John Hezra Onyango Wafula v National Bank of Kenya [2015] KEHC 3001 (KLR)

Republic OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 147 OF 2013 (FORMERLY HCC. 9 OF 2003.

JOHN  HEZRA ONYANGO  WAFULA……………………  PLAINTIFF.

VERSUS

NATIONAL BANK  OF KENYA & ANOTHER…………DEFENDANTS.

R U L I N G.

1. JOHN  HEZRA ONYANGO WAFULA,hereinafter referred to as the  applicant, filed the notice of motion under certificate of  urgency dated     13th  December, 2012 for five orders as shown below;

‘’    1. THAT,  the Application  herein be certified urgent and service of the same be dispensed with in the first instance.

2. THAT,  a temporary injunction  and thereafter a permanent injunction do issue restraining  the 1st Defendant from selling by way of Public auction through Garama Investments or by  any  other auctioneers or any other way of selling disposing of and/or  in any other way dealing with land parcel No.BUKHAYO/MUNDIKA/1378 pending  the hearing and final determination of this suit.

3. THAT, there  be stay  of execution  or attachment and sale of the Applicant’s  moveable  property pending the hearing and final determination  of this Application.

4. THAT, the Applicant’s  suit dismissed  on 12. 10. 2011  for want of attendance  be reinstated  and determined on merit.

5. THAT,  the costs of this Application  be provided for’’.

The first  two prayers  have already  been  dealt with  and this ruling is in respect  of prayers 3  to 5.  The application  is based on seven grounds set out on the face of the application and supported by the affidavit sworn on 13th December, 2012 by JOHN HEZRA  ONYANGO WAFULA, the Applicant.

Though Mr. Anwar Advocate  for the Respondent  in his submissions stated he was relying on a replying affidavit  sworn on 25th November, 2013, there is no such affidavit on record.  In any  case the court record shows that on 13th November, 2014, the Respondents had not filed any replying affidavit  and were  on that date granted  seven days  to file and serve their replying papers.

2. When the  application dated 13th December, 2012 was filed, the Deputy Registrar directed  on the same date that it be placed before   the Judge. The matter  was placed before  Muchelule, Judge on 14th December, 2012 by Gikonyo J,.  On  the 17th December, 2012 the parties counsel  appeared before  Gikonyo J, issued the following       orders;

‘’ This is a land matter that falls within the jurisdiction  of the Environment and Land court. Although  the matter had been concluded through  the dismissal order issued on 12th October, 2011, the  nature of the orders sought in the instant  application  are legally and essentially  matters  the High court  cannot issue. Technically  an order to set aside the dismissal herein could be issued by  the High Court  but practically once the matter resumes its original  status as a fresh suit, the High court  will then find itself without  jurisdiction.  This kind  of approach will not make any practical  since.  I therefore  direct that the file be transmitted to the Environment and land court,  Bungoma for disposal’’

On the  same date  counsel  appeared before the Environment  and Land Court  and Omolo J, granted temporary injunction  against  the1st Defendant  on condition that the Applicant  deposits    Kshs.250,000/=  within four days. The court directed that should the Applicant fail to comply with the condition, the temporary injunction  orders would remain  discharged.

3. In the process  of preparing  this ruling, the  court noted that the suit  the application seeks to reinstate  was commenced through the plaint   dated 1st April, 2003.  It is apparent from the plaint that the despite emanates from a loan facility  the Applicant got from the 1st Defendant  of Kshs.200,000/=  in 1989  on the security of his land      parcel Bukahyo/Mundika/1378(See paragraph 4 and 5 of the  plaint)  The Applicant  in the plaint seeks  to stop the intended sale of the charged property  through temporary and permanent  injunctions (See paragraphs 8, 11, 12 and the plaint)This court’s  jurisdiction is  set out in articles 162 (2) (b) of  the constitution  to hear and mdetermine disputes relating to ‘’ the environment  and the use and  occupation of and title to, land’’.The  legislative  then enacted the Environment  and Land Court Act No. 19 of  2011 to operationalize  the court  and Section 13 of the said Act expanded  on the jurisdiction  of the court. There is nothing in the pleadings filed in this case that would show  that it falls under the matters listed under Section 13 of the Environment  and Land Court Act and Article  162 (2) (b)  of the Constitution.  This court  has to be satisfied that it has jurisdiction to  deal with the matter before it can proceed  to pronounce  itself on the  issues  for determination.  Where  the court finds it has no jurisdiction,  it has to stop dealing with the matter and there would be no need to continue with the proceedings.  In the decision on the matter in the   Court of Appeal case of Owners of the Motor Vessel ‘’Lilian’’  case –vs- Caltex oil Kenya Ltd  (1989)KLR and this court’s decision  in Gilbert Wesonga Mugeni & 2 others –vs- Eco bank  Kenya Ltd & Another . Busia  ELC. No. 63 of 2014 in which this court held as     follows;

‘’  The Respondent s charged …..land 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 the 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……under which the Applicant loaned the Respondents  Kshs.6000,000/= and  the latter offered land …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….’’

As held in the foregoing case, this court is of the considered view that  the pleadings  herein discloses a dispute based entirely on a   commercial  transaction under which  the Applicant  charged his land with the 1st Respondent in 1989 for Kshs.200,000/=. There is nothing  to do with the ‘’environment and the use and occupation of and title to, land.’’ The court  is of the considered view  that had all the materials  that  were presented to  this court been brought to thecourt on the 17th December, 2012, the directions given by my brother, Gikonyo J,  would have been different.

4. Having formed the opinion  that the pleading herein relates to a Commercial  transaction rather than an environment and land dispute, it  follows that this court has no jurisdiction to pronounce itself on the application dated 13th December, 2012 as it cannot deal with the main suit in the vent the application was to be granted. The matter is therefore referred to the High Court to be placed before the Resident Judge for directions.

It is so ordered.

S. M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 13TH DAY OF MAY, 2015.

IN THE PRESENCE OF;

PLAINTIFF -  ABSENT.

1ST DEFENDANT  - ABSENT

2ND DEFENDANT – ABSENT.

JUDGE.