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ELCOtherELC Case of 2017 (Application dated 29th June 2017)· [2018] KEELC 2230 (KLR)

John Kiprop Chemetioi v Kenya Commercial Bank Limited & another [2018] KEELC 2230 (KLR)

Environment and Land Court
2 July 2018
MOM. A. Odeny
2,531 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court cannot hear disputes over charged land or bank accounts—such cases must go to the High Court.

What this practically means

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Executive summary

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The plaintiff, by Notice of Motion dated 29th June 2017, sought interlocutory injunctions restraining the defendants from selling, transferring or interfering with title UASIN GISHU/KIMUMU SCHEME/1759, charged to the 1st defendant to secure a Kshs 4,000,000 loan taken in 2014. The plaintiff alleged unlawful variation of interest rates, unaccounted rent collections, breach of the letters of offer, non-compliance with statutory notices under sections 90, 96 and 98 of the Land Act 2012, and absence of valid spousal consent, arguing the property was a matrimonial home. Counsel relied on Giella v Cassman Brown. The 1st defendant opposed, contending the plaintiff breached the contract, statutory notices were issued and acknowledged in the plaintiff's own communications, interest rates remained unchanged, and no irreparable harm would result, relying inter alia on Julius Mainye Anyega v Eco Bank and Maithya v Housing Finance. In analysing the matter, the court observed that the dispute involved a charge and the taking of accounts. Applying the Court of Appeal decision in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna, which held that the Environment and Land Court has no jurisdiction over matters concerning charges and taking of accounts, the court declined to determine the merits, though it indicated it would have found no prima facie case. It discharged the interim injunction and transferred the matter to the Eldoret High Court for further orders. No express costs order was made.

Key legal issues

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01

Jurisdiction of the ELC over charge disputes and taking of accounts

Holding

The court lacked jurisdiction and referred the matter to the High Court, applying Co-operative Bank v Kangethe Njuguna

Reasoning

The court observed that the dispute involves a charge created over the suit parcel and the taking of accounts. Relying on the Mombasa Court of Appeal decision in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna, it held that the ELC has no jurisdiction over such matters, and having no jurisdiction it 'downed its tools' and referred the matter to the High Court.

p. 3
02

Whether the plaintiff established a prima facie case for injunction

Holding

Had the court gone on to decide, it would have found no prima facie case

Reasoning

The court indicated obiter that statutory notices were properly issued and were admitted by the applicant in his communications with the respondent. It also noted that matrimonial character or sentimental value does not prevent auction where statutory procedures are followed, and that a chargor is aware of the consequences of default when charging property.

p. 3

Legal principles established

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  • The Environment and Land Court lacks jurisdiction to deal with matters in respect of charges and taking of accounts
  • The fact that a charged property is matrimonial in nature or has sentimental value does not bar its auction if statutory procedures are followed

Court orders

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  1. 1.Discharge of the temporary order for injunction earlier issued
  2. 2.Transfer of the matter to the Eldoret High Court for hearing and determination/further orders

Authorities

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Legislation

  • Land Actsection 90(1)(2)(a) and (b)
  • Land Actsection 96(2)
  • Land Actsection 98(1)(d)
  • Civil Procedure Act

Cases cited (11)

  • Giella v Cassman Brown & Co Ltd
    (1973) EA 358
  • Francis Githinii Karobia v Stephen Kageni Gitaul
    Civil Case 53 of 2005 (unreported)
  • Julius Mainye Anyega vs. Eco Bank Limited
    [2014] eKLR
  • Maltex Commercial Supplies Limited & Another vs. Euro Bank Limited (In Liquidation)
    HCCC Number 82 of 2006
  • Maithya vs. Housing Finance Co. of Kenya & Another
    [2003] 1 EA 133
  • Hoffman La Roche & Co. Industry vs. Secretary of State for Trade and Industry
    [1975] AC 295
  • Simon Kipngetich Bett vs. Richard C. Kandie
    [2012]
  • Films Rover International
    [1986] EALL ER
  • Suleiman vs. Amboseli Resort Ltd
    (2004) eKLR 589
  • Joseph Oduor Anode vs. Kenya Red Cross Society
    Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR
  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others
    Civil Appeal no 83 of 2016; [2017] eKLR
Jurisdiction invoked
Jurisdiction of the Environment and Land Court considered in light of Court of Appeal holding in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna that the ELC lacks jurisdiction over disputes concerning charges and taking of accounts

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, "John Kiprop Chemetioi v Kenya Commercial Bank Limited & another [2018] KEELC 2230 (KLR)", Case Analysis (2018). ELC Case of 2017 (Application dated 29th June 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2230/eng@2018-07-02

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