The Achilles Heel of Litigation: How Jurisdictional Missteps Lead to Case Dismissals.

Author: Glen Komba.

Jurisdictional errors can be the downfall of even the strongest legal cases. A significant number of cases and arguments are dismissed from the courts because of jurisdictional issues, whether initial pleadings or defences that raise issues.

Jurisdiction of the court refers to the authority of the court, by law, to determine particular issues. The jurisdiction of a court is outlined in the constituting statute or the constitution. Different courts have different jurisdictions despite similarities in matters before them. For instance, a case involving land may be determined at the environment and land court, Anti-corruption court, Criminal court, small claims court as well as the Commercial court depending on the peculiar circumstances therein.

Notable arguments in plaints and defences have been struck out citing jurisdictional issues. In Equity Bank Limited v Hwanlee International Kitchen  Interior Design Limited  2 others (Civil Case E021of2022) 2025KEHC17139(KLR) (Commercial and Tax) (14 February 2025) (Ruling) Justice F Mugambi dismissed a notice of preliminary objection filed by the plaintiff in the case challenging the jurisdiction of the court. The issue for determination was whether the court should entertain a counterclaim filed by the defendants.

The defendants in the case, Hwanlee International Kitchen Interior Design Limited, Violet Ngugi and Mark Ngugi were sued by Equity Bank seeking to recover Kshs. 13,126,920.30 along with interest and costs. The claim was for a balance due after the Bank exercised its statutory power of sale on a parcel of land belonging to the defendants by way of auction over debt arrears related to a loan facility extended to the defendants.

The defendants in their statement of defence raised a counterclaim arguing that the sale of the suit property was irregular because no statutory notices had been issued and that the suit property was undervalued and sold at below market price. They also raised concerns about inaccuracies and unaccounted-for funds from the statement of accounts issued by the Bank.

Consequently, the defendants prayed for a declaration that the sale by auction of the suit property was unlawful and that the suit property was sold below market value. They further sought compensation of the difference between the forced sale value and the market value of the property, a refund of Kshs. 732,927.12 being an overpayment on the loan, costs and interest.

Before the matter was fixed for hearing the plaintiff filed a notice of preliminary objection asserting that the court lacks jurisdiction to hear and determine the counterclaim by dint of Article 162(2) of the Constitution and section 13 of the Environment and Land [sic] Act. The plaintiff argued that the issues raised in the counterclaim pertaining to the value and sale of the suit property fall within the exclusive jurisdiction of the Environment and Land Court and prayed that the same be struck out.

The court found that the dominant issue in the case was the settlement of accounts arising from a contractual relationship between a banker and lender and the exercise of a statutory right (power of sale) emanating from that contractual relationship. As such, the counter-claim raised does not fall under any of the areas contemplated under Article 162 of the Constitution or Section 13 of the ELC Act as alleged by the Bank.

The court grounded its ruling from the judgement of the Court of Appeal in Co-operative Bank of Kenya Limited V Patrick Kangethe Njuguna & 5 Others, [2017] eKLR  where  the court of appeal differentiated disputes emanating from ‘use of land’ which fall under the jurisdiction of the ELC from those arising from contractual relationships established through documents creating securities such as charges, like in the present matter, which are commercial disputes.

The Learned Judges stated: “The creation of that [chargor/chargee] relationship therefore, has nothing to do with use of the land (as defined above). Indeed, that relationship is simply limited to ensuring that the chargee is assured of the repayment of the money he has advanced the chargor” ... 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.”

Conclusively, litigants ought to ground their arguments within the purview of the jurisdictional parameters of the courts, as by law provided, and additionally, thoroughly assess the law when alleging jurisdictional overreach. This may avoid some practical consequences of jurisdictional errors, save time used in interlocutory appeals and applications and consequently avoid delays in cases and fast-track access to justice.