[2018] KEELC 900 (KLR)
The court determined that the dispute at hand is not about the validity of the charge or use of land, but rather concerns whether the money under the charge has been paid and whether the statutory power of sale has been properly exercised. Citing the precedent in Co-operative Bank of Kenya Ltd v Patrick Kangethe...
Source-derived case information.
- Citation
- [2018] KEELC 900 (KLR)
- Parties
- Plaintiff: Jeruto Tapkili Tengekyon; Plaintiff: Samwel Kipruto Chepkeitany; Defendant: Agricultural Finance Corporation; Defendant: Kolato Auctioneers; Defendant: Stephen Kibowen
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 119 of 2017
- Procedural Posture
- Land and Property / Ruling on Jurisdiction and Transfer
- Outcome
- Transferred to the High Court of Kenya at Eldoret for hearing and determination.
- Judges
- A Ombwayo
- Legal Topics
- Statutory Power of Sale, Charge on Land, Jurisdiction, Transfer of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeruto Tapkili Tengekyon
Plaintiff
Samwel Kipruto Chepkeitany
Plaintiff
Agricultural Finance Corporation
Defendant
Kolato Auctioneers
Defendant
Stephen Kibowen
Defendant
Procedural Posture
Land and Property / Ruling on Jurisdiction and Transfer
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to hear a dispute involving the exercise of statutory power of sale under a charge.
- 2 Whether the dispute is substantially a commercial matter to be tried by the High Court.
Ratio Decidendi
The court determined that the dispute at hand is not about the validity of the charge or use of land, but rather concerns whether the money under the charge has been paid and whether the statutory power of sale has been properly exercised. Citing the precedent in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna & 5 Others (2017) eKLR, the court held that such disputes are commercial in nature and fall within the jurisdiction of the High Court, not the Environment and Land Court. Consequently, the matter should be transferred to the High Court of Kenya at Eldoret for determination.
Court Disposition
Transferred to the High Court of Kenya at Eldoret for hearing and determination.
Orders
- The suit is transferred to the High Court of Kenya at Eldoret.
- Mention on 14th November, 2018.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT ELDORET
E & L CASE NO. 119 OF 2017
JERUTO TAPKILI TENGEKYON...................................1ST PLAINTIFF
SAMWEL KIPRUTO CHEPKEITANY............................2ND PLAINTIFF
VERSUS
AGRICULTURAL FINANCE CORPORATION..........1ST DEFENDANT
KOLATO AUCTIONEERS.............................................2ND DEFENDANT
STEPHEN KIBOWEN.....................................................3RD DEFENDANT
RULING
In view of the decision in Co-operative Bank of Kenya Ltd and Patrick Kangethe Njuguna and five Others (2017) eKLR, this court finds that this is substantially a commercial dispute to be tried in the High Court of Kenya, Eldoret. In the case of Co-operative Bank of Kenya Vs Patrick Kangethe Njuguna & 5 Others (2017) eKLR, the court found in a nutshell that a charge does not constitute use of land within the meaning of Article 162(2) b of the Constitution of Kenya 2010. The question herein is not validity of the charge but whether the money has been paid and whether the right procedure of exercising statutory power of sale is being followed.
In conclusion, I do find that this is a matter to be tried by the High Court. I do order that the same be transferred to the High Court of Kenya at Eldoret. Mention on 14th November,2018.
Dated and delivered at Eldoret this 1st day of November, 2018.
A. OMBWAYO
JUDGE