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ELCStruck OutNot stated in the judgment· [2025] KEELC 3046 (KLR)

Simiyu (Suing as an Administrator to the Estate of Jeremiah Ngokho Wamocho Deceased) v Spur Africa Limited & 2 others (Environment & Land Case E003 of 2024) [2025] KEELC 3046 (KLR)

Environment and Land Court
2 April 2025
ANA. NYUKURI
1,191 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land dispute because challenges to a charge over land belong in the High Court, not the ELC.

What this practically means

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Executive summary

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The 3rd defendant raised a preliminary objection dated 4th June 2024 seeking striking out of the plaintiff's suit on the ground that the Environment and Land Court lacks jurisdiction because the dispute concerns a charge over land, Kakamega/Nzoia/10/98, and is an abuse of process. The 2nd defendant supported the objection in submissions. The court framed a single issue: whether it has jurisdiction to hear and determine the suit. Relying on the Owners of Motor Vessel 'Lilian S' and Samuel Kamau Macharia, it reiterated that jurisdiction flows from the Constitution or statute. The court's jurisdiction under Article 162(2)(b) and section 13 of the Environment and Land Court Act covers environment and land disputes, but the Court of Appeal's decision in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna holds that matters concerning charges, mortgages and collection of dues are not incidental to land use and fall within the High Court's jurisdiction. The undisputed facts were that the deceased, whose estate the plaintiff administers, obtained a loan of Kshs. 8,300,000 from the 3rd defendant, secured by a charge over the suit property, and upon default the 3rd defendant exercised its statutory power of sale, selling to the 1st defendant, who sold to the 2nd defendant. Since the plaintiff's suit disputes the validity of that charge, the court held it lacked jurisdiction and struck out the suit with costs to the 2nd and 3rd defendants.

Key legal issues

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Whether the ELC has jurisdiction over a suit disputing the validity of a charge and the exercise of statutory power of sale

Holding

The ELC lacks jurisdiction; such disputes relate to charges, not land use, and fall within the High Court's jurisdiction.

Reasoning

Article 162(2)(b) and section 13 of the ELC Act confine the court to environment and land disputes, including contracts and instruments granting enforceable interests in land. However, the Court of Appeal in Co-operative Bank v Kangethe held that mortgages, charges and collection of dues are not incidental to land use. Since the plaintiff's suit disputes the validity of a charge and the resulting sale under statutory power of sale, the claim is outside the ELC's jurisdiction and must be struck out.

p. 3

Legal principles established

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  • Jurisdiction flows from the Constitution or statute or both, and a court cannot arrogate to itself jurisdiction it does not have
  • Disputes regarding charges fall outside the jurisdiction of the Environment and Land Court and belong to the High Court

Court orders

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  1. 1.The plaintiff's suit is struck out
  2. 2.Costs to the 2nd and 3rd defendants
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya as read with 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, "Simiyu (Suing as an Administrator to the Estate of Jeremiah Ngokho Wamocho Deceased) v Spur Africa Limited & 2 others (Environment & Land Case E003 of 2024) [2025] KEELC 3046 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3046/eng@2025-04-02

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