Cherono (Suing as the legal representative of the Estate of Cherono Cherop Chepngal (Deceased)) v National Bank of Kenya Limited & another (Environment & Land Case E005 of 2022) [2022] KEELC 13669 (KLR) (7 October 2022) (Ruling)
Neutral citation:
[2022] KEELC 13669 (KLR)
Republic of Kenya
Environment & Land Case E005 of 2022
L Waithaka, J
October 7, 2022
Between
Paul Cheruiyot Cherono
Plaintiff
Suing as the legal representative of the Estate of Cherono Cherop Chepngal (Deceased)
and
National Bank of Kenya Limited
1st Defendant
Jane Jelagat
2nd Defendant
Ruling
1.This suit was commenced by way of plaint dated June 13, 2022. In the plaint, the plaintiff averred that he was served by an auctioneer with a 45 days’ notice that his father’s Land LR No 329 Moiben Chebara had been placed under public auction. He denies that his father (now deceased), ever took a loan from the 1st defendant or gave out his title to any person to secure a loan. It is the plaintiff’s case that the notices as issued by the defendant vide its agent Keysian Auctioneers are invalid for non-compliance with the provisions of Section 97 of the Land Act, 2012 and the Land Administration Act, 2012.
2.The plaintiff in his plaint seeks a permanent injunction restraining the defendants, its servants, agents and/or employees against engaging in further acts detrimental to the plaintiff’s possession, use, trade and enjoyment of the suit land known as LR No 329 Moiben Chebara.
3.Simultaneously with the plaint, the plaintiff filed a notice of motion seeking an order of temporary injunction against the 1st defendant, its agents, servants and/ or employees from auctioning, selling, and disposing off and/or any other way dealing and/or disposing Land known as LR No 329 Moiben Chebara either by themselves or through any of their agents.
4.In opposing the notice of motion, the 1st defendant raised a preliminary objection and filed a replying affidavit sworn by Edwin Lubanga on July 15, 2022.
5.Directions were taken on July 19, 2022 that the preliminary objection would be disposed of by way of written submissions.
6.In the notice of preliminary objection dated June 29, 2022, the 1st defendant has averred that this court (Environment and land court) lacks jurisdiction to determine the dispute between the parties as the substratum of the suit relates to a Legal charge and the subsequent exercise of a statutory power of sale that is unrelated to any Land use and /or utilization.
1st Defendant’s submissions.
7.It is submitted that jurisdiction is everything as discussed in the Locus Classicus Case of ownership of the Motor Vessel M V Lillian S v Caltex Oil (K) Limited [1989] KLR1
8.The 1st defendant’s advocate submitted that this court’s jurisdiction is set out in Section 13 of the Environment and Land Court Act and that on the face of it, the Act as read together with Article 162(2)(b) of the Constitution does not confer jurisdiction to this court to deal with matters relating to Legal charges.
9.Reference is made to the case of Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [2017) eKLR and submitted that the finding by the court of Appeal in the aforesaid case is binding on this court as cited with approval by Angote J in the case of Thomas Mutuku Kasua v Housing Finance Company Ltd (HFC) & another [2021] eKLR
10.It is further submitted that the Cause of action in the case at hand arose from statutory notice issued by an auctioneer relating to the intended sale of the suit parcel in exercise of the 1st defendant’s statutory power of sale; that it is these notices that are been challenged by the plaintiff as illegal, oppressive and invalid for non-compliance with the provision of Section 97 of the Land Act.
11.He submits that a question then arises; what is the fate of a matter that is filed in a court that has no jurisdiction. Can that court transfer the matter to a court that has jurisdiction?
12.On that question, it is submitted that because the suit was filed without jurisdiction, the same ought to be struck out in the first instance as the court will not have the power to move a single step and consider any discretion to maintain or transfer the suit to any other court including the subordinate courts. Reference is made to the case of Joel Kipkosgei v Thomas Kiprop [2018] eKLR where the court relied on the case of Rob De Jong & Another v Charles Mureithi Wachira [2012] eKLR
13.Finally, the 1st defendant submits that based on the authorities cited, the filing of this suit was null and void ab initio and there is nothing to found any competent proceedings that this court can exercise its judicial powers.
14.The plaintiff filed submissions dated September 19, 2022 but he failed to pay the requisite fees. The submissions are found not to be properly on record and are expunged.
Analysis and Determination
15.Jurisdiction is everything and without it a court cannot take a single step and should down its tools as held in the case of ownership of the Motor Vessel M.V Lillian S.v Caltex Oil (K) Limited [1989] KLR1 where the Court of Appeal held:
16.This was similarly held in the Case of Republic v Karisa Chengo & 2 others [2017]eKLR where the Supreme Court pronounced itself as follows:-
17.This court’s jurisdiction is set out in Article 162(2)(b) of the Constitution of Kenya and Section 13 of the ELC Act. Article 162(2)(b) of the Constitution of Kenya provides;‘Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to the…….(b)environment and the use and occupation of, and title to, land.’Section 13 of the ELC Act provides:“(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.(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 interests in land; and(e)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 healthy environment under Articles 42, 69 and 70 of the Constitution.”
