Amos Kipkorir Buttit & 2 others v Bank of Africa Kenya Ltd [2017] KEELC 2171 (KLR)
The bottom line
#An Eldoret court stopped a bank from selling charged land because it couldn't prove it served the borrower proper statutory notices.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the honourable court has jurisdiction to hear this matter
- 2.Whether the injunction herein should be granted
Key legal issues
#Jurisdiction of the Environment and Land Court over banking/charge disputes relating to land
The court held that it has jurisdiction because the dispute relates to a charge, which is an instrument granting an enforceable interest in land under section 13(2)(d) of the Environment and Land Court Act, notwithstanding the commercial character of the underlying transaction.
The court acknowledged divergent High Court authorities (Kisimani Holdings, Esther Nyanganyi Onyango) treating loan recovery over charged land as purely commercial matters for the High Court, and Nyamweya J's contrary view in Jane Wambui Ngeru. Preferring the latter approach, the court read section 13(2)(d) of the Environment and Land Court Act literally: contracts, choses in action or instruments granting enforceable interests in land fall within its jurisdiction. A charge over land is such an instrument, so the ELC is rightfully seized of the matter.
Whether an interlocutory injunction should issue to restrain sale of the charged properties
The application was allowed: no affidavit of service or evidence of postage proved service of the statutory notices under sections 90 and 96(2) of the Land Act, establishing a prima facie case of procedural impropriety; damages would not be an adequate substitute because the defendant should not profit from its own procedural breach; and the balance of convenience favoured the plaintiffs in occupation.
Applying the Giella v Cassman Brown principles, the court found procedural impropriety in the absence of proof of service of the statutory notice, demand notice and 40 days' notice. It declined to allow the defendant to benefit from that impropriety, found the balance of convenience favoured the plaintiffs in occupation, and directed maintenance of the status quo pending the hearing and determination of the suit.
Legal principles established
#- The Environment and Land Court has jurisdiction over disputes concerning charges and instruments granting enforceable interests in land, even where the underlying dispute is commercial or contractual in nature
- A chargee must demonstrate service of the statutory notice under section 90 of the Land Act; absent an affidavit of service or evidence of postage, procedural impropriety is established and supports a prima facie case for injunction
- A chargee cannot benefit from its own procedural impropriety; the balance of convenience favours the chargors in occupation
Court orders
#- 1.The application dated 27th January 2016 is allowed
- 2.Status quo to be maintained pending the hearing and determination of the instant suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; section 13 of the Environment and Land Court Act; section 150 of the Land Act, 2012
Relief refused
#Injunction pending the hearing of the suit restraining the defendant from advertising, selling, transferring or interfering with the suit properties (final restraint not granted at this stage)
The court found it fair and in the interest of justice that status quo be maintained rather than granting the full interlocutory injunction in the terms sought
Costs
No costs order recorded in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The application is allowed
It is therefore fair and in the interest of justice that status quo should be maintained pending the hearing and determination of the instant suit.
I do hold that the disputes herein, that is regarding the charge over the land herein, falls under “…instruments granting any enforceable interests in land…” and therefore this Court is rightfully in seizure of the jurisdiction of this matter.
there is no affidavit of service or evidence of postage and therefore there is establishment of a prima facie case that there was procedural impropriety
the balance of convenience tilts in favour of the Plaintiffs who are in occupation of the suit premises
an irregular exercise of the power of sale has a remedy in damages. This is in accordance with section 99(4) of the Land Act, 2012.
Issues in the judgment
#The defendant bank is never named in the judgment text; the parties are referred to only as 'Defendant/Respondent', and the plaintiffs' full names are likewise not fully stated (only Michael Kimeli Rotich is named as deponent)
Contradictory references to the same Kericho case under two different names ('Samuel Kiprono Sawe' and 'Samuel Kiprono Sang')
Inconsistent spelling of the Giella case ('Giella', 'Giela') in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amos Kipkorir Buttit & 2 others v Bank of Africa Kenya Ltd [2017] KEELC 2171 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2171/eng@2017-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.