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ELCStruck OutELC Case dated 4/03/2024 (Kwale)· [2025] KEELC 905 (KLR)

Al-Ghaafiry (Suing as the Lawful Attorney of Mrs Bintali Kibamba) v Izwe Loans Kenya Ltd (Land Case E013 of 2021) [2025] KEELC 905 (KLR)

Environment and Land Court
27 February 2025
3,043 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a borrower's bid to stop a bank selling charged land, ruling loan disputes belong in the High Court.

What this practically means

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Executive summary

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The Plaintiff, acting as attorney of Binti Kibamba, filed a suit against the Defendant bank with a Notice of Motion seeking temporary injunctions restraining the Defendant from transferring, alienating, advertising for sale, selling or dealing in Plot No. KWALE/RAMISI PHASE II SCHEME/1079, pending determination of the suit. The suit arose from a loan facility of Kshs. 1,950,000 secured by a charge over the suit property, with the Plaintiff alleging the property was undervalued and seeking a permanent injunction and a declaration that the valuation report by Zenith (Management) Valuers Limited was a nullity. The Defendant filed a preliminary objection contending that the court lacked jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, the dispute being a commercial matter for the High Court, and that it could not be salvaged by transfer, citing Albert Chaurembo Mumba. The court, guided by Mukisa Biscuits, found the objection properly raised as a point of law. Relying on Bank of Africa v TSS Investment and Co-operative Bank v Kangethe Njuguna, it held that the ELC's jurisdiction covers use and occupation of and title to land, not mortgages or charges; the claim was solely a commercial dispute over loan repayment and enforcement of statutory power of sale. Following Albert Chaurembo Mumba and Equity Bank v Bruce Mutie Mutuku, the court held it had no power to transfer the suit. The preliminary objection was upheld, the suit struck out, and no orders as to costs were made.

Key legal issues

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01

Whether the preliminary objection was properly raised as a pure point of law

Holding

It was properly raised since, if upheld, the suit would be disposed of without ascertaining facts.

Reasoning

Applying Mukisa Biscuits, the court held that the objection on jurisdiction was a point of law arising from the pleadings which, if successful, would dispose of the suit preliminarily without the need to ascertain facts.

p. 4
02

Whether the ELC has jurisdiction over a claim to restrain exercise of statutory power of sale over charged land

Holding

No. The claim is a commercial dispute over loan amounts and enforcement of a charge, outside the ELC's jurisdiction.

Reasoning

Relying on Bank of Africa Kenya Ltd v TSS Investment Ltd and Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, the court held that the ELC has jurisdiction over disputes connected to use of land and contracts incidental to use, which do not include mortgages and charges. The user of the land here was only to secure a loan; the prayers sought (permanent injunction against sale and declaration on the valuation) were derivative of the loan and charge arrangements.

p. 6
03

Whether the suit could be salvaged by transfer to the High Court

Holding

No. A court lacking jurisdiction has no power to transfer; the suit is dead on arrival.

Reasoning

Following Albert Chaurembo Mumba and Equity Bank v Bruce Mutie Mutuku, the court held that transfer is unavailable where the court lacks jurisdiction ab initio; there is nothing capable of transfer.

p. 6

Legal principles established

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  • The ELC's jurisdiction is limited to disputes relating to environment and the use and occupation of, and title to land; claims over enforcement of statutory power of sale under a charge, and related valuation disputes, are commercial disputes for the High Court.
  • A court without jurisdiction cannot transfer a suit to a court with jurisdiction.

Court orders

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  1. 1.Preliminary objection sustained
  2. 2.Suit struck out for lack of jurisdiction
  3. 3.No orders as to costs
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act

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, "Al-Ghaafiry (Suing as the Lawful Attorney of Mrs Bintali Kibamba) v Izwe Loans Kenya Ltd (Land Case E013 of 2021) [2025] KEELC 905 (KLR)", Case Analysis (2025). ELC Case dated 4/03/2024 (Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/905/eng@2025-02-27

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