1. What is pending before this court is the Respondents’ Preliminary Objection dated 18/12/2024. The 1st Respondent raised a Preliminary Objection to the Appeal and Application on the grounds that this court lacks jurisdiction to hear the appellants’ Notice of Motion dated 08/12/2024.
2. The brief facts underlying the Preliminary Objection are that the Appellant instituted the present Appeal being dissatisfied with the Judgement and Decree issued in Eldoret CMCC No. E761 of 2024 on 28/11/2024. The Appellant had sought to prevent the exercise of Statutory Power of Sale over her property known as Eldoret Municipality Block 9/985 which she had used as security to obtain a loan facility for Kshs. 6,900,000/-. The trial court dismissed the suit and consequently the appellant instituted the present appeal.
3. The Notice of Motion dated 08/12/2024 seeks an injunction barring the Respondents or Agents and Assigns from interfering with the premises known as Eldoret Municipality Block 9/985 pending the determination of the Application and the Appeal.
4. The parties prosecuted the application vide written submissions. The Respondent filed submissions dated 27/01/2025 through the firm of Messrs. Akello Karuga & Company Advocates. Additionally, they filed further submissions dated 18/02/2025. The Appellant filed submissions dated 10/02/2025 through the firm of Messrs. Sichangi & Associates Advocates.
Respondents’ Submissions
5. Learned counsel for the Respondent in support of their Preliminary Objection cited the case of Mukisa Biscuit Manufacturers Ltd vs West end Distributors Ltd (1969) EA on the definition of a Preliminary Objection. On jurisdiction, he cited the case of Owners of the Motor Vessel ‘Lillian S’ vs Caltex Oil (Kenya) Ltd (1989) KLR.
6. Counsel submitted that the Appellants’ contention in this court and the trial court is that the 1st Respondent did not issue her with the prerequisite notices in exercising its Statutory Power of Sale over Land Title No. ELDORET MUNICIPALITY BLOCK 9/985. That further, she cited Section 4 of the Environment and Land Act and cited the case of Republic vs. Karisa Chengo & 2 Others (2017) eKLR.
7. In his further submissions, counsel submitted that unlike in Co-operative Bank of Kenya Ltd vs. Patrick Kang’ethe Njuguna & 5 Others [2017] eKLR which has been cited by the Appellant’s Advocates, the suit before the lower court is anchored on section 104 (2) of the Land Act 2012. He submitted that the case is distinguishable from the present case as it was mainly a dispute on accounts which is a commercial question and not the interpretation of the provisions relating to exercise of a chargee’s statutory power of sale as contained in the Land Act. Further, that the court vested with that jurisdiction is the Environment and Land Court Act.
Appellants’ Submissions
8. Learned Counsel for the Appellant submitted that the gist of the 1st Respondent’s Objection is that this court is devoid of jurisdiction to entertain the Appeal as it relates to the exercise of Statutory Power of Sale as contemplated in the Land Act. 2012. He submitted that the question on the jurisdiction of the High Court to entertain such appeals has been settled by the Court of Appeal which had time and chance to pronounce itself in the case of Cooperative Bank of Kenya limited v Patrick Kang’ethe Njuguna, Edward Njuguna, Kang’ethe, George James Kang’ethe, Nguru Auctioneers & Joserick Merchants Auctioneers (2017) KECA 79 (KLR). Guided by the dictum in that case, Counsel submitted that this court is adorned with jurisdiction to entertain the appeal herein. He prayed that the Preliminary Objection suffers the obvious fate of dismissal with costs.
Analysis & Determination
9. The issue of what comprises a Preliminary Objection was decided in the case of Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) EA 696, where the court held that;
“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 the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
10. Article 165(3) of the Constitution provides that;
Subject to clause (5), the High Court shall have-
a. unlimited original jurisdiction in criminal and civil matters.
11. The Supreme Court settled the question of Jurisdiction in the case of Samuel Kamau Macharia vs Kenya Commercial Bank & 2 Others (2012) eKLR wherein the Court stated as follows;
A court’s jurisdiction flows from either the constitution of legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submissions that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings.”
