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ELCStruck OutNot stated in the judgment (Plaint dated 24.11.2024; Notice of motion dated 27.11.2024)· [2025] KEELC 4335 (KLR)

Makwana & 2 others & another v M’Oriental Bank Limited & another (Environment & Land Case E103 of 2024) [2025] KEELC 4335 (KLR)

Environment and Land Court of Kenya
5 June 2025
YAY. M. Angima
2,245 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out borrowers' suit to stop a bank selling their charged land, confirming such disputes belong in the High Court.

What this practically means

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Executive summary

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The plaintiffs sued, and by notice of motion sought a temporary injunction, to restrain the 1st defendant bank from selling Title No. Mombasa/Block XVIII/807 over which they had secured a loan facility of approximately Kshs.98 million obtained in August 2017. They contended they had not defaulted, that the bank had unlawfully inflated the loan and levied unconscionable interest, and that no 90-day statutory notice, 40-day notification of sale or forced sale valuation preceded the advertisement of the property on 20.11.2024. The 1st defendant, through its Mombasa Branch Manager, denied this, exhibiting a 90-day notice dated 30.04.2024 served by registered post, a subsequent 40-day notification of sale, and a valuation report by Coral Property Consultants. The court, of its own motion, directed parties to address jurisdiction. Applying Cooperative Bank v Kangethe Njuguna and Diamond Trust Bank v FHH, it held that a charge is not a 'use' of land and that a claim to restrain exercise of statutory power of sale is a commercial matter for the High Court, outside Article 162(2)(b) and Section 13(1) of the ELC Act. Citing Owners of Motor Vessel 'Lilian S', the court downed its tools, declined to consider the injunction principles, struck out the notice of motion and the suit in its entirety, vacated interim orders, and made no order as to costs. Ruling delivered virtually at Mombasa on 5 June 2025 by Y. M. Angima, Judge.

Key legal issues

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01

Whether the ELC has jurisdiction over a claim to restrain a bank's statutory power of sale

Holding

The court has no jurisdiction; such a claim is a commercial matter for the High Court

Reasoning

Applying Cooperative Bank of Kenya Ltd v Patrick Kangethe Njuguna and Diamond Trust Bank Ltd v FHH, the court held that charging land does not constitute 'use' of land. The predominant issue was whether the bank was entitled to exercise its statutory power of sale under the charge, not a dispute about use, occupation or title to land under Article 162(2)(b) and Section 13(1) of the ELC Act.

p. 4
02

Whether the interim injunction could be considered

Holding

Not considered; a court without jurisdiction must down its tools

Reasoning

Having found it lacked jurisdiction, the court declined to assess the injunction principles (Giella-type prima facie case, irreparable harm, balance of convenience) since jurisdiction goes to the foundation of the court's power to act.

p. 5

Legal principles established

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  • A dispute by a chargor seeking to restrain a chargee from exercising statutory power of sale is a commercial matter for the High Court, not the ELC
  • A court without jurisdiction must down its tools and a suit filed in a court without jurisdiction is not transferable to the right forum

Court orders

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  1. 1.The plaintiffs' notice of motion dated 27.11.2024 is struck out.
  2. 2.The plaintiffs' suit is struck out in its entirety.
  3. 3.Any interim orders in place are vacated.
  4. 4.There shall be no order as to costs.

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 261(2)(b)
  • Environment and Land Court ActSection 13(1), including Section 13(2)(d)
  • Land ActSections 2 and 80

Cases cited (4)

  • Cooperative Bank of Kenya Ltd vs Patrick Kangethe Njuguna & 5 Others
    (2017) eKLR
  • Diamond Trust Bank Limited vs FHH
    Civil Appeal No. 18 of 2020 [2022] eKCA 769 KLR
  • P. J. Dave Flowers Limited v Limuru Hills Limited
    Malindi Civil Appeal No. 123 of 2019
  • Owners of Motor Vessel "Lilian S" vs Caltex Oil (Kenya) Ltd
    [1989] KLR 1
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya and Section 13(1) 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, "Makwana & 2 others & another v M’Oriental Bank Limited & another (Environment & Land Case E103 of 2024) [2025] KEELC 4335 (KLR)", Case Analysis (2025). Not stated in the judgment (Plaint dated 24.11.2024; Notice of motion dated 27.11.2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4335/eng@2025-06-05

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