18.In the case of Thomas Mutuku Kasua v Housing Finance Company Ltd (HFC) Supra, Angote J faced with a similar matter, cited with approval supreme court and the court of appeal decisions on the jurisdiction of this court vis a vis the jurisdiction of the High court in respect of matters falling within the jurisdiction of the courts contemplated under Article 162 (2) of the Constitution. He held;
19.The Plaintiff has not denied that as security for a loan facility, he executed a Charge dated February 26, 1998 and later a Further Charge dated April 22, 1999 over Land Reference Number 337/2057 (Original Number 337/2019/38). The Plaintiff has confirmed in the Plaint that the 1st Defendant is seeking to exercise its statutory power of sale of the charged property. On his part, the Plaintiff has contended that he did not receive the requisite statutory notices.
20The substratum of the suit therefore relates to the legal charges and the subsequent statutory power of sale. The court that has jurisdiction to deal with a dispute in which the predominant issue is the exercise of the statutory power of sale by the chargee has since been settle by the Court of Appeal in the case of Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [2017] eKLR where the court held as follows:“35. Accordingly, for land use to occur, the land had to be utilized for the purpose for which the surface of the land, air above it or ground below it was adapted. Therefore, to the law, land use entailed the application or employment of the surface of the land and/or the air above it and/or ground below it according to the purpose for which that land was adapted. Neither the cujus doctrine nor Article 260 of the Constitution whether expressly or by implication recognized charging land as connoting land use.
21.By definition, a charge was an interest in land securing the payment of money or money’s worth or the fulfillment of any condition. As such, it gave rise to a relationship where one person acquired rights over the land of another as security in exchange for money or money’s worth. The rights so acquired were limited to the realization of the security so advanced. Therefore, the creation of that relationship had nothing to do with use of the land as defined. That relationship was simply limited to ensuring that the chargee was assured of the repayment of the money he had advanced the chargor.
22.Further, Section 2 of the Land Act recognized a charge as a disposition in land. A disposition was distinguishable from land use. While the former created the relationship, the latter was the utilization of the natural resources found on, above or below the land. Land use connoted the alteration of the environmental conditions prevailing on the land and had nothing to do with dispositions of land. Saying that creation of an interest or disposition amounted to use of the land, was akin to saying that writing a will bequeathing land or the act of signing a tenancy agreement constituted land use. The mere acquisition or conferment of an interest in land did not amount to use of that land. If that were the case, there would neither be absentee landlords nor would principles like adverse possession ever arise. If a disposition were held to constitute land use, an absentee landlord with a subsisting legal charge over his land would never have to contend with the consequences of adverse possession, for he would always be said to be ‘using’ his land simply by virtue of having a floating charge/disposition over the property.
23.Consequently, the assertion that a charge constituted use of land within the meaning of Article 162 of the Constitution had to fail. In addition, the cause of action before the Court was not the validity of the charge, but a question of accounts…
24.To the Appellant, the charge was an instrument granting an interest in the land, hence jurisdiction in the matter lay with the Environment and Land Court. However, under Section 2 of the Environment and Land Court Act, an instrument was a writing or enactment which created or affected legal or equitable rights and liabilities. For the purposes of the instant suit, that instrument was the charge. The cause of action was never the charge (instrument) but the amounts due and owing thereunder. Neither the charge instrument nor the creation of an enforceable interest thereunder, were disputed. The main questions to be determined were the tabulation of the sums owing and whether statutory notices had issued prior to the attempted statutory sale.
25.Furthermore, the jurisdiction of the Environment and Land Court to deal with disputes relating to contracts under Section 13 of the Environment and Land Court Act ought to be understood within the context of the Court’s jurisdiction to deal with disputes connected to ‘use’ of land. Such contracts, ought to be incidental to the ‘use’ of land; they did not include mortgages, charges, collection of dues and rents which fell within the civil jurisdiction of the High Court. By parity of reasoning, the dominant issue in the instant case was the settlement of amounts owing from the Respondents to the Appellant on account of a contractual relationship of a banker and lender.
26.While exclusive, the jurisdiction of the Environment and Land Court was limited to the areas specified under Article 162 of the Constitution, Section 13 of the Environment and Land Court Act and Section 150 of the Land Act; none of which concerned the determination of accounting questions. Consequently, the dispute did not fall within any of the areas envisioned by those provisions. On the other hand, the jurisdiction of the High Court over accounting matters was without doubt, as evidenced by article 165(3) of the Constitution. The Appellant’s objection on jurisdiction was rightly dismissed.”
27.The Court of Appeal, whose decision is binding on this court, has held that where the predominant issue in a suit involves mortgages, charges, collection of dues and rents, it is the High Court, and not the Environment and Land Court, that has jurisdiction to deal with the dispute. That being so, and the predominant issue in this matter being the issuance of the statutory notices by the chargee, it is my finding that this court does not have jurisdiction to hear and determine this suit.’’
28.On the question of the fate of a suit filed without jurisdiction, Angote J in the aforesaid case held;
29.From the holding in the aforesaid case which has cited with approval decisions from the supreme court and the court of appeal, it is clear that this court has no jurisdiction to entertain disputes relating to a legal charge and the subsequent exercise of a statutory power of sale. This suit having been filed in a court found not to the requisite jurisdiction, cannot transfer the matter to the High Court.
30.Consequently, this suit is struck out with costs to the defendants.
22.Orders Accordingly
DATED, SIGNED AND DELIVERED, AT ITEN THIS 7TH DAY OF OCTOBER 2022.L N WAITHAKAJUDGERuling read virtually in the presence of:Mr Oburu for the PlaintiffMr Kibet for the 1st DefendantMr Muiruri holding brief for Mr Mwinamu for the 2nd DefendantChristine Towett: Court Assistant