[2019] KEELC 2273 (KLR)
The court found that the predominant cause of action in the matter was of a commercial nature, arising from a loan agreement and the exercise of a statutory power of sale by the defendant bank. Relying on the Supreme Court decision in Republic v Karisa Chengo & Others (2017) eKLR, the court held that it lacked...
Source-derived case information.
- Citation
- [2019] KEELC 2273 (KLR)
- Parties
- Plaintiff: Lernard Ole Seme; Plaintiff: Petro Saruni Ole Koitaat; Plaintiff: Ntukusioi Ole Sapai; Defendant: Equity Bank (Kenya) Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 468 of 2017
- Procedural Posture
- Injunction Application / Ruling on Preliminary Objection/jurisdiction
- Outcome
- Suit transferred for want of jurisdiction.
- Judges
- MN Kullow
- Legal Topics
- Statutory Power of Sale, Injunctions, Jurisdiction, Land Charge Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lernard Ole Seme
Plaintiff
Petro Saruni Ole Koitaat
Plaintiff
Ntukusioi Ole Sapai
Plaintiff
Equity Bank (Kenya) Limited
Defendant
Procedural Posture
Injunction Application / Ruling on Preliminary Objection/jurisdiction
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to hear and determine a dispute arising from a charge over land where the predominant cause of action is commercial in nature.
- 2 Whether an injunction should issue to restrain the defendant from exercising its statutory power of sale over the suit properties.
Ratio Decidendi
The court found that the predominant cause of action in the matter was of a commercial nature, arising from a loan agreement and the exercise of a statutory power of sale by the defendant bank. Relying on the Supreme Court decision in Republic v Karisa Chengo & Others (2017) eKLR, the court held that it lacked jurisdiction to hear and determine the application and the suit, as the dispute did not fall within the purview of the Environment and Land Court. Consequently, the court ordered that the suit be transferred to the Narok High Court for hearing and determination.
Court Disposition
Suit transferred for want of jurisdiction.
Orders
- The suit is transferred to the Narok High Court for hearing and determination.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 468 OF 2017
LERNARD OLE SEME.................................................................1ST PLAINTIFF
PETRO SARUNI OLE KOITAAT...............................................2ND PLAINTIFF
NTUKUSIOI OLE SAPAI.............................................................3RD PLAINTIFF
-VERSUS-
EQUITY BANK (KENYA) LIMITED..............................................DEFENDANT
RULING
The Application before me is the Notice of Motion dated 30th May, 2017 and brought under order 40 Rule 1,2,3 Section 97 and 99 of the Land Act, Articles 10,19, 23, 27 and 47 of the constitution of Kenya 2010 and seeks for an order of injunction restraining the Defendant from exercising its statutory power of sale over and in respect of Land Parcel TRANS MARA/MOYOI/1159. 1489 and 1690 and in particular, advertising, re advertising lesing and interfering with the Plaintiffs titles rights and interest in the suit land.
The Application was based on the grounds that since the Applicant is the right owner of the suit land but the said land was charged to the Defendant pursuant to a loan that was disbursed to the Plaintiff in which the maximum interest rate to be chargeable was to be 23. 99% per annum. However, the defendant in contraction of the banking varied the said terms and hence the instant suit.
The Application was opposed by the Respondent by way of a Replying Affidavit.
I have read the application and the pleadings filed and I do find that the predominant cause of action in the matter is purely of commercial nature and pursuant to the decision of the supreme court in the case of REPUBLIC -VERSUS- KARISA CHENGO & OTHERS(2017)EKLR I find that I lack jurisdiction to hear and determine the application and the suit and I consequently order that the suit herein be transferred to Narok High Court for hearing and determination.
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:-
Parties and advocates absent
CA:Chuma
Mohammed Kullow
Judge
23/7/19