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ELCStruck OutMiscellaneous Application dated 3/5/2025 (arising from Meru CMCC E & L Case No. E190 of 2024)

Stanley Kathurima M’Twarugoji v Co-operative Bank of Kenya Ltd & Another

Environment and Land Court
29 September 2025
2,099 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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The Environment and Land Court struck out a borrower's application because loan and charge disputes belong in the High Court, not the ELC.

What this practically means

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Executive summary

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The applicant, Stanley Kathurima M’Twarugoji, moved the Environment and Land Court at Meru by notice of motion dated 3/5/2025 seeking an enlargement of time to lodge an appeal against the ruling of the Chief Magistrate's Court at Meru (Hon Atiang Mitullah) dated 18/2/2025, which had dismissed his injunction application in Meru CMCC E & L Case No. E190 of 2024 - a suit arising from an attempted auction of land parcel Ntima/Ntakira/5123 or 5133 to recover a loan allegedly borrowed from the 2nd respondent and secured by a charge over the land. The applicant claimed he never took the loan, that the loan and charge documents were forgeries, that his advocates never informed him of the ruling, and that he learnt of it only when a valuation notice was left on his land. The 2nd respondent opposed, contending the loan was disbursed, the charge registered, the applicant fully participated in the lower court proceedings, and the application was a delay tactic brought in bad faith. The court framed two issues: its jurisdiction and the extension-of-time criteria. Relying on Court of Appeal authority, notably Co-operative Bank v Kangethe Njuguna and Bank of Africa v TSS Investment, it held that disputes over mortgages and charges fall within the High Court's civil jurisdiction, not the ELC's, and that the dominant questions here concerned the validity of a charge. Citing Phoenix of E.A. Assurance v Thiga and Equity Bank v Mutie, it further held that a suit filed without jurisdiction is a nullity that cannot be transferred. The application was struck out with costs to the applicant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Environment and Land Court is seized of jurisdiction to dispose of the application
  2. 2.Whether the application meets the criteria for enlargement of time for lodging an appeal to this court

Key legal issues

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01

Jurisdiction of the ELC over the extension-of-time application

Holding

The ELC lacks jurisdiction because the dominant questions concern whether a loan was borrowed and whether the title was used as collateral - matters relating to a charge, which fall within the High Court's civil jurisdiction

Reasoning

The court applied Court of Appeal authority (Co-operative Bank v Kangethe Njuguna; Bank of Africa v TSS Investment) holding that ELC jurisdiction covers disputes connected to the 'use' of land, excluding mortgages and charges. Since the dominant questions here concern the validity of a charge, the application was filed in the wrong court and is a nullity ab initio.

p. 3
02

Whether the court could transfer the miscellaneous suit to the High Court suo motu

Holding

No - a suit filed without jurisdiction cannot be transferred; the only remedy is to withdraw it and file a compliant one in the competent court

Reasoning

Relying on Phoenix of E.A. Assurance v Thiga and Equity Bank v Mutie, the court held that transferring an incompetent suit would sanctify it, and that parties cannot by consent confer jurisdiction. The court therefore downed its tools per Owners of the Motor Vessel 'Lillian S'.

p. 3
03

Whether the extension-of-time criteria were met

Holding

Not determined, as the application failed at the threshold jurisdictional stage

Reasoning

The court framed two questions but disposed only of the first, striking out the application for want of jurisdiction before reaching the criteria for enlargement of time.

p. 4

Legal principles established

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  • Disputes relating to mortgages and charges do not fall within the jurisdiction of the Environment and Land Court but within the civil jurisdiction of the High Court
  • A suit filed in a court without jurisdiction is a nullity and cannot be transferred to a court with jurisdiction
  • An erroneous designation of a case in a magistrate court cannot confer appellate jurisdiction on the Environment and Land Court; appellate jurisdiction is derived from the dominant question in the dispute

Court orders

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  1. 1.The application dated 3/5/2025 is struck out on the ground of want of jurisdiction on the part of the Environment and Land Court
  2. 2.The applicant shall bear costs of the suit
  3. 3.The applicant is at liberty to file a competent application in the High Court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court at Meru
Meru CMCC E & L Case No. E190 of 2024
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from designated Environment and Land matters in the magistrates' courts; court held it lacked jurisdiction because the dominant dispute concerns a charge/mortgage within the High Court's civil jurisdiction (Section 13, Environment and Land Court Act; Section 27, Civil Procedure Act on costs)

Relief refused

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Order enlarging time to file an appeal against the Chief Magistrate's ruling of 18/2/2025, and ancillary injunctive relief

The application was filed in a court without jurisdiction over the dominant dispute (a charge/mortgage dispute), making it a nullity that could not be transferred

p. 4

Costs

The applicant shall bear costs of the suit

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the end, the application dated 3/5/2025 is struck out on the ground of want of jurisdiction on part of the Environment and Land Court. The applicant shall bear costs of the suit.
p. 4Final orders - striking out for want of jurisdiction
Regrettably, an erroneous designation of a case/dispute in a magistrate court does not and cannot confer jurisdiction on the Environment & Land Court.
p. 4Erroneous designation and appellate jurisdiction
Jurisdiction is everything. Without it a court has no power to make one more step.
p. 4Primacy of jurisdiction (Lillian S principle)
The application is a nullity ab initio on the above ground.
p. 3Nullity of proceedings filed without jurisdiction

Issues in the judgment

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minor

The 2nd respondent is not individually named in the ruling text; it is referred to only as 'the 2nd respondent' (contextually a bank/chargee)

minor

Typographical inconsistencies: auction date appears as '28/8/20224' and the suit parcel appears as Ntima/Ntakira/5123 in one passage and Ntima/Ntakira/5133 in another

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, "Stanley Kathurima M’Twarugoji v Co-operative Bank of Kenya Ltd & Another", Case Analysis (2025). Miscellaneous Application dated 3/5/2025 (arising from Meru CMCC E & L Case No. E190 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6562/eng@2025-09-29

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