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ELCOtherEldoret E & L Case No. 65 of 2016· [2018] KEELC 1046 (KLR)

Tachasis Wholesalers Co. Limited v National Bank of Kenya Ltd [2018] KEELC 1046 (KLR)

Environment and Land Court
24 October 2018
1,113 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that disputes over a bank charge and loan accounts belong in the High Court, not the Environment and Land Court.

What this practically means

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Executive summary

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The applicant, Tachasis Wholesalers, moved the court by notice of motion dated 8 February 2017 seeking consolidation of Eldoret E & L Case No. 65 of 2016 and Eldoret CMCC No. 904 of 2012, both filed by the plaintiff/respondent against it, into one action with this case designated a test suit. The applicant contended that the two suits involved the same parties, the same cause of action concerning a loan, and identical prayers for release of loan application and approval letters, letters of offer and acceptance and statements of account, and that consolidation would avoid duplication and multiplicity of suits. The respondent opposed the application as frivolous and res judicata. The court framed the dispute as revolving on a loan and the taking of accounts relating to charge over property offered as collateral. Relying on Owners of the Motor Vessel M.V Lillian S v Caltex Oil and the Court of Appeal's decision in Co-operative Bank of Kenya Ltd v Patrick Kangethe & Others, the court held that a charge creates an interest in land as security and does not constitute use of land under Article 162 of the Constitution. Since the dispute concerned accounts and realization of security after default, jurisdiction lay with the High Court, not the Environment and Land Court. Rather than consolidating the suits, the court transferred the matter to the High Court. No costs order was made.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction over a dispute on a charge and taking of accounts

Holding

It does not; jurisdiction lies with the High Court because the dispute concerns the realization of security after default and the taking of accounts, not use of land

Reasoning

Relying on the Court of Appeal decision in Co-operative Bank of Kenya Ltd v Patrick Kangethe & Others, the court adopted the reasoning that a charge creates rights over land as security for money and is a disposition, not a use of land under Article 162. As the cause of action here was accounts and realization of security after default, the E & L Court lacked jurisdiction and was bound by the Court of Appeal's decision.

p. 2
02

Whether the two suits should be consolidated and heard as one action

Holding

Not granted; the court instead transferred the matter to the High Court on jurisdictional grounds

Reasoning

The applicant sought consolidation of the two suits, which involved the same parties, the same loan and the same prayers, to avoid duplication and multiplicity of suits. However, the court first determined jurisdiction, holding that the dispute revolves on a charge and the taking of accounts, and therefore transferred the matter to the High Court rather than ordering consolidation.

p. 1

Legal principles established

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  • Jurisdiction is everything; without it a court must down its tools
  • A charge is an interest in land securing payment of money; its creation does not amount to use of land within Article 162 of the Constitution, so charge disputes (including realization of security and accounts) fall to the High Court, not the Environment and Land Court

Court orders

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  1. 1.The matter is transferred to the High Court
  2. 2.Orders accordingly

Authorities

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Legislation

  • Land ActSection 2
  • Land ActSection 80
  • Constitution of KenyaArticle 162

Cases cited (2)

  • Owners of the Motor Vessel M.V Lillian S. v. Caltex Oil (K) Limited
    [1989] KLR 1
  • Co-operative Bank of Kenya Ltd Vs Patrick Kangethe & Others
    Court of Appeal No. 83 of 2016
Jurisdiction invoked
Article 162 of the Constitution (jurisdiction of the Environment and Land Court); question whether a charge dispute falls within the Court's 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, "Tachasis Wholesalers Co. Limited v National Bank of Kenya Ltd [2018] KEELC 1046 (KLR)", Case Analysis (2018). Eldoret E & L Case No. 65 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1046/eng@2018-10-24

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