Muguika & 2 others v Consolidated Bank of Kenya Limited & another (Environment and Land Appeal E011 of 2023) [2025] KEELC 1484 (KLR)
The bottom line
#The Environment and Land Court struck out a bank borrower's appeal because disputes about enforcing a charge over land belong in the High Court, not the ELC.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction over an appeal whose fulcrum is the enforcement of a Charge over land
The court lacks jurisdiction; the dispute is commercial in nature concerning charges, not use, occupation or title to land. The appeal should have been filed in the High Court.
Relying on Cooperative Bank v Patrick Kangethe Njuguna, the court held that charged land is not land use. The ELC's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act covers use, occupation and title to land. Since the appeal revolved around a Charge and an intended auction, it fell outside the ELC's jurisdiction and the appellants should have gone to the High Court.
Whether a preliminary objection is a proper mechanism to challenge jurisdiction
Yes - jurisdiction is a pure point of law suitable for a preliminary objection under the Mukhisa Biscuit definition.
The court adopted the classic Mukhisa Biscuit formulation that a preliminary objection raises a pure point of law on assumed pleaded facts. A challenge to jurisdiction qualifies, and per Kenya Ports Authority v Modern Holdings may be raised at any stage.
Legal principles established
#- Charging of land does not connote land use within the ELC's jurisdiction under Article 162(2)(b)
- Jurisdiction may be raised at any stage of proceedings, including on appeal
Court orders
#- 1.Appeal struck out with costs to the 1st Respondent
- On appeal from
- Chief Magistrate's Court, Nairobi
- CMCC No. E431 of 2023
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muguika & 2 others v Consolidated Bank of Kenya Limited & another (Environment and Land Appeal E011 of 2023) [2025] KEELC 1484 (KLR)", Case Analysis (2025). Nairobi CMCC No. E431 of 2023 (Appeal arising therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1484/eng@2025-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.