Basmer (Asthe Administrator of the Estate of Ali Said Basmer (Deceased)) v I & M Bank Limited & another (Environment & Land Case E018 of 2024) [2024] KEELC 13695 (KLR) (11 December 2024) (Ruling)
Neutral citation:
[2024] KEELC 13695 (KLR)
Republic of Kenya
Environment & Land Case E018 of 2024
NA Matheka, J
December 11, 2024
Between
Barka Said Basmer
Plaintiff
Asthe Administrator of the Estate of Ali Said Basmer (Deceased)
and
I & M Bank Limited
1st Defendant
Ranjitsingji Mangalsinhji Vaghela
2nd Defendant
Ruling
1.The 1st Defendant herein I & M Bank Limited, raised a preliminary objection in respect of the suit herein on the grounds that;1.Pursuant to Article 132 of the Constitution of Kenya, 2010, Section 13 of the Environment & Land Court Act and Section 150 of the Land Act, this Honourable Court lacks the requisite jurisdiction to hear and determine the suit herein.2.For the reasons set out in paragraph 1 above, the suit herein is incompetent and fatally defective.
2.The 1st defendant prays that the suit herein be struck out with costs.
3.The submissions by counsel for the 1st defendant gave the court more details on the substratum of the suit. The 1st defendant states that this dispute arises from an instrument of a charge dated 22nd November 2019 from the late Ali Said Basmer and the 2nd defendant t/a Coast Battery Distributors to the 1st defendant. The Deceased’s wife has instituted the suit on behalf of the estate of the deceased and has made allegations of impropriety against the 1st defendant in procuring the charge from the deceased.
4.The plaintiff submits that the defendants wrongfully dealt with the suit property and if not restrained would result in the plaintiff completely loosing the use and occupation of the suit property. That the charge was unlawfully acquired and that this is not merely an accounting issue as was the case in the court of Appeal case of Cooperative Bank of Kenya Limited vs Patrick Kangethe Njuguna & 5 Others (2017) eKLR relied on by the 1st defendant. That even if it was a case of concurrent jurisdiction the greater jurisdiction lies with this court.
5.I have considered the notice of preliminary objection and the submissions thereto. The only issue for determination is whether the defendant’s preliminary objection has satisfied the threshold or not. The leading decision on Preliminary Objections is the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd. (1969) EA 696, where the Court held as follows:
6.Similarly, the Supreme Court in Independent Electoral & Boundaries Commission vs Jane Cheperenger & 2 Others (2015) eKLR made the following observation as relates to Preliminary Objections:
7.The point of law the 1st defendant argues is that this court does not have jurisdiction and they cited the case of Samuel Kamau Wachira vs KCB & 2Others, Civil Application No. 2 of 2012 (eKLR) where the court held that jurisdiction flows from the constitution or legislation or both. They quoted article 162 (2) (b) of the Constitution and Section 13 of the Environment and Land Act. They emphasize that the dispute arising is on the nature of the sale or the terms of the afore mentioned formal charge and placed reliance on the court of Appeal case of Cooperative Bank of Kenya Limited vs Patrick Kangethe Njuguna & 5 Others (2017) eKLR where the court held that the rights acquired by a lender in a charge had nothing to do with the use of the land.
8.In the case of Owners of the Motor Vessel M.V Lillian S. vs Caltex Oil (K) Limited (1989) KLR 1 the court held that without jurisdiction it has to down its tools. The issue of whether the ELC court has jurisdiction on charges or not is not a novel issue. Article 162 (2) & (3) of the Constitution requires inter alia, that;
9.Article 260 of the Constitution, states that unless the context requires otherwise, ‘land’ includes-a)The surface of the earth and the subsurface rock;b)Any body of water on or under the surface;c)Marine waters in the territorial sea and exclusive economic zone;d)Natural resources completely contained on or under the surface; ande)The air space above the surface.”
10.This definition espouses the doctrine of Cujus est solum, eius est usque ad coelum et ad inferos (cujus doctrine) which translates to "whoever owns [the] soil, [it] is theirs all the way [up] to Heaven and [down] to Hell". A charge is an interest in land securing the payment of money or money’s worth or the fulfillment of any condition as defined by section 2 of the Land Act Cap 280 and the rights so acquired are limited to the realization of the security so advanced as per section 80 of the same statute. Section 150 Land Act provides: -
11.The Land Registration Act under section 101 provides for the court that has jurisdiction as follows: -
12.However, in Lydia Nyambura Mbugua vs Diamond Trust Bank Kenya Ltd & Another (2018) eKLR Munyao, J commenting on the application of the above highlighted jurisdiction provisions in the Land Act and the Land Registration Act stated thus;22.It will thus be seen from the above that it is the ELC and the empowered subordinate courts, which have jurisdiction to hear disputes relating to matters in the Land Act and Land Registration Act. This jurisdiction will inevitably cover all instruments created within these statutes, which must also encompass charges, and generally all proprietary transactions. 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 (see the case of Stephen Kibowen -vs- Agricultural Finance Corporation (2015) eKLR). Both sales involve title and the process of acquisition of title to land. If one argues that the ELC has no jurisdiction to hear a dispute over the process of sale by a chargee, then it can as well be argued that the ELC has no jurisdiction to hear a dispute over a sale of land by one individual to another, which argument, I believe, will sound absurd. Let me reiterate again, that the process of sale of a charged property is governed by the Land Act and Land Registration Act, and these statutes provide that it is the ELC and the empowered subordinate courts which have jurisdiction.”
13.The constitution under Article 165 (5) ousts the High Court’s jurisdiction in matters where the ELC had jurisdiction as follows: -
14.I find from the discussion above, that this court has jurisdiction to entertain the matter as it concerns occupation, use and title to land which I find is the dominant issue in the instant case. In this regard, I dismiss the notice of preliminary objection and with costs.It is so ordered.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 11TH DAY OF DECEMBER 2024.N.A. MATHEKAJUDGE