Gestered Professional Services v KCB Kenya Limited & another (Environment & Land Case E014 of 2024) [2025] KEELC 1468 (KLR)

Relying on the binding Court of Appeal decision in Co-operative Bank of Kenya v Patrick Kangethe Njuguna, the court held that the cause of action was not the charge instrument but the amounts due and owing thereunder. The plaintiff's own pleading showed the core dispute was the correct sum payable to redeem the charged property. Though the court agreed with Munyao Sila J that the Co-operative Bank decision was not universally ousting ELC jurisdiction, it was bound by it and could not dissent. The dominant issue being accounts, the High Court has jurisdiction.

Counsel for the plaintiff argued that Munyao Sila J dissented from the Court of Appeal in Co-operative Bank v Kangethe Njuguna. The court rejected this, reasoning that a subordinate court judge could not dissent from a decision of a superior court. In Lydia Nyambura Mbugua the substantive remedies sought (nullity of a sale and injunction) were matters within the ELC's preserve, and the issue of accounts did not arise; the facts were therefore distinguishable from the present case.

While accepting that a suit filed in a court without jurisdiction is a nullity and cannot be transferred (Equity Bank v Bruce Mutie Mutuku), the court found this suit was not such a case: the ELC could grant the injunction but not the accounts. This is a case of concurrent jurisdiction where the predominant issue lies with the High Court. Persuaded by F. Gikonyo J in Dominic v County Government of Narok, the court exercised its discretion to defer to the High Court in the interests of justice rather than dismiss the suit.