Chepchirchir Bomet Fraser v National Bank of Kenya [2016] KEHC 1383 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL SUIT 246 OF 2009

CONSOLIDATED WITH HCCC NO 209 OF 2012

CHEPCHIRCHIR BOMET FRASER.................................................. PLAINTIFF

VERSUS

NATIONAL BANK OF KENYA......................................................... DEFENDANT

RULING

1. High Court Civil Case No. 246 of 2009 filed on the 19th  August 2009. The plaintiff sued National Bank of Kenya and  sought prayers for a declaration  that the defendant (Bank) held no Legal charge  over   LR No.15333/3 and LR 153333/1 Rongai  upon grounds that the plaintiff discharged  the Loans and advances granted to the late K. Bomet deceased.

This position is reiterated in the Amended plaint filed on the 12th October 2009. The defendant in its Amended defence filed on the 2nd November 2009 denied that the loans were fully paid.  Looking at the cause of action, there is no dispute that  the matter  is purely a commercial matter involving a charger  and a chargee. The High Court is the forum which  the necessary jurisdiction to hear and determine the dispute in this case.

2.  In High Court Civil Case No. 209 of 2012   the plaintiff is Chepchirchir and Nancy Jeruto Bomet  against National Bank of Kenya and two others. I have  seen the plaint. The case filed in the Environment and Land Court. The cause  of action  as may be deduced from the claim concerns the same cause of action in respect of properties stated earlier in HCCC No.246 of 2009, which were then under threat of being sold by the defendant bank in exercise of its chargees power of sale arising from  failure to pay off the loan advanced to the plaintiffs as stated in HCCC No. 246 of 2009. Other parties however were enjoined in this case and their defence  was that  they were not parties to the contracts between the plaintiff and the Bank. In my view the cause of action in both suits concern the validity of the charge documents giving rise to the purported sale of the properties stated by the chargee.

3. There is no doubt therefore that the disputes in both case are purely commercial in nature.

The Environment and land Court Judge Hon. Lucy Waithaka in HCCC No. 209 in  2012, vide directions issued on the 4th June 2013 made a direction that  these two cases be consolidated and be heard by the High Court  which court  has  jurisdiction to hear and determine disputes of commercial and civil nature notwithstanding that orders issued by the High Court lead to sale of land and more so in recovery of loans advanced where the land  was offered as security and charged to secure the chargees  interests. I have no reason to depart from the above directions.

4. The two cases will therefore proceed for hearing before the High Court.  Parties have already agreed that  the lead file shall be HCCC No. 246 of 2009. They may proceed to take hearing dates in  the High court.

Dated, signed and delivered in co this 10th day of November 2016

JANET MULWA

JUDGE