12. The Court of Appeal determined the jurisdiction of the High Court vis-a vis that of the Environment and Land Court with regards to Statutory Power of Sale in the case of Cooperative Bank of Kenya v Patrick Kang’ethe Njuguna & another [2017] eKLR where the Court stated:-
36. “… By definition, a charge is an interest in land securing payment of money or money’s worth or the fulfilment of any condition. (see section 2 of the land Act). It gives rise to a relationship where one person acquires rights over the land of another as security in exchange for money or money’s worth. The rights so acquired are limited to the realization of the security so advanced (see section 80 of the Land Act). The creation of that relationship therefore, has nothing to do with the use of the land (as defined above). [Emphasis mine] Indeed, that relationship is simply limited to ensuring that the charge is assured of the repayment of the money he has advanced.
38. Consequently, the assertion that a charge constitutes use of land within the meaning of Article 162 of the Constitution fails. In addition, the cause of action herein was not the validity of the charge, but a question of accounts.
41. Furthermore, the jurisdiction of the ELC to deal with disputes relating to contracts under Section 13 of the ELC Act ought to be understood within the context of the court’s jurisdiction to deal with disputes connected to ‘use’ of land as discussed herein above. Such contracts, in our view, ought to be incidental to the ‘use’ of land; they do not include mortgages, charges, [Emphasis mine] collection of dues and rents which fall within the civil jurisdiction of the High Court.
13. In the instant case, I have considered the pleadings by both parties. It is common ground is that the dispute arises out of a staff mortgage facility of Ks. 6,900, 000/- advanced to the Appellant by the Respondent for the purchase of Land Title Number ELDORET MUNICIPALITY/ BLOCK/ 9/ 985 when she was an employee of the Respondent. As security for the repayment of the loan, the Applicant agreed to charge the said property to the Respondent. Subsequently, the Appellant defaulted in the repayment of the loan that was to be paid over a period of 18 years and the Respondent moved to exercise its Statutory Power of sale and the Applicant moved to Court seeking injunctive orders which application was dismissed hence this Appeal.
14. In light of the above holding of the Court of Appeal, I am satisfied that the substratum of the Appeal and the Application by the Appellant precludes this matter from falling within the jurisdiction of the Environment and Land Court. I therefore find the Preliminary Objection raised to be misconceived and without merit and the same is accordingly dismissed with costs to the Appellant.
Read Dated and Signed at ELDORET on 4th June 2025
2. The brief facts underlying the Preliminary Objection are that the Appellant instituted the present Appeal being dissatisfied with the Judgement and Decree issued in Eldoret CMCC No. E761 of 2024 on 28/11/2024. The Appellant had sought to prevent the exercise of Statutory Power of Sale over her property known as Eldoret Municipality Block 9/985 which she had used as security to obtain a loan facility for Kshs. 6,900,000/-. The trial court dismissed the suit and consequently the appellant instituted the present appeal.
3. The Notice of Motion dated 08/12/2024 seeks an injunction barring the Respondents or Agents and Assigns from interfering with the premises known as Eldoret Municipality Block 9/985 pending the determination of the Application and the Appeal.
4. The parties prosecuted the application vide written submissions. The Respondent filed submissions dated 27/01/2025 through the firm of Messrs. Akello Karuga & Company Advocates. Additionally, they filed further submissions dated 18/02/2025. The Appellant filed submissions dated 10/02/2025 through the firm of Messrs. Sichangi & Associates Advocates.
Respondents’ Submissions
5. Learned counsel for the Respondent in support of their Preliminary Objection cited the case of Mukisa Biscuit Manufacturers Ltd vs West end Distributors Ltd (1969) EA on the definition of a Preliminary Objection. On jurisdiction, he cited the case of Owners of the Motor Vessel ‘Lillian S’ vs Caltex Oil (Kenya) Ltd (1989) KLR.
6. Counsel submitted that the Appellants’ contention in this court and the trial court is that the 1st Respondent did not issue her with the prerequisite notices in exercising its Statutory Power of Sale over Land Title No. ELDORET MUNICIPALITY BLOCK 9/985. That further, she cited Section 4 of the Environment and Land Act and cited the case of Republic vs. Karisa Chengo & 2 Others (2017) eKLR.
