Al-Yelika Consultants Travel and Tours Ltd v Ncba Bank Kenya PLC & another (Environment and Land Case E280 of 2024) [2025] KEELC 5268 (KLR)
The bottom line
#A Kenyan landowner suing to stop a bank auction lost entirely because the case belonged in the High Court, not the Environment and Land Court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Preliminary Objection meets the threshold of a pure point of law
- 2.Whether the Environment and Land Court has jurisdiction over a suit principally challenging the exercise of a chargee's statutory power of sale
Key legal issues
#Whether the ELC has jurisdiction over a suit challenging a chargee's exercise of its statutory power of sale
No - the dominant issue is the lender's power of sale in realization of security, a commercial matter for the High Court
Applying the predominant purpose/dominant issue test from Butler, Lydia Nyambura Mbugua and the Co-operative Bank of Kenya decision, the Court found that a charge is a disposition, not a use of land. The plaint did not challenge the charge instrument but the notices, valuation and amounts due under the loan, which fall within the High Court's civil jurisdiction under the Court of Appeal's binding ruling.
What constitutes a valid preliminary objection
An objection to jurisdiction is a pure point of law capable of disposing of the suit
Relying on Mukisa Biscuits and Newbold P, the Court restated that a preliminary objection must be argued on the assumption that all facts pleaded by the other side are correct and cannot be raised where facts must be ascertained. An objection to jurisdiction squarely meets this threshold.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot succeed if any fact has to be ascertained
- Jurisdiction flows from the Constitution or legislation and cannot be assumed or conferred by consent
- In choice-of-forum disputes between the ELC and High Court, the dominant issue in the suit, not the purpose of the transaction, determines jurisdiction
- Charging land does not connote use of land within Article 162 of the Constitution; disputes over exercise of a statutory power of sale fall outside the ELC's jurisdiction
Court orders
#- 1.The Plaintiffs Notice of Motion dated 09/07/2024 is dismissed
- 2.The Plaintiffs entire suit borne in the Plaint dated 09/07/2024 is dismissed
- 3.The Plaintiff shall bear the costs of the Application as well as the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Relief refused
#Injunction and related reliefs sought in the Notice of Motion and Plaint
The Court lacked jurisdiction as the dominant issue was the chargee's exercise of its statutory power of sale, a commercial matter for the High Court
Costs
The Plaintiff shall bear the costs of the Application as well as the suit herein; costs follow the event
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.
If the litigant's predominant issue will touch on the use of land, or occupation of land, or a matter that afiects in one or another, title to land, then such issue would fall for determination before the ELC.
The mere acquisition or conferment of an interest in land does not amount to use of that land.
Consequently, the Plaint and the Notice of Motion filed herein, both dated 09/07/2024 are dismissed. As costs follow the event and the 1st Respondent has succeeded in its Preliminary Objection, the Plaintifi shall bear the costs of the Application as well as the suit herein.
Issues in the judgment
#Internal inconsistency in the date of the intended auction: the Supporting Affidavit refers to an auction on 9/07/2024 while the analysis refers to 9/08/2024
Confusing passage at paragraph 33 where it appears to be the Applicant's averment about the Respondents' failure to conduct valuation but reads as if it is the Respondents' averment
Case number of the suit is not disclosed anywhere in the judgment as provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Al-Yelika Consultants Travel and Tours Ltd v Ncba Bank Kenya PLC & another (Environment and Land Case E280 of 2024) [2025] KEELC 5268 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5268/eng@2025-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.