African Budget & Executive Homes Company Limited & another v Middle East Bank Kenya Ltd & another (Environment & Land Case E010 of 2023) [2025] KEELC 4513 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a borrowers' suit against their bank because disputes over loan charges and auctions belong in the High Court, not the ELC.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction over a dispute centred on a charge, statutory power of sale and loan accounts
The ELC has no jurisdiction; the dispute is about money owed and realization of security, not environment or use and occupation of, or title to, land
The court examined the plaint and found the dispute revolves around legal charges registered over land securing credit facilities and whether proper statutory notices were issued. Relying on Cooperative Bank v Patrick Kangethe Njuguna, a charge creates a security relationship having nothing to do with land use. There is no dispute over ownership or validity of titles. Bank of Africa v TSS Investments confirms suits to forestall statutory power of sale fall outside Article 162(2)(b).
Whether the jurisdictional issue, raised late and duplicating a prior preliminary objection, was properly before the court
Yes; jurisdiction may be raised at any stage and courts may act suo motu; prior acquiescence does not confer jurisdiction
The court relied on Lemita Ole Lemein v Attorney General that jurisdiction is omnipresent and need not be raised by parties, and on In the Matter of the Interim Independent Electoral Commission quoting Owners of Motor Vessel Lillian S that jurisdiction should be raised at the earliest opportunity but the court must decide it on the material before it. Consent or inaction cannot confer jurisdiction.
Whether the suit should be dismissed, struck out, or transferred
The suit, not having been heard on its merits, could only be struck out
Following Lillian S v Caltex Oil, a court without jurisdiction has no power to make one more step and cannot entertain proceedings pending other evidence. The court therefore held it could make no further substantive or procedural order and that striking out was the only recourse available for a suit unheard on the merits.
Legal principles established
#- Charging land as security for a debt does not constitute use and occupation of, or title to, land within Article 162(2)(b); disputes over charges, statutory power of sale and accounts fall outside ELC jurisdiction
- Jurisdiction can be raised at any stage of proceedings and a court may address it suo motu
- A court without jurisdiction must down its tools immediately and cannot make any further order
Court orders
#- 1.The plaint dated 11th August 2023 is struck out
- 2.Each party shall bear its own costs of the suit
- 3.All interim orders that had been granted and extended from time to time are vacated
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, in determination of a Notice of Motion under Article 165(3) of the Constitution and Order 2 Rule 15 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "African Budget & Executive Homes Company Limited & another v Middle East Bank Kenya Ltd & another (Environment & Land Case E010 of 2023) [2025] KEELC 4513 (KLR)", Case Analysis (2025). null (not stated in judgment; suit filed 11th August 2023, ELC Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4513/eng@2025-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.