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ELCStruck OutNot stated in judgment (memorandum of appeal dated 3/8/2023)· [2025] KEELC 6816 (KLR)

Kiriinya & another v Consolidated Bank Limited & another (Environment and Land Appeal E009 of 2023) [2025] KEELC 6816 (KLR)

Environment and Land Court
8 October 2025
BEB M Eboso
1,718 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a mortgage dispute appeal, confirming such cases belong in the High Court, not the ELC.

What this practically means

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Executive summary

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This was an appeal lodged in the Environment and Land Court at Meru on 3/8/2023, arising from a ruling dated 5/7/2023 in a lower court matter concerning a mortgage dispute. When the appeal first came before a judge on 17/9/2025, the court directed the parties to address it on the question of the ELC's jurisdiction over what appeared to be a mortgage dispute. The appellants' counsel, Mr Mutuma, argued that the dispute centred on whether the chargee served the statutory notice under Section 90 of the Land Act, a matter he contended fell within ELC jurisdiction, and in the alternative sought transfer to the High Court under Section 18 of the Civil Procedure Act. The respondents' counsel, Ms Maina, submitted that the dispute concerned exercise of the chargee's statutory power of sale over a loan default, not title to or use of land, and was outside ELC jurisdiction. Holding itself bound by Court of Appeal authority, notably Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, Diamond Trust Bank Kenya Ltd v FHH and Bank of Africa Kenya Ltd v TSS Investment Ltd, the court found that mortgage/charge disputes, including questions of service of the Section 90 statutory notice, fall within the High Court's civil jurisdiction and not the ELC's. It further held, relying on Phoenix of East Africa Assurance v S.M. Thiga and Equity Bank v Bruce Mutie Mutuku, that a suit filed without jurisdiction is a nullity that cannot be transferred. The appeal was struck out with each party bearing its own costs, the court noting that erroneous designation of the lower court case as a land case contributed to the appeal being filed in the wrong court.

Key legal issues

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01

Whether the ELC has jurisdiction over a dispute on service of a chargee's statutory notice under Section 90 of the Land Act

Holding

It does not; mortgage/charge disputes fall outside ELC jurisdiction and within the High Court's civil jurisdiction

Reasoning

Following binding Court of Appeal authority (Co-operative Bank v Kangethe Njuguna, Diamond Trust Bank v FHH, Bank of Africa v TSS Investment), mortgage and charge disputes, including restraining exercise of statutory power of sale, are commercial matters for the High Court. ELC jurisdiction over contracts must be understood as incidental to the 'use' of land, which charges are not. Under stare decisis this court is bound.

p. 3
02

Whether the appeal could be transferred to the High Court

Holding

No; a suit filed without jurisdiction is a nullity incapable of transfer

Reasoning

Relying on Phoenix of East Africa Assurance v S.M. Thiga and Equity Bank v Bruce Mutie Mutuku, the court held that transfer under Section 18 of the Civil Procedure Act cannot sanctify an incompetent suit; the only remedy is withdrawal and fresh filing in a competent court.

p. 4
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Costs

Holding

Each party to bear their own costs because the erroneous designation of the case as a land case contributed to the appeal being lodged in the wrong court

Reasoning

The court found that the lower court matter was an ordinary commercial/civil dispute erroneously designated as a land case, and neither party sought proper re-designation; this misdesignation caused the appeal to be filed in the ELC, justifying no order as to costs.

p. 4

Legal principles established

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  • The Environment and Land Court lacks jurisdiction to entertain mortgage/charge disputes, including disputes over service of the chargee's statutory notice under Section 90 of the Land Act; such matters fall within the civil jurisdiction of the High Court
  • A suit filed in a court without jurisdiction is a nullity, dead on arrival, and cannot be cured by transfer to a competent court; jurisdiction cannot be conferred by consent or by the overriding objective

Court orders

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  1. 1.The appeal is struck out on the ground that the Environment and Land Court does not have jurisdiction to entertain a mortgage/charge dispute
  2. 2.Parties will bear their respective costs of the appeal
On appeal from
Lower court (not specified; erroneously designated as a land case)
Jurisdiction invoked
Jurisdiction of the Environment and Land Court under the ELC Act and Article 162(2) framework; Section 18 Civil Procedure Act raised on transfer

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, "Kiriinya & another v Consolidated Bank Limited & another (Environment and Land Appeal E009 of 2023) [2025] KEELC 6816 (KLR)", Case Analysis (2025). Not stated in judgment (memorandum of appeal dated 3/8/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6816/eng@2025-10-08

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