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ELCOtherLand Case No. 119 of 2018· [2019] KEELC 3899 (KLR)

Peter Nugi Ng’ang’a v National Industrial Credit (Nic) Bank Ltd & 4 others [2019] KEELC 3899 (KLR)

Environment and Land Court
28 March 2019
MNMwangi Njoroge
555 words in judgment
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The bottom line

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Kenya's Land Court in Kitale ruled it cannot hear disputes challenging the legality of a bank charge over land, transferring the case to the High Court.

What this practically means

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Executive summary

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This is a directions ruling in an application dated 21 January 2019 filed by the plaintiff, Peter Nugi Ng'ang'a, in a suit against NIC Bank Ltd, Josphat Kariuki Mwaura, two County Land Registrars and Miriam Okada. The plaintiff, claiming to be sole proprietor of Title No. Mois Bridge/Mois Bridge/Block 9 (Nzoia Sisal)/8 and Nzoia/Mois Bridge/Block 1/3769, sought confirmation of interim orders until the suit was determined. He alleged that the 2nd defendant secretly took a loan from the 1st defendant without his consent, that the 5th defendant presented herself as his spouse, that he and his deceased wife lacked capacity to sign the charge documents, and that the charge was defective and incapable of enforcement. The 1st, 2nd and 5th defendants filed replying affidavits; the 3rd and 4th defendants did not respond. After perusing the application and the responses, Mwangi Njoroge J characterised the dispute as one concerning the legality of a charge. Relying on the Court of Appeal's decision in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna (Civil Appeal No. 83 of 2016), the court held that the ELC lacked jurisdiction and ordered the suit transferred to the High Court for hearing and final determination. The Deputy Registrar was directed to place the file before the Presiding Judge within 7 days for mention and directions. No costs order was made. The interim relief sought was not confirmed, as the court disposed of the matter by transfer.

Key legal issues

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Jurisdiction of the ELC over disputes on the legality of a charge

Holding

The suit, being a challenge to the legality and enforceability of a charge, is outside the ELC's jurisdiction and was transferred to the High Court on the strength of the Court of Appeal's decision in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna.

Reasoning

The court perused the application and the responses of the 1st, 2nd and 5th defendants and characterised the dispute as one concerning the legality of a charge rather than a land dispute within Article 162(2) jurisdiction. Relying on the Court of Appeal decision in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna, it concluded that the proper forum is the High Court and directed transfer.

p. 2

Legal principles established

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  • A suit concerning the legality of a charge and its enforcement does not fall within the jurisdiction of the Environment and Land Court and must be tried by the High Court, following Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna

Court orders

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  1. 1.The suit be transferred to the High Court for hearing and final determination
  2. 2.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

Authorities

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Legislation

  • Civil Procedure ActOrder 1A, 1B and 63(e)
  • Civil Procedure RulesOrder 40 rule 1, 2 and 4(1); Order 50 Rule 1
  • Constitution of KenyaArticle 159

Cases cited (1)

  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna
    Civil Appeal No. 83 of 2016
Jurisdiction invoked
Order 1A, 1B and 63(e) of the Civil Procedure Act, Order 40 rules 1, 2 and 4(1) and Order 50 Rule 1 of the Civil Procedure Rules, Article 159 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Nugi Ng’ang’a v National Industrial Credit (Nic) Bank Ltd & 4 others [2019] KEELC 3899 (KLR)", Case Analysis (2019). Land Case No. 119 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3899/eng@2019-03-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.