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ELCStruck OutNot stated in the judgment (Notice of Motion dated 27th June 2024)· [2025] KEELC 3317 (KLR)

Marite v Equity Bank Limited & another (Environment and Land Miscellaneous Case E007 of 2024) (Environment and Land) [2025] KEELC 3317 (KLR)

Environment and Land Court
24 April 2025
MOM.C. Oundo
2,525 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner trying to stop his property's auction lost everything because he filed in the wrong court.

What this practically means

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Executive summary

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The Applicant, Maxwell Kahuho Marite, moved the Environment and Land Court at Naivasha by Notice of Motion dated 27th June 2024 seeking an interim injunction restraining the Respondents from disposing of Title No Naivasha/Mwichiringiri Block 5/160, and an order compelling the 1st and 2nd Respondents to carry out a fresh valuation before auction. He alleged that the chargee sought to auction the property using a stale 2021 valuation of Kshs 38,000,000 despite a later valuation of Kshs 25,000,000, and that the bank had irregularly withdrawn funds from a separate account, breaching a consent judgment of 24th June 2021 adopting a loan restructuring agreement. The 1st Respondent (Equity Bank) contended the Applicant persistently defaulted, that a fresh valuation had been done on 17th July 2024 rendering the valuation prayer spent, and that the suit was an abuse of court process. The 2nd Respondent (auctioneer) said it acted merely as a seller. The court, applying Co-operative Bank of Kenya v Patrick Kangethe Njuguna and Smith v Kenya Deposit Insurance Corporation, held that the dominant issue was the settlement of loan amounts under a banker-lender relationship involving a charge, a matter outside Article 162(2)(b) and Section 13 of the ELC Act and lying with the Commercial Division of the High Court. Accordingly, both the application and the suit were struck out with costs on 24th April 2025.

Key legal issues

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01

Jurisdiction of the ELC over charge/loan enforcement disputes

Holding

The ELC lacks jurisdiction where the dominant issue is settlement of loan amounts and realization of a charge; such matters belong to the High Court's civil/commercial jurisdiction

Reasoning

Relying on Co-operative Bank of Kenya v Patrick Kangethe Njuguna and Smith & another v Kenya Deposit Insurance Corporation, the court held that a charge creates rights limited to realization of security, unrelated to the 'use' of land. Since the dominant issue was recovery of amounts owing under a banker-lender contract, the dispute fell outside Article 162(2)(b) and Section 13 of the ELC Act.

p. 5
02

Fresh valuation of charged property before auction

Holding

The valuation prayer was spent as the 1st Respondent had conducted a recent valuation on 17th July 2024

Reasoning

The 1st Respondent deponed that a valuation of the suit property had been completed on 17th July 2024, rendering the Applicant's prayer for a fresh valuation moot. In any event the suit was struck out for want of jurisdiction, so no valuation order issued.

p. 3

Legal principles established

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  • Where the predominant issue in a suit involves mortgages, charges, collection of dues and rents, jurisdiction lies with the High Court (Commercial Division), not the ELC

Court orders

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  1. 1.The application and the suit struck out with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1 and Rule 4(1)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Environment and Land Court ActSection 13(1) & (2)
  • Constitution of KenyaArticle 162(2)(b)
  • Land ActSections 2 and 80 (as quoted in Co-operative Bank case)
  • Auctioneers RulesRule 11(b)(x) and Rule 10 (as invoked by Applicant)

Cases cited (3)

  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others
    [2017] eKLR
  • Smith & another v Kenya Deposit Insurance Corporation (As receiver of Chase Bank Limited) & another
    [2025] KECA 294 (KLR)
  • MCCOMSU/E771/2021 - Maxwel Kahuho Marite v Equity Bank (Kenya) Limited
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13(1) & (2) 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, "Marite v Equity Bank Limited & another (Environment and Land Miscellaneous Case E007 of 2024)  (Environment and Land) [2025] KEELC 3317 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 27th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3317/eng@2025-04-24

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