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ELCStruck OutNot stated in judgment· [2024] KEELC 6282 (KLR)

Njoroge v Molyn Credit Limited & another (Environment and Land Appeal E018 of 2023) [2024] KEELC 6282 (KLR)

Environment and Land Court
16 September 2024
BEB M Eboso
1,096 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a landowner's appeal because disputes about a lender's power to sell charged land belong in the High Court, not the ELC.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Thika (B M Eboso, J) determines a preliminary objection dated 15/1/2024 in which the respondents urged that an appeal from a lower court be struck out for want of jurisdiction. The respondents contended that the suit giving rise to the appeal was a mortgage/charge dispute over which the ELC lacks jurisdiction. They relied on the Court of Appeal decision in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 Others and the Supreme Court decision in Albert Chaurembo Mumbo & Others v Maurice Munyao & 148 Others. The appellant neither filed submissions nor attended the hearing, service having been effected. Examining the plaint, the court noted the appellant had pleaded a loan of Kshs 2,200,000 secured by a charge over title Muguga/Kanyariri/712 and had sought to injunct the 1st respondent from exercising the chargee's statutory power of sale. Ownership was not in issue. The court held that the dominant issue was whether the chargee's statutory power of sale had crystallized, and following Co-operative Bank v Kangethe Njuguna, that such matters fall within the High Court's civil jurisdiction, since a charge is a disposition of land and not 'use' of land under Article 162(2). The preliminary objection was upheld, the appeal struck out, and the two appellants ordered to bear the costs of the appeal.

Key legal issues

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01

Whether the ELC has jurisdiction over an appeal whose substratum is a mortgage/charge dispute

Holding

It does not; the dominant issue in the trial suit was crystallization of the chargee's statutory power of sale, a matter for the High Court's civil jurisdiction

Reasoning

The plaint showed the appellant took a loan secured by a charge and sought to injunct the chargee's statutory power of sale. Ownership was not contested. Citing Co-operative Bank v Kangethe Njuguna, the court held that a charge is a disposition of land, not land use, and mortgage/charge disputes fall within the High Court's civil jurisdiction, not the ELC's jurisdiction under Section 13 of the ELC Act.

p. 2

Legal principles established

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  • Disputes over whether a chargee's statutory power of sale has crystallized fall outside the jurisdiction of the Environment and Land Court
  • A suit filed before a court without jurisdiction cannot be transferred to another court

Court orders

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  1. 1.The preliminary objection dated 15/1/2024 is upheld
  2. 2.The appeal is struck out
  3. 3.The two appellants shall bear costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2) & (3)
  • Land ActSections 2, 80
  • Environment and Land Court ActSection 13

Cases cited (2)

  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 Others
    [2017] eKLR
  • Albert Chaurembo Mumbo & Others v Maurice Munyao & 148 Others
    (2019) eKLR
On appeal from
Not stated (magistrates' court inferred from Record of Appeal; not printed)
Not stated
Jurisdiction invoked
Article 162(2) & (3) of the Constitution; Environment and Land Court Act, Section 13

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njoroge v Molyn Credit Limited & another (Environment and Land Appeal E018 of 2023) [2024] KEELC 6282 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6282/eng@2024-09-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.