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)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over matters touching a charge
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
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.
Whether the plaintiff established a prima facie case that the charge was held by Post Bank Limited and not Post Bank Credit Limited
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
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.
Legal principles established
#- 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
#- 1.The plaintiff's application for injunction is dismissed with costs
- 2.The interim orders of injunction granted at the ex-parte stage are vacated
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.