7. In his further submissions, counsel submitted that unlike in Co-operative Bank of Kenya Ltd vs. Patrick Kang’ethe Njuguna & 5 Others [2017] eKLR which has been cited by the Appellant’s Advocates, the suit before the lower court is anchored on section 104 (2) of the Land Act 2012. He submitted that the case is distinguishable from the present case as it was mainly a dispute on accounts which is a commercial question and not the interpretation of the provisions relating to exercise of a chargee’s statutory power of sale as contained in the Land Act. Further, that the court vested with that jurisdiction is the Environment and Land Court Act.
Appellants’ Submissions
8. Learned Counsel for the Appellant submitted that the gist of the 1st Respondent’s Objection is that this court is devoid of jurisdiction to entertain the Appeal as it relates to the exercise of Statutory Power of Sale as contemplated in the Land Act. 2012. He submitted that the question on the jurisdiction of the High Court to entertain such appeals has been settled by the Court of Appeal which had time and chance to pronounce itself in the case of Cooperative Bank of Kenya limited v Patrick Kang’ethe Njuguna, Edward Njuguna, Kang’ethe, George James Kang’ethe, Nguru Auctioneers & Joserick Merchants Auctioneers (2017) KECA 79 (KLR). Guided by the dictum in that case, Counsel submitted that this court is adorned with jurisdiction to entertain the appeal herein. He prayed that the Preliminary Objection suffers the obvious fate of dismissal with costs.
Analysis & Determination
9. The issue of what comprises a Preliminary Objection was decided in the case of Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) EA 696, where the court held that;
“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 the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
10. Article 165(3) of the Constitution provides that;
Subject to clause (5), the High Court shall have-
a. unlimited original jurisdiction in criminal and civil matters.
11. The Supreme Court settled the question of Jurisdiction in the case of Samuel Kamau Macharia vs Kenya Commercial Bank & 2 Others (2012) eKLR wherein the Court stated as follows;
A court’s jurisdiction flows from either the constitution of legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submissions that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings.”
12. The Court of Appeal determined the jurisdiction of the High Court vis-a vis that of the Environment and Land Court with regards to Statutory Power of Sale in the case of Cooperative Bank of Kenya v Patrick Kang’ethe Njuguna & another [2017] eKLR where the Court stated:-
36. “… By definition, a charge is an interest in land securing payment of money or money’s worth or the fulfilment of any condition. (see section 2 of the land Act). It gives rise to a relationship where one person acquires rights over the land of another as security in exchange for money or money’s worth. The rights so acquired are limited to the realization of the security so advanced (see section 80 of the Land Act). The creation of that relationship therefore, has nothing to do with the use of the land (as defined above). [Emphasis mine] Indeed, that relationship is simply limited to ensuring that the charge is assured of the repayment of the money he has advanced.
38. Consequently, the assertion that a charge constitutes use of land within the meaning of Article 162 of the Constitution fails. In addition, the cause of action herein was not the validity of the charge, but a question of accounts.
41. Furthermore, the jurisdiction of the ELC to deal with disputes relating to contracts under Section 13 of the ELC Act ought to be understood within the context of the court’s jurisdiction to deal with disputes connected to ‘use’ of land as discussed herein above. Such contracts, in our view, ought to be incidental to the ‘use’ of land; they do not include mortgages, charges, [Emphasis mine] collection of dues and rents which fall within the civil jurisdiction of the High Court.
13. In the instant case, I have considered the pleadings by both parties. It is common ground is that the dispute arises out of a staff mortgage facility of Ks. 6,900, 000/- advanced to the Appellant by the Respondent for the purchase of Land Title Number ELDORET MUNICIPALITY/ BLOCK/ 9/ 985 when she was an employee of the Respondent. As security for the repayment of the loan, the Applicant agreed to charge the said property to the Respondent. Subsequently, the Appellant defaulted in the repayment of the loan that was to be paid over a period of 18 years and the Respondent moved to exercise its Statutory Power of sale and the Applicant moved to Court seeking injunctive orders which application was dismissed hence this Appeal.
14. In light of the above holding of the Court of Appeal, I am satisfied that the substratum of the Appeal and the Application by the Appellant precludes this matter from falling within the jurisdiction of the Environment and Land Court. I therefore find the Preliminary Objection raised to be misconceived and without merit and the same is accordingly dismissed with costs to the Appellant.
Read Dated and Signed at ELDORET on 4th June 2025