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ELCOtherELC Case No. 49 of 2019· [2019] KEELC 939 (KLR)

Sally Cheptoo Bwambok & another v Kenya Commercial Bank Ltd & another [2019] KEELC 939 (KLR)

Environment and Land Court
7 November 2019
MNMwangi Njoroge
536 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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The Kitale Environment and Land Court sent a landowner-bank charge dispute to the High Court's Presiding Judge, briefly extending orders protecting the property.

What this practically means

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Executive summary

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This is a short directions ruling by Mwangi Njoroge J in the Environment and Land Court at Kitale in ELC Case No. 49 of 2019. The plaintiffs, administrators of the estate of Henry Kipkogei Bomet (who died intestate on 20/4/2017), moved the court by application dated 28/6/2019 under Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules and Sections 1A, 1B, 3, 3A & 63 of the Civil Procedure Act seeking a temporary injunction to restrain Kenya Commercial Bank Ltd from advertising, auctioning or otherwise dealing with the suit property, Kaplamai/Sirende Block 2/Ngonyek/550. They alleged that the 2nd defendant fraudulently and corruptly caused the property to be charged to the bank after the deceased's death, and that they only became aware of the charge when served with a statutory notice under Section 90 of the Land Act, which they said had lapsed. Examining the plaint, the court noted that the plaintiffs ultimately seek a declaration that the charge is tainted with illegality and an order compelling the bank to discharge the title. Applying the Court of Appeal's holding in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, the court directed that the matter be placed before the Presiding Judge of the High Court, Kitale, as the court possessed of jurisdiction, for hearing and final disposal, and extended the interim orders earlier granted for seven days. No final determination of the injunction was made and no costs order issued.

Key legal issues

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01

Jurisdiction over a dispute challenging the legality of a charge and seeking discharge of title

Holding

The court directed that the matter be placed before the Presiding Judge as the forum possessed of jurisdiction for hearing and final disposal, following the Court of Appeal's holding in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna.

Reasoning

The plaintiffs seek a declaration that the charge registered against the suit property is tainted with illegality and an order compelling the 1st defendant to discharge the title. Invoking the Court of Appeal's holding in the Co-operative Bank case, the judge considered that the appropriate forum is the court possessed of jurisdiction in such matters, and directed placement before the Presiding Judge for hearing and final disposal rather than determining the injunction application on its merits.

p. 1
02

Interim protection of the suit property pending reallocation

Holding

The interim orders earlier granted were extended for seven days.

Reasoning

Having directed transfer of the matter to the Presiding Judge, the court preserved the position by extending the interim orders earlier granted for seven days, protecting the suit property from any dealing in the interim.

p. 1

Legal principles established

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  • Disputes concerning charges over land fall to be handled by the court possessed of jurisdiction as between chargor and chargee, per the Court of Appeal in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna

Court orders

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  1. 1.The matter is directed to be placed before the Presiding Judge of the High Court, Kitale, as the court possessed of jurisdiction, for hearing and final disposal
  2. 2.The interim orders earlier granted are extended for a period of seven (7) days

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3
  • Civil Procedure ActSections 1A, 1B, 3, 3A & 63
  • Land ActSection 90 (1), (2) and (3e)

Cases cited (1)

  • Co-operative Bank of Kenya Limited -vs- Patrick Kangethe Njuguna and 5 others
    MSA Civil Appeal No. 83 of 2016, [2017] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction; matter referred to the Presiding Judge of the High Court, Kitale under the Court of Appeal decision in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna

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, "Sally Cheptoo Bwambok & another v Kenya Commercial Bank Ltd & another [2019] KEELC 939 (KLR)", Case Analysis (2019). ELC Case No. 49 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/939/eng@2019-11-07

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