Automated Summary
Key Facts
The case involves plaintiffs seeking to restrain the sale of their land parcel (Bukhayo/Mundika/11942) by NCBA Bank Kenya Limited through a permanent injunction and an order for rendering loan accounts. The dispute centers on jurisdiction: the judge ruled that the High Court lacks authority over land-related statutory power of sale matters, which fall under the Environment and Land Court per the Land Act and Land Registration Act. The plaintiffs alleged they were not properly notified of loan default, while the bank claimed compliance with statutory notices. The court denied the injunction but ordered the bank to provide an updated account statement within 45 days.
Issues
- The court addressed the plaintiffs' request for an updated account statement to verify outstanding balances. While the defendants claimed the account was in default, the judge ruled that providing the statement is a constitutional right and ordered it to be furnished within 45 days, as it does not constitute an admission of liability.
- The court considered the application for a temporary injunction to prevent the sale of land parcel Bukhayo/Mundika/11942. The plaintiffs failed to establish a prima facie case due to lack of evidence proving loan repayment compliance, and the sale date (29th October 2024) had passed before the suit was filed (13th November 2024), rendering the injunction request moot. The judge declined the injunction but granted the prayer for an updated account statement.
- The primary issue is whether the High Court has jurisdiction to adjudicate disputes related to the statutory power of sale under the Land Act, as the plaintiffs argue the matter should be heard in the Environment and Land Court per sections 2 and 150 of the Land Act. The court must determine if its lack of jurisdiction renders the proceedings a nullity, referencing precedents like Macharia & another vs. Kenya Commercial Bank Limited [2012] KESC 8 (KLR).
Holdings
- The court ordered the defendant bank to provide an updated statement of account to the plaintiffs within 45 days, noting that access to information is a constitutional right.
- The court denied the plaintiffs' request for a temporary injunction to restrain the sale of the land parcel Bukhayo/Mundika/11942, as they failed to provide evidence of loan repayment and the sale date had already passed.
Remedies
- The court declined to grant a temporary injunction restraining the defendants from selling the land parcel Bukhayo/Mundika/11942, as the sale date had already passed and there was no prima facie case established by the plaintiffs. Additionally, the court denied the prayer for suspension of deductions and interest accrual due to lack of evidence of repayment.
- The court ordered the first defendant (NCBA Bank Kenya Limited) to provide an updated statement of account for the plaintiffs' loan within 45 days, emphasizing that this was a constitutional right to access information and not an admission of liability by the defendants.
Legal Principles
- The court applied judicial review to determine the jurisdiction of the High Court over land disputes, emphasizing that jurisdiction must be conferred by statute or constitution. It concluded that the Environment and Land Court, not the High Court, has authority under the Land Act and Land Registration Act for matters involving statutory power of sale over land.
- The court emphasized that the substance of the dispute (land rights and statutory power of sale) should determine jurisdiction, rather than the formal nature of the lending contract. It distinguished between the money-lending agreement and the charge instrument, asserting the latter's governance by land legislation.
Precedent Name
- Giella vs. Cassman Brown & Co. Ltd
- Nyutu & 3 others vs. Gatheru & 2 others
- Nguruman Limited vs. Jan Bonde Nielsen & 2 others
- Macharia & another vs. Kenya Commercial Bank Limited & 2 others
- Owners of the Motor Vessel 'Lillian S' vs. Caltex Oil (Kenya) Ltd
- Co-operative Bank of Kenya Limited vs. Patrick Kang'ethe Njuguna & 5 others
Cited Statute
- Environment and Land Court Act, Cap 8D, Laws of Kenya
- Land Act, Cap 280, Laws of Kenya
- Banking Act, Cap 488, Laws of Kenya
- Land Registration Act, Cap 300, Laws of Kenya
Judge Name
Judge W M Musyoka
Passage Text
- Disputes on whether a statutory power of sale should be exercised would not be a commercial matter... The High Court has no jurisdiction over such...
- The Land Act has identified the courts with jurisdiction to handle any such disputes and disagreements... The High Court has no jurisdiction over such, by dint of Articles 162(2) and 165(5) of the Constitution, and sections 2 and 150 of the Land Act.
- The suit herein is not by the lender, to recover its money, but by the borrowers, to save their charged land...