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ELCStruck OutNot stated in the judgment (Notice of Motion dated 10th February 2025)· [2025] KEELC 2932 (KLR)

Mbuki v Waweru & 3 others (Environment & Land Case E030 of 2025) [2025] KEELC 2932 (KLR)

Environment and Land Court
25 March 2025
JOJ. M. Onyango
1,420 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a landowner's fraud claim because disputes over enforcing a loan charge belong elsewhere, awarding the bank costs.

What this practically means

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Executive summary

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The Applicant moved the Environment and Land Court at Thika by Notice of Motion dated 10th February 2025 seeking injunctive relief to restrain an auction of land parcel Ruiru Kiu/Block 4/1817 scheduled for 26th March 2025 pursuant to a Notification of Sale issued on 20th January 2025 by the 3rd Respondent. The Applicant alleged that the 1st Respondent procured registration of the suit property through fraud and manifest illegality, then charged it to the 2nd Respondent, and filed a substantive suit challenging the validity of the title. Before determining the application, the court of its own motion directed the parties to address the question of its jurisdiction, given that the dispute seemingly pertained to a charge over the suit property. Considering submissions and authorities, the court held that jurisdiction must exist as a matter of law and cannot be conferred by acquiescence. Although the Applicant framed the dispute as a title dispute challenging a fraudulent instrument, the court found that adjudicating the claim would require examining why the property was charged and the 2nd Defendant's statutory power of sale. Relying on Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna, the court held that section 13 of the ELC Act and section 150 of the Land Act make no provision for enforcement of charges, so the ELC lacks jurisdiction over such disputes. The court found it lacked jurisdiction, struck out the suit, and awarded costs to the Respondent.

Key legal issues

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Whether the ELC has jurisdiction over a suit challenging the validity of a title that was charged, where enforcement of the charge and statutory power of sale are implicated

Holding

The court lacks jurisdiction; although framed as a title dispute, adjudicating it would require determining why the property was charged and the 2nd Defendant's right to exercise its statutory power of sale, which is beyond the ELC's mandate

Reasoning

The court examined the cause of action rather than the labels used by the plaintiff. Section 13 of the ELC Act and section 150 of the Land Act make no provision for enforcement of charges, and per Co-operative Bank v Kangethe Njuguna the ELC cannot entertain disputes over charges, mortgages, or statutory power of sale. Determining the alleged fraud would necessitate delving into the charge and the bank's power of sale, overstepping the court's mandate. Jurisdiction being absent, the suit was struck out with costs to the Respondent.

p. 4

Legal principles established

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  • The ELC's jurisdiction under section 13 of the ELC Act and section 150 of the Land Act does not extend to disputes concerning the enforcement of a charge or the statutory power of sale
  • Jurisdiction must exist as a matter of law; if absent, the court must down its tools

Court orders

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  1. 1.The suit is struck out for want of jurisdiction
  2. 2.Costs of the suit awarded to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2) and (3)
  • Constitution of KenyaArticles 42, 69 and 70
  • Environment and Land Court ActSection 13(1), (2)(a), (2)(d), (3)
  • Land ActSection 150

Cases cited (4)

  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others
    [2017] KECA 79 (KLR)
  • Bank of Africa Kenya Limited & Another v TSS Investment Limited & 2 Others
    [2024] KECA 410
  • Joel Kyatha Mbaluka & Associates Advocates v Daniel Ochieng Ogola
    [2019] eKLR
  • Karisa Chengo & 2 others v Republic
    [2015] KECA 756 (KLR)
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Sections 13 and 150 of the Environment and Land Court Act and the Land Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mbuki v Waweru & 3 others (Environment & Land Case E030 of 2025) [2025] KEELC 2932 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 10th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2932/eng@2025-03-25

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