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ELCPartially AllowedOriginating Summons dated 21/1/25 (number not stated in judgment)· [2025] KEELC 5925 (KLR)

Alchanave Limited v Kimani (Enviromental and Land Originating Summons E002 of 2025) [2025] KEELC 5925 (KLR)

Environment and Land Court
30 June 2025
JKJ. G. KEMEI
3,928 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed it can hear eviction claims arising from bank auctions, but refused to evict the occupant before a full hearing.

What this practically means

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Executive summary

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The plaintiff company purchased the suit property, Nairobi/Block 1481/1609 Stone House Hostel on Olpi Silanga Road, Karen, at a public auction conducted on 12/3/24 by Garam Investments Auctioneers on Equity Bank's instructions as chargee, and obtained a transfer by chargee on 28/5/24 and registration in 2024. The defendant, the former chargor, refused to vacate and continued collecting rent. By a notice of motion dated 21/1/25 in an Originating Summons, the plaintiff sought preservation orders, an account of rental income, mandatory eviction, and bailiff/police-assisted possession. The defendant opposed through a preliminary objection dated 10/2/25, contending the court lacked jurisdiction because the dispute concerned enforcement of financial securities (citing Bank of Africa v TSS Investment), that the suit was res judicata, sub judice and an abuse of process given pending High Court proceedings challenging the auction, and that the plaintiff lacked locus standi since its title was allegedly procured in violation of section 97 of the Land Act and court orders. The court framed three issues and dismissed the preliminary objection: jurisdiction under Article 162(2) and Section 13 of the ELC Act attaches because the core claim is eviction from land; the res judicata and locus arguments required probing facts and thus were not pure points of law, and the plaintiff was not a party to the High Court suits. On the motion, eviction was refused as premature at the interlocutory stage, but preservation (prayer 4) and an order for accounts of rent (prayer 5) were granted. Each party was ordered to bear its own costs. The ruling was corrected under sections 99 and 100 of the Civil Procedure Act on 6/8/2025.

Key legal issues

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01

Whether the preliminary objection on jurisdiction, res judicata, sub judice and locus standi was a pure point of law

Holding

The objection failed; it required ascertaining facts, and the plaintiff was not shown to be a party to the High Court suits relied on

Reasoning

The court held its jurisdiction flows from Article 162(2) and Section 13 of the ELC Act, and since the core claim is eviction of an occupier from land, jurisdiction lies. The res judicata/sub judice objections required probing evidence, and the plaintiff was not a party to the High Court suits. The locus question was also one of fact, ousting the objection from being a pure point of law.

p. 6
02

Whether eviction/vacant possession orders should issue at the interlocutory stage

Holding

Refused as premature; only preservation (prayer 4) and accounts (prayer 5) granted pending hearing

Reasoning

Although it was not disputed the defendant remained in occupation after the auction, final relief of eviction could not be granted before the parties were heard. The court invoked the purpose of temporary injunctions under Order 40 Rule 1 to preserve the property, and found no prejudice in ordering accounts of rental income pending determination.

p. 7

Legal principles established

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  • Issues of res judicata, duplicity of suits and locus standi founded on disputed facts cannot be raised as preliminary objections because they require probing of evidence
  • An ELC claim principally for eviction of a person in occupation of land falls within the court's jurisdiction under Article 162(2) and Section 13 of the ELC Act even where the dispute's background involves a charge and public auction

Court orders

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  1. 1.The Preliminary objection is unmerited. It is dismissed
  2. 2.The application dated the 21/1/25 is allowed partially in terms of prayer No 4 & 5 of the application
  3. 3.Each party to meet their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 40
  • Environment and Land Court ActSection 13
  • Land ActSections 97, 99, 99(2), 99(4), 152, 152 A, 152 E
  • Land Registration ActSections 25, 26
  • Civil Procedure ActSections 6, 8, 99, 100
  • Civil Procedure Rules, 2010Order 40 Rule 1
  • Auctioneers RulesRule 11(b)(x)

Cases cited (8)

  • Bank of Africa Kenya Limited & 1 Other v TSS Investment Limited & 2 Others
    Civil Appeal No. E055 of 2022
  • Mukisa Biscuit Manufacturing Co Limited
  • Sunrise Security Services Limited & 2 others Vs National Bank of Kenya Limited & Anor
    (2018) eKLR
  • Etrade Limited & Anor Vs Thrift Estates Limited & 2 others
    (2019) eKLR
  • Joyce Wairimu Karanja & James Mburu Ngure & 3 others
    (2028) eKLR
  • Margaret Karwirwa Mwongera Vs Francis Kofi
    (2019) eKLR
  • The Owners of Motor Vessels Lilian "S" Vs Caltex Oil Kenya Ltd
    (1989) KLR
  • Henry Wanyama Khaemba –vs- Standard Chartered Bank Ltd & Another
    (2014) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution read together with Section 13 of the ELC 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, "Alchanave Limited v Kimani (Enviromental and Land Originating Summons E002 of 2025) [2025] KEELC 5925 (KLR)", Case Analysis (2025). Originating Summons dated 21/1/25 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5925/eng@2025-06-30

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