Gilbert Wesonga Mugeni,Lawrence Ojiambo Mugeni & Consolata Mugeni (T/A Colagi Builders and Distributors) v ECO Bank Kenya Ltd & Emily Elizabeth Nabwire [2015] KEHC 6900 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 63 OF 2014.

1.  GILBERT WESONGA MUGENI

2.  LAWRENCE OJIAMBO MUGENI

3.  CONSOLATA MUGENI

(T/A Colagi Builders and Distributors) ….PLAINTIFFS/RESPONDENTS

VERSUS

ECO BANK  KENYA LTD…………………….......DEFENDANT/APPLICANT

AND

EMILY ELIZABETH  NABWIRE…………..............…..INTERESTED PARTY

R U L I N G.

The Applicant, ECO Bank Kenya Limited,  filed the application dated 30th May, 2014  through M/S. Ocharo Kebira & co. Advocates  for orders to ‘’ discharge, vary or set aside  the order of temporary injunction that was granted herein on the 2nd day of  April, 2014. ’’  The Applicant  as an alternative, prays that the order of temporary injunction be set aside and the application be heard  inter partes.  The  application  is premised on four grounds on the face of it  and is further supported by the affidavits of Dickson Lanogwa and Ocharo Kebira sworn on 2nd July, 2014  and a further affidavit by Dickson Lanogwa filed on 7th October, 2014  whose date of commissioning   is not indicated.

The application is opposed by Gilbert  Wesonga Mugeni and Lawrence Ojiambo Mugeni herein after  referred to  as 1st  and 2nd  Respondent through  the affidavit of Gilbert Wesonga Mugeni  sworn on 9th July, 2014 and 5th October, 2014.

Mr. Ocharo and Mr. Makokha  for the Applicant and Respondents respectively agreed on 16th October, 2014  to proceed with application dated 30th May, 2014 through written submissions. The Applicant filed their written  submission dated 23rd October, 2014 on the same  date while the Respondents filed  theirs  dated 4th November, 2014 on the 5th  November, 2014. The  matter was then mentioned on 6th November, 2014 and reserved for ruling  on 28th January, 2015.

In the process of preparing,  the  an issue that had not been raised by the parties kept on popping up.  This  is the issue  of the court  with jurisdiction  to hear and determine  the issues  herein.  This court must be satisfied  that  it has  jurisdiction  over the matter before making any determination  on the issues raised.

A perusal of the plaint dated 25th March, 2014 and the defence  dated 30th May, 2014 shows that the dispute  herein emanates from the Distributorship Financing  Facility arrangement  dated 15th November, 2010 between  the Respondents/Plaintiffs, on one part, and the Applicant/Defendant, on the other part. The Respondents  charged land parcel Bukhayo/Bugengi/3586 with  the Applicant to secure Kshs.6,000,000. This court’s jurisdiction  is to hear and determine  disputes relating to the environment and the use and occupation of and  title to land.  The pleadings  in this case do not disclose any dispute to the use, occupation of, and, or title to any parcel of land.  The pleadings raises a dispute over the status of accounts  relating to the Distributorship  Financing  Facility dated 15th November, 2010 under  which the Applicant  loaned the Respondents Kshs.6,000,000, and the latter offered land parcel Bukhayo/Bugengi/3586 as security. The superior courts have held that where a party has offered a suit  property as security for loan facilities that has  been availed, the property becomes a commodity  that could be sold off in accordance with the law in case of default in payment to recover the money lent and interest thereof.  See Kismani Holdings Limited & another –vs-  Fidelity  Bank Limited [2013] eKLR and Andrew  M. Wanjohi –vs- Equity  Building Society & Anor [2006] eKLR.

Having  formed the opinion  that the issues  raised  in the main suit  are commercial  in nature, and the application  dated 25th March, 2014 is based on the same  facts,  this court being an Environment and Land court under Article 162 (2)  (b)  of the Constitution must down its tools without pronouncing itself  on any of the  issues raised by the parties  in line with  the decision  of the Court of Appeal in the celebrated case  of Owners of the Motor Vessel ‘’Lilian’’  case  -vs- Caltex  Oil Kenya Ltd (1989)KLR, where it was held that;

‘’Jurisdiction is everything. Without it, a court has no power to make one step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. And a Court of Law downs  tools in respect of the  matter before it  the moment it holds the opinion  that it is without jurisdiction.’’

It therefore  follows that the orders  of 2nd April, 2014 should not be allowed to remain  in force and are vacated  forthwith. The parties  are directed to pursue their respective interests before the High Court, Busia where this suit is transferred to for hearing and determination.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 28TH DAY OF JANUARY, 2015.

IN THE PRESENCE OF;PRESENT   1ST PLAINTIFF

ABSENT    2ND PLAINTIFF

ABSENT    3RD PLAINTIFF

ABSENT        DEFENDANT

ABSENT     INTERESTED PARTY.

MR. MAKOKHA FOR PLAINTIFFS/RESPONDENT. AND INTERESTED PARTY

AND MR. OCHARO FOR DEFENDANT/APPLICANT.

JUDGE.