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ELCStruck OutNot stated in the judgment· [2025] KEELC 5194 (KLR)

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)

Environment and Land Court
10 July 2025
1,900 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Defendants raised a preliminary objection dated 23rd April 2025 contending that the Environment and Land Court lacked jurisdiction over the Plaintiff's suit challenging the sale by public auction of L.R. Ngong/Ngong/33632 in exercise of the 1st Defendant bank's statutory power of sale, the Plaintiff having obtained a Kshs. 10,000,000/- facility secured by the suit property. The Interested Party, the auction purchaser, supported the objection. The Plaintiff argued that the suit sought to restrain transfer of the title after the auction, that it had been in court since 2021 without the jurisdictional issue being raised, and that the authorities cited were distinguishable because in Co-operative Bank v Kangethe the sale had not taken place. The court framed a single issue: whether it had jurisdiction. It held that jurisdiction cannot be conferred by consent or waiver and may be raised at any stage. Examining the amended plaint, the court found the gravamen of the suit to be alleged mismanagement of the loan account and the realisation of security - matters of mortgages, charges and contract falling within the High Court's civil jurisdiction and outside the ELC's mandate under Article 162(2)(b) and section 13 of the ELC Act. The court also noted the Plaintiff had filed a fresh suit over the same subject matter as a pending Kajiado High Court case, amounting to forum shopping. Following the Supreme Court's decision in Albert Chaurembo Mumba and Kagenyi v Musiramo, the court held a suit filed without jurisdiction cannot be transferred. The preliminary objection was upheld and the suit struck out with costs to the Defendants and the Interested Party.

Key legal issues

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01

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

Holding

The ELC lacks jurisdiction; the dispute is a commercial/banking matter concerning mortgages and charges falling within the High Court's civil jurisdiction

Reasoning

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.

p. 4
02

Whether the suit could be salvaged by transfer to the High Court

Holding

No - a suit filed in a court without jurisdiction cannot be transferred; it must be struck out

Reasoning

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.

p. 4
03

Whether the Defendants waived the right to raise jurisdiction by not pleading it earlier

Holding

No - jurisdiction may be raised at any stage, including on appeal

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Defendants' preliminary objection on jurisdiction is upheld
  2. 2.The Plaintiff's suit is struck out
  3. 3.Costs of the suit awarded to the Defendants and the Interested Party

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13

Cases cited (6)

  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others
    (2017) eKLR
  • Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others
    (2019) eKLR
  • Bank of Africa Limited v TSS Invest Limited & 2 others
    (2024) eKLR
  • Miriam Njoki v Land Registrar
    (2020) eKLR
  • Lemlen v Muketi & 2 others
    (2023) eKLR
  • Kagenyi v Musiramo & another
    (1968) E.A.L.R 43
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

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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, "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.