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ELCStruck OutNot stated in the judgment as provided· [2024] KEELC 7245 (KLR)

Mburu v SBM Bank Kenya Limited & another (Environment & Land Case E228 of 2024) [2024] KEELC 7245 (KLR)

Environment and Land Court
5 November 2024
LMLucy N. Mbugua
582 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a suit seeking to stop a property auction because matrimonial property disputes belong in the Family Division, not land court.

What this practically means

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Executive summary

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The plaintiff filed a plaint dated 30 May 2024 claiming that House no. 129 erected on Nairobi/Block 106/155 is matrimonial property, while the 1st defendant holds a first legal charge over the property created in its favour by Joseph Muigai Mburu. The property was scheduled for sale by public auction on 12 June 2024, and the plaintiff sought an injunction restraining the defendants from selling it, supported by a contemporaneous application dated 30 May 2024. The defendants filed a preliminary objection dated 23 July 2024 arguing that the court lacked jurisdiction because the dispute concerned matrimonial property, which falls within the Family Division; they also raised res judicata and abuse of process, citing prior proceedings including Matrimonial Cause E047 of 2021, and filed a replying affidavit sworn by Stephen Kioko, a legal officer of the 1st defendant. When the matter came up for hearing on 28 October 2024 there was no appearance for the plaintiff despite service through her advocates. The court, applying Owners of the Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Limited, treated jurisdiction as a threshold issue. It found that the plaintiff's claim was expressly founded on matrimonial property and that, under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, the Environment and Land Court had no jurisdiction to determine it. Relying also on Salesio Mati Mwirichia v Fredrick Mugambi, the court held that judges should respect judgments of fellow judges. The preliminary objection was upheld, and the application and entire suit were struck out for want of jurisdiction, with costs to the defendants.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction over a claim asserting that suit property is matrimonial property

Holding

The court has no jurisdiction; the claim is rooted in matrimonial property, a matter for the Family Division

Reasoning

The plaintiff's claim in the plaint was founded on the assertion that House no. 129 on Nairobi/Block 106/155 is matrimonial property. The defendants raised a preliminary objection that jurisdiction over matrimonial property lies with the Family Division. The documents showed the dispute had been heard and determined in Matrimonial Cause E047 of 2021. Applying Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, the court held it lacked jurisdiction and struck out the suit.

p. 2
02

Whether the preliminary objection on res judicata and abuse of process was determined

Holding

The preliminary objection was allowed on the jurisdictional ground; the res judicata/abuse grounds were noted but the suit was struck out for want of jurisdiction

Reasoning

The defendants' preliminary objection raised three grounds: lack of jurisdiction, abuse of process arising from a litany of suits, and res judicata. The court framed the question of jurisdiction as the threshold issue, citing Owners of the Motor Vessel 'Lilian S' v Caltex Oil, and resolved the matter on that basis alone. The objection was found merited and the suit and application were struck out with costs to the defendants.

p. 2

Legal principles established

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  • Jurisdiction is a threshold issue that must be determined at the earliest opportunity on the material before the court
  • Disputes concerning matrimonial property fall outside the jurisdiction of the Environment and Land Court
  • Judges should respect judgments delivered by their fellow judges

Court orders

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  1. 1.The Preliminary Objection dated 23.7.2024 is upheld as merited
  2. 2.The application dated 30.5.2024 and the entire suit are struck out for want of jurisdiction
  3. 3.Costs to the defendants/respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13

Cases cited (2)

  • Owners of the Motor Vessel "Lilian S" vs. Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Salesio Mati Mwirichia vs Fredrick Mugambi and Another
    [2017] EKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (court held it lacked jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mburu v SBM Bank Kenya Limited & another (Environment & Land Case E228 of 2024) [2024] KEELC 7245 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7245/eng@2024-11-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.