Son Hardware Limited v Development Bank of Kenya Limited & another; Arumba Limited (Interested Party) (Environment and Land Case 10 of 2021) [2025] KEELC 5194 (KLR)
The bottom line
#A Kenyan land court struck out a challenge to a bank's auction sale, ruling that disputes over loan mismanagement belong in the High Court, not the Environment and Land Court.
What this practically means
#Executive summary
#Key legal issues
#Whether the Environment and Land Court has jurisdiction over a suit whose predominant grievance is the mismanagement of a loan account and the exercise of a statutory power of sale
The ELC lacks jurisdiction; the dispute is a commercial/banking matter concerning mortgages and charges falling within the High Court's civil jurisdiction
The court examined the plaint and found the gravamen of the suit was the alleged mismanagement of the Plaintiff's loan account by the bank leading to realisation of the security. Relying on the Co-operative Bank v Kangethe test, ELC jurisdiction over contracts exists only where incidental to the use of land, and excludes mortgages, charges and collection of dues. A court cannot acquire jurisdiction by consent or waiver, and the objection may be raised at any stage.
Whether the suit could be salvaged by transfer to the High Court
No - a suit filed in a court without jurisdiction cannot be transferred; it must be struck out
Following the Supreme Court's decision in Albert Chaurembo Mumba, which approved Kagenyi v Musiramo, an order of transfer cannot be made where the suit was not brought in the first instance to a court with jurisdiction to try it. The court was therefore left with no option but to strike out the suit.
Whether the Defendants waived the right to raise jurisdiction by not pleading it earlier
No - jurisdiction may be raised at any stage, including on appeal
The Plaintiff argued that the Defendants, represented by the same law firm throughout since 2021, had not raised jurisdiction until late and had not pleaded it in the defence. The court rejected this, holding that jurisdiction cannot be conferred by consent or waiver and the point may properly be taken at any stage of the proceedings.
Legal principles established
#- Jurisdiction cannot be conferred by consent or waiver and may be raised at any stage of proceedings
- ELC jurisdiction over contracts is limited to disputes incidental to the use of land and excludes mortgages, charges, collection of dues and rents
- A suit filed in a court without jurisdiction cannot be transferred to another court; it must be struck out
Court orders
#- 1.The Defendants' preliminary objection on jurisdiction is upheld
- 2.The Plaintiff's suit is struck out
- 3.Costs of the suit awarded to the Defendants and the Interested Party
- Jurisdiction invoked
- Environment and Land Court's specialised jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; court holds it lacks jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Son Hardware Limited v Development Bank of Kenya Limited & another; Arumba Limited (Interested Party) (Environment and Land Case 10 of 2021) [2025] KEELC 5194 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5194/eng@2025-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.