[2019] KEELC 3899 (KLR)
The court determined that the central issue in dispute is the legality of the charge over the suit properties. Relying on the Court of Appeal decision in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna (Civil Appeal No. 83 of 2016), the court held that jurisdiction to determine the legality of a charge...
Source-derived case information.
- Citation
- [2019] KEELC 3899 (KLR)
- Parties
- Plaintiff: Peter Nugi Ng’ang’a; Defendant: National Industrial Credit (NIC) Bank Ltd; Defendant: Josphat Kariuki Mwaura; Defendant: The County Land Registrar, Uasin Gishu; Defendant: The County Land Registrar, Kakamega; Defendant: Miriam Okada
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 119 of 2018
- Procedural Posture
- Land Case / Interlocutory Application; Transfer of Suit to High Court
- Outcome
- Suit transferred to the High Court for hearing and determination; no determination on interim orders.
- Judges
- FM Njoroge
- Legal Topics
- Illegality of Charge, Forced Sale of Land, Capacity to Contract, Injunctive Relief, Transfer of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Nugi Ng’ang’a
Plaintiff
National Industrial Credit (NIC) Bank Ltd
Defendant
Josphat Kariuki Mwaura
Defendant
The County Land Registrar, Uasin Gishu
Defendant
The County Land Registrar, Kakamega
Defendant
Miriam Okada
Defendant
Procedural Posture
Land Case / Interlocutory Application; Transfer of Suit to High Court
Legal Issues
- 1 Whether the charge over the suit properties was valid and enforceable.
- 2 Whether the plaintiff had capacity to execute the charge documents.
- 3 Whether the 2nd defendant obtained a loan without the plaintiff's consent.
Ratio Decidendi
The court determined that the central issue in dispute is the legality of the charge over the suit properties. Relying on the Court of Appeal decision in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna (Civil Appeal No. 83 of 2016), the court held that jurisdiction to determine the legality of a charge vests in the High Court, not the Environment and Land Court. Consequently, the court ordered the transfer of the suit to the High Court for hearing and final determination. The court did not make a determination on the merits of the application for interim orders, instead deferring all substantive issues to the High Court.
Court Disposition
Suit transferred to the High Court for hearing and determination; no determination on interim orders.
Orders
- The suit is transferred to the High Court for hearing and final determination.
- The Deputy Registrar shall within 7 days, with notice to the parties and having regard to the Presiding Judge’s diary, place the file before him for mention for directions as to hearing of the application and the suit.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 119 OF 2018
PETER NUGI NG’ANG’A...................................................................PLAINTIFF
VERSUS
NATIONAL INDUSTRIAL
CREDIT (NIC) BANK LTD.....................................................1ST DEFENDANT
JOSPHAT KARIUKI MWAURA............................................2ND DEFENDANT
THE COUNTY LAND REGISTRAR,
UASIN GISHU...........................................................................3RD DEFENDANT
THE COUNTY LAND REGISTRAR, KAKAMEGA............4TH DEFENDANT
MIRIAM OKADA.....................................................................5TH DEFENDANT
DIRECTIONS
1. The application dated 21/1/2019 and filed in court on the same date has been brought by the plaintiff. It seeks the following orders:-
(1) ……spent
(2) …….spent
(3) That the interim orders be confirmed at the inter partes hearing until the suit is heard and determined.
(4) That this court be pleased to make any further orders necessary for the ends of justice.
(5) Costs be provided for.
2. The applicant has brought the application under Order 1A, 1B and 63(e) of theCivil Procedure Act and Order 40 rule 1 and 2 and 4(1) and Order 50 Rule 1of theCivil Procedure Rules Article 159 of the Constitution.
3. The grounds upon which the application is made are contained at the foot of the application. Briefly those grounds are that the plaintiff is the sole proprietor of Title No. Mois Bridge/Mois Bridge/Bock 9(Nzoia Sisal)/8 and Nzoia/Mois Bridge/Block 1/3769 which are due for forced sale; that the 2nd defendant secretly took a loan from the 1st defendant without the consent and knowledge of the plaintiff; that the 5th defendant presented herself a spouse of the plaintiff; that the plaintiff and his deceased wife had no capacity to sign the charge documents; that the charge is defective and incapable of enforcement and that unless stay is granted the plaintiff shall suffer irreparable damage.
4. The application is supported by a 27paragraph affidavit of the applicant dated 21/1/2019 which lays emphasis on the above grounds. Annexed to that affidavit is a copy of Title Deed for Moi’sBridge/Moi’s Block 9(Nzoia sisal)/8, and a copy of a certificate of official search for Nzoia/Moi’s Bridge Block 1/3769 dated 20/11/2018.
5. In reply to the application the 1st defendant filed a replying affidavit on 23/1/2019sworn by Stephen Atenya, the Senior Manager - Legal Services.
6. The 2nd defendant filed his replying affidavit on 14/2/2019.
7. The 5th defendant filed her reply to the application on 14/2/2019.
8. The 3rdand4th defendants did not file any reply to the application.
9. Having perused through the application and the responses thereto, I find that this is a matter concerning the legality of a charge. On the basis of the Court of Appeal decision inCivil Appeal No. 83 of 2016betweenCo-operative Bank of Kenya Limited and Patrick Kangethe NjugunaI hereby order that this suit be transferred to the High Court for hearing and final determination. The Deputy Registrar shall within 7 days with notice to the parties and having regard to the Presiding Judge’s diary place the file before him for a mention for directions as to hearing of the application and the suit.
It is so ordered.
Dated, signed and delivered at Kitale on this 28thday of March, 2019.
MWANGI NJOROGE
JUDGE
28/03/2019
Coram:
Before - Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Wanyonyi for plaintiff/applicant
Ms. Mugi holding brief for Mumia for 1st respondent
COURT
Directions of this court read in open court.
MWANGI NJOROGE
JUDGE
28/03/2019