[2019] KEELC 2329 (KLR)
The court determined that it lacked jurisdiction to hear and determine the application and the suit, as the predominant claim concerned the validity of a charge on the basis of lack of spousal consent. Citing the Supreme Court decision in Republic v Karisa Chengo & 2 Others (2017) eKLR, the court held that such...
Source-derived case information.
- Citation
- [2019] KEELC 2329 (KLR)
- Parties
- Plaintiff: Elizabeth Nairuko Muruntoi Nkurumwa; Defendant: Richard Mancha Sururu; Defendant: Equity Bank Limited; Defendant: Keysian Auctioneers
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 75 of 2018
- Procedural Posture
- Environment and Land Cause / Ruling on Interlocutory Injunction and Jurisdictional Objection
- Outcome
- Application not determined on merits; suit and application transferred to High Court Commercial Division for want of jurisdiction.
- Judges
- MN Kullow
- Legal Topics
- Spousal Consent, Jurisdiction, Injunctive Relief, Land Charge, Matrimonial Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Nairuko Muruntoi Nkurumwa
Plaintiff
Richard Mancha Sururu
Defendant
Equity Bank Limited
Defendant
Keysian Auctioneers
Defendant
Procedural Posture
Environment and Land Cause / Ruling on Interlocutory Injunction and Jurisdictional Objection
Legal Issues
- 1 Whether the court has jurisdiction to hear a dispute challenging a land charge on the basis of lack of spousal consent.
- 2 Whether an interlocutory injunction should issue to restrain sale or transfer of the suit property pending determination of the suit.
Ratio Decidendi
The court determined that it lacked jurisdiction to hear and determine the application and the suit, as the predominant claim concerned the validity of a charge on the basis of lack of spousal consent. Citing the Supreme Court decision in Republic v Karisa Chengo & 2 Others (2017) eKLR, the court held that such matters fall within the jurisdiction of the Commercial Division of the High Court, not the Environment and Land Court. Consequently, the court declined to address the merits of the application and ordered the transfer of the matter to the appropriate division.
Court Disposition
Application not determined on merits; suit and application transferred to High Court Commercial Division for want of jurisdiction.
Orders
- The suit and application are transferred to the High Court Commercial Division for hearing and determination.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
ELC CAUSE NO. 75 OF 2018
ELIZABETH NAIRUKO MURUNTOI NKURUMWA............PLAINTIFF
-VERSUS-
RICHARD MANCHA SURURU.....................................1ST DEFENDANT
EQUITY BANK LIMITED..............................................2ND DEFENDANT
KEYSIAN AUCTIONEERS.............................................3RD DEFENDANT
RULING
The Application before me is the Notice of Motion dated 14th December, 2017 which was brought under Order 40 Rule 1 Order 51 Rule 1 of the Civil Procedure Rules for orders that: -
1. Pending the hearing and determination of this application interparties this court be pleased to issue an injunction restraining the Defendants herein whether by themselves, their agents and/or servants from offering for sale, advertising, selling or transferring all that parcel of land registered as LR NO. CIS MARA/ENTIAN/579.
2. Pending the hearing and determination of this suit, the court be pleased to issue an injunction restraining the Defendants herein whether by themselves, their agents and/or servants from offering for sale, advertising, selling or transferring all that parcel of land registered as LR NO. CIS MARA/ENTIAN/579.
3. Costs of this application be in the cause.
The application was based on the grounds that the Plaintiff is the wife of one Muruntoi Kirampa who was the registered owner of land parcel No. CIS MARA/ENTIAN/579 which parcel of land was changed to the 2nd defendant as a security for loan and that the Applicant did not give her consent as the spouse of the chargor to have the suit parcel obtained and that the land is also her matrimonial home. The applicant further contends that she was not informed that the 1st Defendant who was granted the loan had defaulted.
The Applicant contend that non-compliance with Mandatory Provision Section 28 of the Land Registration Act, 2012 for lack of spousal consent renders the charge invalid null and void.
The Application was supported by the Affidavit of the applicant.
The Application was opposed by the 2nd Respondent who filed a replying affidavit.
I wish not to discuss the merit of the application as I find that subsequent to the decision of the supreme court in case of REPUBLIC -VERSUS- KARISA CHENGO & 2 OTHERS(2017)EKLR this court lacks the jurisdiction to hear the matter as the predominant claims in respect of a charge being challenged IS on the account of lack of spousal consent and from the decision from the same court it falls within the jurisdiction of the Commercial Division and in the circumstances I find that the court lacks jurisdiction to hear the matter herein and I thus transfer the same to High Court Commercial Division.
DATED, SIGNED and DELIVERED in open court at NAROK on this 23rd day of July, 2019
Mohammed Kullow
Judge
23/7/19
In the presence of:-
Mr Kiptoo holding brieffor Kyala for the 2nd and 3rd respondent
N/A for the Plaintiff
CA:Chuma/kimiriny