Cherogoe & another v Engen Kenya Limited & another (Environment & Land Case E011 of 2023) [2025] KEELC 671 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a suit blocking a land sale, confirming disputes over bank charges belong in the High Court.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction over a dispute concerning exercise of statutory power of sale over a charged property
The court lacks jurisdiction; the suit is substantially a commercial dispute over a loan and charge, which falls within the High Court's jurisdiction.
Relying on Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, the court held that a charge is a disposition of land, not a use of land, and that ELC jurisdiction over contracts under Section 13 of the ELC Act covers only contracts incidental to the use of land, not mortgages, charges, or collection of dues. The dominant issue in the plaint was the impending sale flowing from default on a loan, making it a commercial dispute for the High Court under Article 165(3).
Whether new issues raised in submissions (two title deeds, guarantor status, fraud) could be considered
No; such issues were not pleaded and were disregarded.
The court noted that a perusal of the pleadings showed the issues raised in the plaintiffs' submissions — existence of two title deeds, guarantor status of the 1st plaintiff and fraud — were not pleaded. Citing FMS v MAS and the ex parte Zapkass decision, the court held that submissions are not pleadings and new issues raised by way of submissions are best ignored.
Legal principles established
#- The Environment and Land Court's jurisdiction does not extend to mortgages, charges or collection of rent and/or dues; such disputes fall within the High Court's civil jurisdiction
- New issues cannot be raised in submissions; submissions are not pleadings
- Costs follow the event under Section 27 of the Civil Procedure Act
Court orders
#- 1.This suit is hereby struck out with costs
- 2.The Preliminary Objection having been upheld, it shall not be necessary to determine the application
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya; Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cherogoe & another v Engen Kenya Limited & another (Environment & Land Case E011 of 2023) [2025] KEELC 671 (KLR)", Case Analysis (2025). ELC Case No. E011 of 2023 [Kericho]. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/671/eng@2025-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.