[2016] KEHC 1383 (KLR)
The disputes in both HCCC No. 246 of 2009 and HCCC No. 209 of 2012 are commercial in nature, centering on the validity of charge documents and the bank's right to exercise its power of sale over the suit properties. The High Court is the proper forum with jurisdiction to determine such matters, even where the...
Source-derived case information.
- Citation
- [2016] KEHC 1383 (KLR)
- Parties
- Plaintiff: Chepchirchir Bomet Fraser; Defendant: National Bank of Kenya; Plaintiff: Nancy Jeruto Bomet
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 246 of 2009
- Procedural Posture
- Civil Suit / Ruling on Consolidation and Jurisdiction
- Outcome
- Cases consolidated and to proceed before the High Court.
- Judges
- JK Mulwa
- Legal Topics
- Charge Enforcement, Loan Repayment Dispute, Power of Sale, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Chepchirchir Bomet Fraser
Plaintiff
National Bank of Kenya
Defendant
Nancy Jeruto Bomet
Plaintiff
Procedural Posture
Civil Suit / Ruling on Consolidation and Jurisdiction
Legal Issues
- 1 Whether the High Court has jurisdiction to hear and determine disputes involving the validity of charge documents and recovery of loans secured by land.
- 2 Whether the two suits, HCCC No. 246 of 2009 and HCCC No. 209 of 2012, should be consolidated for hearing before the High Court.
- 3 Whether the defendant bank holds a valid legal charge over the suit properties after alleged discharge of loans.
Ratio Decidendi
The disputes in both HCCC No. 246 of 2009 and HCCC No. 209 of 2012 are commercial in nature, centering on the validity of charge documents and the bank's right to exercise its power of sale over the suit properties. The High Court is the proper forum with jurisdiction to determine such matters, even where the outcome may involve the sale of land used as security for loans. Consolidation of the two cases is warranted as they arise from the same transactions and involve the same properties and parties, thereby promoting judicial efficiency and consistency. The lead file shall be HCCC No. 246 of 2009, and the cases will proceed for hearing before the High Court.
Court Disposition
Cases consolidated and to proceed before the High Court.
Orders
- The two cases, HCCC No. 246 of 2009 and HCCC No. 209 of 2012, are consolidated for hearing before the High Court.
- The lead file shall be HCCC No. 246 of 2009.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL SUIT 246 OF 2009
CONSOLIDATED WITH HCCC NO 209 OF 2012
CHEPCHIRCHIR BOMET FRASER.................................................. PLAINTIFF
VERSUS
NATIONAL BANK OF KENYA......................................................... DEFENDANT
RULING
1. High Court Civil Case No. 246 of 2009 filed on the 19th August 2009. The plaintiff sued National Bank of Kenya and sought prayers for a declaration that the defendant (Bank) held no Legal charge over LR No.15333/3 and LR 153333/1 Rongai upon grounds that the plaintiff discharged the Loans and advances granted to the late K. Bomet deceased.
This position is reiterated in the Amended plaint filed on the 12th October 2009. The defendant in its Amended defence filed on the 2nd November 2009 denied that the loans were fully paid. Looking at the cause of action, there is no dispute that the matter is purely a commercial matter involving a charger and a chargee. The High Court is the forum which the necessary jurisdiction to hear and determine the dispute in this case.
2. In High Court Civil Case No. 209 of 2012 the plaintiff is Chepchirchir and Nancy Jeruto Bomet against National Bank of Kenya and two others. I have seen the plaint. The case filed in the Environment and Land Court. The cause of action as may be deduced from the claim concerns the same cause of action in respect of properties stated earlier in HCCC No.246 of 2009, which were then under threat of being sold by the defendant bank in exercise of its chargees power of sale arising from failure to pay off the loan advanced to the plaintiffs as stated in HCCC No. 246 of 2009. Other parties however were enjoined in this case and their defence was that they were not parties to the contracts between the plaintiff and the Bank. In my view the cause of action in both suits concern the validity of the charge documents giving rise to the purported sale of the properties stated by the chargee.
3. There is no doubt therefore that the disputes in both case are purely commercial in nature.
The Environment and land Court Judge Hon. Lucy Waithaka in HCCC No. 209 in 2012, vide directions issued on the 4th June 2013 made a direction that these two cases be consolidated and be heard by the High Court which court has jurisdiction to hear and determine disputes of commercial and civil nature notwithstanding that orders issued by the High Court lead to sale of land and more so in recovery of loans advanced where the land was offered as security and charged to secure the chargees interests. I have no reason to depart from the above directions.
4. The two cases will therefore proceed for hearing before the High Court. Parties have already agreed that the lead file shall be HCCC No. 246 of 2009. They may proceed to take hearing dates in the High court.
Dated, signed and delivered in co this 10th day of November 2016
JANET MULWA
JUDGE