[2020] KEELC 21 (KLR)
The Environment and Land Court, in light of the Court of Appeal's decision in Co-operative Bank of Kenya Ltd v Patrick Kangethe & Others, determined that it lacks jurisdiction to hear disputes relating to charges over land. The dispute in question concerns a charge registered over several land parcels in favour of...
Source-derived case information.
- Citation
- [2020] KEELC 21 (KLR)
- Parties
- Plaintiff: George Mateyi Gabriel; Defendant: Joseph Malala; Defendant: Dennis S. Nawate; Defendant: Sella N. Nasimiyu, both t/a Deljo Enterprises Ltd; Defendant: Family Bank Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 5 of 2013
- Procedural Posture
- Land and Property Suit / Order on Jurisdiction and Transfer
- Outcome
- Suit transferred to the High Court for further directions.
- Legal Topics
- Jurisdiction of Court, Land Charge Disputes, Transfer of Suit, Commercial Transactions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Mateyi Gabriel
Plaintiff
Joseph Malala
Defendant
Dennis S. Nawate
Defendant
Sella N. Nasimiyu, both t/a Deljo Enterprises Ltd
Defendant
Family Bank Ltd
Defendant
Procedural Posture
Land and Property Suit / Order on Jurisdiction and Transfer
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to determine disputes relating to charges over land parcels.
- 2 Whether the suit and application should be struck out or transferred to the appropriate court.
Ratio Decidendi
The Environment and Land Court, in light of the Court of Appeal's decision in Co-operative Bank of Kenya Ltd v Patrick Kangethe & Others, determined that it lacks jurisdiction to hear disputes relating to charges over land. The dispute in question concerns a charge registered over several land parcels in favour of Family Bank Ltd, making it a commercial transaction outside the court's jurisdiction. Rather than striking out the suit and application, the court found it proper to transfer the matter to the High Court, which has the requisite jurisdiction to hear and determine such disputes. This approach ensures that the parties are not prejudiced by a technicality and that the matter is...
Court Disposition
Suit transferred to the High Court for further directions.
Orders
- This suit is hereby transferred to the High Court for mention on 3rd March 2020 to take further directions on the application dated 30th August 2017.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA
ELC CASE NO. 05 OF 2013.
GEORGE MATEYI GABRIEL.......................................................PAINTIFF
VERSUS
JOSEPH MALALA .................................................................1ST DEFENDANT
DENNIS S. NAWATE...............................................................2ND DEFENDANT
SELLA N. NASIMIYU
BOTH T/A DELJO ENTERPRISES LTD.............................3RD DEFENDANT
FAMILY BANK LTD................................................................4TH DEFENDANT
O R D E R
This Court was due to deliver a ruling on the plaintiff’s application dated 30th August 2017.
However, since 12th October 2017 when the Court of Appeal delivered it’s Judgment in CO – OPERATIVE BANK OF KENYA LTD.V. PATRICK KANGETHE & OTHERS 2017 eKLR, this Court has been divested of the jurisdiction to determine disputes relating to charges. From the plaint dated 10th August 2012 and filed herein on 11th July 2012, this dispute relates to a charge registered over land parcels NO EAST BUKUSU/S.KANDUYI/15325,15326,15327,15328, 15329and 15330 by the plaintiff in favour of the 4th defendant. Submissions were invited and filed by both parties. Upon perusal of the pleadings, it is clear that this Court has no jurisdiction to determine the suit and the application dated 30th August 2017. Indeed, in his submissions, MR KITUYI counsel for the 4th defendant has made the following submission on the issue of jurisdiction: -
“Further, this being a commercial transaction, this Honourable Court has no jurisdiction to deal with this matter making the entire application and the suit bad in law, defective and incompetent hence should be struck out.”
I agree that on the basis of the decision in CO-OPERATIVE BANK OF KENYA .V. PATRICK KANGETHE(supra), this Court has no jurisdiction. But I don’t take the view that I should strike out this suit and the application dated 30th August 2017. The proper thing to do is to transfer this suit to the High Court. I therefore, make the following order: -
1. This suit be and is hereby transferred to the High Court for mention on 3rd March 2020 to take further directions on the application dated 30th August 2017.
Boaz N. Olao.
J U D G E
27th February 2020
Mr Murunga for Mr Aswani for Applicant present
Mr Kituyi for Respondent present
Joy/Okwaro – Court Assistants
Boaz N. Olao.
J U D G E
27th February 2020