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ELCDismissedELC Case (Nakuru), suit filed 9 April 2018· [2014] KEELC 1 (KLR)

Nancy Jeruto Bomett (As Administrator Ad Litem of the Estate of Eric Kibet Bomett (Deceased) v Post Bank Credit Limited (In liquidation) [2014] KEELC 1 (KLR)

Environment and Land Court
14 November 2018
1,986 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop a land sale because the borrower's estate could not show the actual charge document named a different bank.

What this practically means

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Executive summary

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The plaintiff, administratrix of the estate of the late Eric Kibet Bomett, sued Post Bank Credit Limited (in liquidation) and sought an injunction to restrain the sale of LR No. 10303/3 (IR No. 17550), arguing that the deceased had guaranteed a loan from Post Bank Limited, not Post Bank Credit Limited, and that the register showed the charge in favour of Post Bank Limited. She also pleaded the claim was statute barred. The respondent, through its Liquidation Agent, opposed, contending the applicant lacked letters of administration authority and statutory leave, and that a clerical error by the Land Registrar had recorded the wrong chargee; it produced the charge instrument dated 15 October 1992 naming Post Bank Credit Limited, plus correspondence showing the deceased acknowledged indebtedness. On jurisdiction, the court distinguished Patrick Kangethe v Cooperative Bank and held the Environment and Land Court has jurisdiction over disputes touching charges and statutory sales under the Land Act and Land Registration Act. On the merits, applying Giella v Cassman Brown, the court found no prima facie case: the plaintiff produced no charge instrument supporting her assertion, while the only instrument availed showed Post Bank Credit Limited as chargee, and the deceased's correspondence corroborated the registrar's-error explanation. The application was dismissed with costs and the ex-parte interim injunction orders were vacated.

Key legal issues

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01

Jurisdiction of the ELC over matters touching a charge

Holding

The court held that Patrick Kangethe did not oust ELC jurisdiction over charge disputes; the ELC is the correct forum for questions over the charge instrument or the process of statutory sale

Reasoning

The court distinguished Patrick Kangethe v Cooperative Bank, noting that case concerned accounts due under a charge, not the validity of the charge itself. A charge is a disposition recognised under the Land Act, 2012 and Land Registration Act, 2012, both of which confer jurisdiction on the Environment and Land Court. Since the plaintiff's claim attacked the charge instrument itself, the ELC had jurisdiction.

p. 2
02

Whether the plaintiff established a prima facie case that the charge was held by Post Bank Limited and not Post Bank Credit Limited

Holding

No prima facie case was established; the only charge instrument before the court showed Post Bank Credit Limited as chargee, and correspondence showed the deceased acknowledged indebtedness to that bank, supporting the explanation of a registrar's error in the register

Reasoning

The plaintiff produced no charge instrument supporting her claim that the chargee was Post Bank Limited; only the title search showed that name. The sole charge instrument availed, dated 15 October 1992, named Post Bank Credit Limited as chargee. Correspondence between the deceased and Post Bank Credit Limited acknowledging the debt and offering to sell part of the land made it more plausible that the register entry was a simple recording error by the Land Registrar.

p. 2

Legal principles established

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  • The Environment and Land Court has jurisdiction over disputes relating to charges and the process of sale by a chargee, as provided under the Land Registration Act and the Land Act
  • Principles for grant of an injunction: prima facie case with probability of success, irreparable loss, and balance of convenience

Court orders

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  1. 1.The plaintiff's application for injunction is dismissed with costs
  2. 2.The interim orders of injunction granted at the ex-parte stage are vacated

Authorities

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Legislation

  • Kenya Deposit Insurance Act, Cap 487CSection 56(2)
  • Companies Act (repealed)Section 228
  • Land Act
  • Land Registration Act

Cases cited (3)

  • Patrick Kangethe vs Cooperative Bank Limited
    (2018) eKLR
  • Giella vs Cassman Brown
    (1973) EA 358
  • Lydia Nyambura Mbugua vs Diamond Trust & Another, Nakuru ELC Case No. 296 of 2013
    (2018) eKLR
Jurisdiction invoked
Land Registration Act, 2012 and Land Act, 2012 conferring jurisdiction on the Environment and Land Court over disputes relating to charges

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, "Nancy Jeruto Bomett (As Administrator Ad Litem of the Estate of Eric Kibet Bomett (Deceased) v Post Bank Credit Limited (In liquidation) [2014] KEELC 1 (KLR)", Case Analysis (2018). ELC Case (Nakuru), suit filed 9 April 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/1/eng@2014-11-14

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