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ELCOtherNotice of Motion dated 13th November 2024 (Busia ELC; suit number not stated in the judgment)· [2025] KEELC 1355 (KLR)

Oduory & another v Ncba Bank Kenya Ltd & another (Environment & Land Case E030 of 2024) [2025] KEELC 1355 (KLR)

Environment and Land Court
20 March 2025
3,423 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that disputes with a bank mostly about loan accounts belong in the High Court, not the Environment and Land Court.

What this practically means

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Executive summary

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The Applicants, borrowers who charged land parcel Bukhayo/Mundika/11942 to secure a credit facility from NCBA Bank Kenya Ltd, moved the Environment and Land Court at Busia by Notice of Motion dated 13th November 2024 seeking an injunction against sale or alienation of the property, suspension of further loan deductions, and an order compelling the bank to render accounts. Their earlier suit in the Chief Magistrate's Court had been struck out for want of pecuniary jurisdiction, the subject matter being valued at about Kshs.55,000,000. The Respondents filed a Notice of Preliminary Objection contending that the dispute was essentially one of accounts between banker and borrower, outside the ELC's jurisdiction under Article 162(2)(b) of the Constitution, Section 13 of the ELC Act and Section 150 of the Land Act. Justice Boaz N. Olao, applying the dominant-issue test from Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna as approved in Mbaluka, held that although the Court could entertain the injunction limb, the predominant issue - rendering of accounts - was for the High Court, and distinguished Lydia Nyambura Mbugua. Rather than dismissing the suit, the Court exercised its inherent power, borrowing from Dominic v County Government of Narok, to defer where jurisdiction is concurrent. Prayer 3 of the Motion was spent, the property having already been offered for auction on 29th October 2024. The Court transferred the suit to the High Court for mention before Musyoka J on 14th May 2025 and made no orders as to costs.

Key legal issues

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01

Jurisdiction of the ELC over a banker-borrower dispute centred on accounts

Holding

The predominant issue is the rendering of accounts, which is beyond the ELC's jurisdiction under Section 13(2) of the ELC Act, even though the injunction limb falls within it

Reasoning

Applying Co-operative Bank of Kenya v Patrick Kangethe Njuguna and Mbaluka, the court held that where the cause of action is the amounts due under a charge rather than the charge itself or title to land, jurisdiction lies with the High Court. The injunction prayer is founded on the accounts dispute, making accounts the dominant issue.

p. 5
02

Whether to dismiss or transfer where both limbs engage concurrent jurisdiction

Holding

Dismissal would be drastic since one limb is within jurisdiction; transfer to the High Court serves the interest of justice

Reasoning

The court found concurrent jurisdiction: it could grant the permanent injunction but not determine accounts, the predominant issue. Borrowing from Dominic & 3 Others v County Government of Narok, it exercised its inherent power to defer to the High Court rather than down its tools entirely.

p. 6
03

Whether prayer 3 of the Motion was still available

Holding

It was spent because the property had already been offered for auction on 29th October 2024 before the Motion was placed before the court

Reasoning

Paragraph 7 of the supporting affidavit showed the property was offered for sale by public auction on 29th October 2024, and the court had on 14th November 2024 declined ex-parte interim orders, rendering the interim injunction prayer moot.

p. 7

Legal principles established

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  • In determining whether the ELC has jurisdiction, the consideration must be the dominant issue in the dispute and whether it relates to environment and land
  • A dispute over accounts due under a charge is not within the jurisdiction of the Environment and Land Court
  • Where courts have concurrent jurisdiction, a court may decline to exercise the jurisdiction it has and defer to the court best placed on the predominant subject matter

Court orders

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  1. 1.This suit be and is hereby transferred to the High Court for mention before Hon. Musyoka J on 14th May 2025 for further direction as to hearing
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 53 Rule 3
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 165(5)
  • Environment and Land Court ActSection 13
  • Land ActSection 150
  • Land ActSection 97(2)
  • Land Registration ActSection 101
  • Auctioneers RulesRule 15

Cases cited (8)

  • Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd
    1969 E.A 696
  • Owners Of The Motor Vessel "Lilian S" v Caltex Oil (Kenya) Limited
    1989 KLR 1
  • Lydia Nyambura Mbugua v Diamond Trust Bank Ltd & Another
    2018 eKLR
  • Suzanne Achieng Butler & 4 Others v Redhill Heights Investments Ltd & Another
    2016 eKLR
  • Co-operative Bank Of Kenya Ltd v Patrick Kangethe Njuguna & Others
    C.A. Civil Appeal No 83 of 2016 [2017] eKLR
  • Bank Of Kenya Limited v John Ndungu Gachara
    2022 eKLR
  • Joel Kyatha Mbaluka T/a Mbaluka Associates Advocates v Daniel Ochieng Ogola t/a Ogola Okello & Co. Advocates
    C.A. Civil Appeal No 250 of 2017 [2019] eKLR
  • Dominic & 3 Others v County Government Of Narok & Another
    Constitutional Petition No E002 Of 2023 [2023 KEHC 17908 KLR]
Jurisdiction invoked
Article 162(2)(b) of the Constitution 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, "Oduory & another v Ncba Bank Kenya Ltd & another (Environment & Land Case E030 of 2024) [2025] KEELC 1355 (KLR)", Case Analysis (2025). Notice of Motion dated 13th November 2024 (Busia ELC; suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1355/eng@2025-03-20

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