[2018] KEELC 350 (KLR)
The court determined that the dispute revolves around the realization of security under a charge and the satisfaction of an overdraft facility, not the use, occupation, or title to land. Based on the Court of Appeal's interpretation in Co-operative Bank of Kenya Vs Patrick Kangethe Njuguna & 5 Others (2017) eKLR,...
Source-derived case information.
- Citation
- [2018] KEELC 350 (KLR)
- Parties
- Plaintiff: Panna Dilip Chaurhan; Defendant: Bank of Africa Kenya Limited; Defendant: Garam Investments Auctioneers
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 71 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Jurisdiction
- Outcome
- Matter transferred to the High Court for want of jurisdiction.
- Judges
- A Ombwayo
- Legal Topics
- Statutory Power of Sale, Realization of Security, Jurisdiction of Courts, Overdraft Facility, Charge on Property
- 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
Panna Dilip Chaurhan
Plaintiff
Bank of Africa Kenya Limited
Defendant
Garam Investments Auctioneers
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Jurisdiction
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction over disputes relating to realization of security under a charge.
- 2 Whether the dispute concerns use, occupation, or title to land within the meaning of Article 162(2)(b) of the Constitution.
- 3 Whether the matter should be heard by the High Court.
Ratio Decidendi
The court determined that the dispute revolves around the realization of security under a charge and the satisfaction of an overdraft facility, not the use, occupation, or title to land. Based on the Court of Appeal's interpretation in Co-operative Bank of Kenya Vs Patrick Kangethe Njuguna & 5 Others (2017) eKLR, such matters fall outside the jurisdiction of the Environment and Land Court. The proper forum for adjudication is the High Court, as the issues pertain to the enforcement of financial obligations and statutory power of sale rather than land use or title. Consequently, the court ordered the transfer of the matter to the High Court of Kenya at Eldoret.
Court Disposition
Matter transferred to the High Court for want of jurisdiction.
Orders
- The suit is transferred to the High Court of Kenya at Eldoret.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E & L CASE NO. 71 OF 2018
PANNA DILIP CHAURHAN....................................................PLAINTIFF/APPLICANT
VERSUS
BANK OF AFRICA KENYA LIMITED...................1ST DEFENDANT/RESPONDENT
GARAM INVESTMENTS AUCTIONEERS...........2ND DEFENDANT/RESPONDENT
RULING
This matter came up for hearing on the 4. 5.2018 when the issue of jurisdiction was raised, in view of the decision of the Court of Appeal sitting at Mombasa in civil Appeal No. 83 of 2016.
In the case before me, the subject matter is an overdraft facility approximately Kshs.540,000,000 and a charge on properties registered in the names of the plaintiff. The plaintiff questions the process of realization of security by the chargee.
I do find that the issues for determination are substantially revolving on a charge, and, whether the plaintiff has satisfied the overdraft facility. There is no challenge on use of land, occupation or title.
In the case of Co-operative Bank of Kenya Vs Patrick Kangethe Njuguna & 5 Others (2017) eKLR, the Court of Appeal held 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.
Dated and delivered at Eldoret this 20th day of December, 2018.
A. OMBWAYO
JUDGE