Mturi & another v Diamond Trust Bank Kenya Limited (Environment & Land Case E54 of 2023) [2024] KEELC 6167 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a suit trying to stop a bank auction, confirming property-charge disputes belong in the High Court.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction over a suit challenging the exercise of a chargee's statutory power of sale for want of statutory notice
The ELC lacks jurisdiction; the predominant issue is a charge dispute falling within the High Court's civil jurisdiction, following Co-operative Bank of Kenya Ltd v Patrick Kang'ethe Njuguna
The Court of Appeal in Kang'ethe held that a charge creates an interest in land for realization of security, which is a disposition, not land use. Contracts under Section 13 of the ELC Act must be incidental to land use and exclude mortgages and charges. The plaintiffs' claim of non-service of the 90-day statutory notice and the request for accounts concerned the charge and debt, not land use, so the High Court is the proper forum.
Whether the suit was an abuse of court process given prior litigation in Mombasa HCCC No. 97 of 2015
The suit was a reincarnation of the earlier dismissed suit filed through the side door
The same parties and issues—debt and statutory notice of sale—had been litigated in Mombasa HCCC No. 97 of 2015 between the borrower and the Bank, which was dismissed for want of prosecution after unsuccessful injunction attempts. Re-litigating the same issues by the guarantors amounted to an abuse of the court process.
Legal principles established
#- Jurisdiction must be addressed first; a court without jurisdiction must stop proceedings
- Disputes whose predominant issue is charges, mortgages, collection of dues and rents fall within the civil jurisdiction of the High Court, not the ELC
Court orders
#- 1.The application dated 18th December 2023 is dismissed
- 2.The entire suit is struck out with costs
- 3.The application dated 17th January 2024 succeeds on the jurisdiction question
- 4.Costs to the Defendants
- Jurisdiction invoked
- Article 162(2) of the Constitution; Sections 13 and 150 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mhasibu Bustani Management Company v Mhasibu Housing Company Limited (Environment and Land Case E058 of 2025) [2026] KEELC 192 (KLR)[2026] KEELC 192 (KLR)26 Jan 2026
Cite this brief
#Cite this brief
Caselaw, "Mturi & another v Diamond Trust Bank Kenya Limited (Environment & Land Case E54 of 2023) [2024] KEELC 6167 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 18th December 2023; Defendant's application dated 17th January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6167/eng@2024-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.