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ELCOtherNot stated in the excerpt· [2022] KEELC 1002 (KLR)
Joseph Mburu Kimani v Family Bank Limited [2022] KEELC 1002 (KLR)
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·~9 min to read original · ~4 min briefThe bottom line
#A Nakuru court ruled that disputes between borrowers and banks over charged land belong in the High Court, not the Environment and Land Court.
What this practically means
#Executive summary
#This ruling of the Environment and Land Court at Nakuru (L. A. Omollo, J) determined the Plaintiff's Notice of Motion dated 15th December 2021 seeking an interlocutory injunction to restrain the Defendant chargee from selling NAKURU MUNICIPALITY BLOCK 12/252 pending hearing of the suit. The Plaintiff, who charged the property in 2017 to secure bank facilities totalling over Kshs. 36 million, alleged that no statutory notices were served, that the reserve price of Kshs. 37.5 million was inordinately low against a counter-valuation of Kshs. 63 million, and that the property was matrimonial property housing his family. The Defendant, through its legal officer Sylvia Waban, contended that all statutory notices under Sections 90 and 96 of the Land Act were served, including on the spouse; that a valuation compliant with Section 97 of the Land Act was done; and that the Plaintiff was a notorious defaulter with arrears exceeding Kshs. 5.9 million who had not established a prima facie case. Although the parties framed issues on service of statutory notices, the valuation, and the Giella criteria for interlocutory injunctions, the court did not reach those merits. Citing the Court of Appeal's decision in Co-operative Bank of Kenya Ltd v Patrick Kaneohe Njuguna, it held that disputes over mortgages, charges and collection of dues fall outside the ELC's jurisdiction under Article 162(2)(b) and are commercial matters for the High Court. The court accordingly ordered the suit transferred to the High Court at Nakuru, without determining the injunction application or costs.
Key legal issues
#01
Jurisdiction of the ELC over chargee's exercise of statutory power of sale
Holding
The ELC lacks jurisdiction; the dispute is commercial and belongs to the High Court
Reasoning
Relying on the Court of Appeal's decision in Co-operative Bank of Kenya Ltd v Patrick Kaneohe Njuguna, the court held that mortgages, charges and collection of dues are outside the ELC's Article 162(2)(b) mandate. The suit, founded on a charge and the chargee's attempt to realise security, is therefore a commercial dispute for the High Court.
p. 4
Legal principles established
#- The Environment and Land Court's jurisdiction over disputes connected to use of land does not extend to mortgages and charges, which fall within the civil jurisdiction of the High Court
Court orders
#- 1.That this suit be transferred to the High Court of Kenya at Nakuru
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010 (Environment and Land Court jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Mburu Kimani v Family Bank Limited [2022] KEELC 1002 (KLR)", Case Analysis (2022). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1002/eng@2022-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.