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ELCOtherKitale ELC 83 of 2018· [2019] KEELC 4797 (KLR)

Rael Kemunto v Wycliffe Adeko [2019] KEELC 4797 (KLR)

Environment and Land Court
31 January 2019
MNMwangi Njoroge
643 words in judgment
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The bottom line

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A Kenyan court refused to merge two related land disputes, sending one to the High Court because equity of redemption claims belong there.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kitale addressed an application for consolidation of the suit with Kitale ELC No. 83 of 2018 (Isaac Chebii Ngochoch v Agricultural Finance Corporation and 159 Others). The plaintiff, an innocent purchaser for value, opposed consolidation, arguing his suit involved only two parties and that under Section 99 of the Land Act a person prejudiced by a power of sale has a remedy in damages; he conceded, however, that he is the 15th defendant in the Kitale suit. The defendant favoured consolidation, noting both suits concerned Plot No. 11 and its subdivision into Plot No. 28. The court examined the Kitale suit and found its central issue was the plaintiff's equity of redemption over charged land, complicated by allegations of trespass, partial loan repayment and rival suits (Nairobi HCCC 142 of 2008 and Kitale HCCC 46 of 2008). Applying the Court of Appeal decision in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, the court declined consolidation, holding it could not grant consolidation orders. Instead it ordered transfer of Kitale ELC No. 83 of 2018 to the High Court, which it held had jurisdiction over the equity of redemption dispute, and stayed proceedings in the instant suit until the transferred suit was heard and determined. The ruling was to be filed in the transferred suit to effect the transfer. No costs order was made.

Key legal issues

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01

Consolidation of related suits

Holding

Consolidation was refused; the court found the matters, while connected, were not suitable for consolidation, particularly as the main suit concerns the equity of redemption which engages the High Court's jurisdiction

Reasoning

The court considered that the main issue in Kitale ELC No. 83 of 2018 was the plaintiff's equity of redemption over the charged land. Relying on the Co-operative Bank of Kenya v Patrick Kangethe Njuguna decision, the court reasoned that questions of the chargor's equity of redemption and the exercise of the chargee's statutory power of sale fall within the High Court's jurisdiction. It therefore declined consolidation and instead ordered transfer of the Kitale suit to the High Court, with a stay of this suit pending its determination.

p. 1

Legal principles established

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  • A court may decline consolidation of related suits and order transfer where the substrate concerns a party's equity of redemption falling within another court's jurisdiction

Court orders

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  1. 1.Refusal of consolidation of the two suits
  2. 2.Transfer of Kitale ELC No. 83 of 2018 to the High Court
  3. 3.Stay of proceedings in this suit until Kitale ELC No. 83 of 2018 is heard and determined
  4. 4.Ruling to be filed in Kitale ELC No. 83 of 2018 for execution of the transfer order

Authorities

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Legislation

  • Land ActSection 99

Cases cited (3)

  • Co-Operative Bank of Kenya Limited v Patrick Kangethe Njuguna & Others
    Mombasa Civil Appeal No. 83 of 2016
  • Charles Ngwengwe Khisa v AFC
    Nairobi HCCC 142 of 2008
  • Charles Ngwengwe Khisa v Isaac Ngochochi and AFC
    Kitale HCCC No. 46 of 2008
Jurisdiction invoked
Environment and Land Court jurisdiction over land matters; transfer ordered to High Court on jurisdictional grounds

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, "Rael Kemunto v Wycliffe Adeko [2019] KEELC 4797 (KLR)", Case Analysis (2019). Kitale ELC 83 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4797/eng@2019-01-31

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