.3. That pending the inter-parties hearing and determination of this suit, this Honourable court be pleased to grant a temporary injunction restraining the 2nd and 3rd Defendants, whether through their successors, assignees, servants, or agents, restraining them from trespassing, dealing, developing, constructing, entering, subdividing, leasing, further charging, transferring, selling, disposing, interfering, intermeddling or in any other manner whatsoever dealing with the parcels of land known as LR. No. Kajiado/Kaputiei-North/25599. 4.That pending the hearing and determination of this suit, an order of prohibition do issue prohibiting the 4th Defendant from registering any transfer, conveyance and/or instrument in respect of land parcel known as Kajiado/Kaputiei-North/25599. 5.That costs be provided for.
3. The grounds are on the face of the Applicants Notice of Motion and are set out in paragraphs a to J.
4. The Application is supported by the affidavit of Ronald Ratemo Moturi, the Plaintiff/Applicant herein, sworn on the 12th February 2024.
5. The Application is opposed. There is a Replying Affidavit sworn by Wainaina Francis Ngaruiya, Head of the Legal Department of the 1st Defendant on the 4th March 2024.
6. The 2nd Defendant/Respondent also opposed the Application through the Replying Affidavit dated 14th March 2024.
7. The 3rd Defendant/Respondent also opposed the Application through the Replying Affidavit sworn by Belinda Nyaga on the 2nd April 2024.
8. The 4th Defendant/Respondent did not participate in this application.
9. I have gone through the annextures to the 1st Defendant’s/Respondent’s Replying Affidavit. I note that the Plaintiff/Applicant approached the court in HC Commercial E015 of 2021; Ronald Ratemo Moturi & Another Vs. Credit Bank Limited in which he challenged the 1st Defendant’s right to exercise the statutory power of sale.
10. I agree with the 3rd Defendant/Respondent’s submission that this suit purely relates to a commercial dispute and does not concern the use of land within the meaning of Article 162 (2) (b) of the Constitution.The Court of Appeal in Co-operative Bank of Kenya Limited Vs. Patrick Njuguna & 5 Others (2017) eKLR stated thus;While exclusive, the jurisdiction of the Environment and Land Court is limited to the areas specified under Article 162 of the Constitution, Section 13 of the Environment and Land Act and Section 150 of the Land Act; none of which concern the determination of accounting questions. Consequently, this dispute does not fall within any of the areas envisioned by the said provisions. On the other hand, the jurisdiction of the High Court over accounting matters is without doubt, for under Article 165 (3) of the Constitution, provides inter alia, that “1. Subject to clauses (5) the High court shall have:-a.Unlimited original jurisdiction in criminal and civil matters;”For the above reasons, the Appellant’s objection on jurisdiction was rightly dismissed.”
11. I am guided by the above authority in finding that this court has no jurisdiction to deal with the dispute herein.
12. In Owners of the Motor Vessel Lillian “s” Vs. Caltex Oil Kenya Limited (1989) KLR 1 it was held that;“Jurisdiction is everything. Without it, a court has no power to take 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.”
13. I am guided by the above authority in finding that the correct court to handle the issues raised by plaintiff is the High Court. I hereby transfer this matter to the High Court, Kajiado for directions on how it should proceed.The matter is to be placed before the Deputy Registrar, High Court for directions on 4th December 2024. Orders shall issue accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 7TH DAY OF NOVEMBER 2024. L. KOMINGOIJUDGE.In the presence of:Mr. Thuita Kiiru for the Plaintiff/Applicant.Ms. Maitai for the 1st Defendant/Respondent.Ms. Nyawira for the 2nd Defendant/Respondent.Mr. Mutua for the 3rd Defendant/Respondent.Ms. Kerubo for the 4th Defendant/Respondent.Court Assistant – Mutisya.