Milele Funeral Burial & Benevolent Services Limited v Business Partners International Kenya (II) Limited & another (Environment and Land Case E037 of 2025) [2025] KEELC 6956 (KLR)
The bottom line
#The Environment and Land Court in Malindi dismissed a borrower's bid to stop a property sale, ruling that disputes over charges and loan defaults belong in the High Court.
What this practically means
#Executive summary
#Key legal issues
#Whether the Environment and Land Court has jurisdiction over a dispute concerning a chargee's exercise of statutory power of sale under a charge
No - such disputes fall within the civil jurisdiction of the High Court; the ELC lacks jurisdiction and must down tools.
Relying on Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, the court held that a charge is a disposition (an interest in land securing money), not land use. The cause of action was the amounts owing under the charge and the statutory notices, not the instrument itself. ELC jurisdiction over contracts must relate to land use; mortgages and charges fall to the High Court. Jurisdiction is everything; without it, the court must halt proceedings.
Whether the Applicant met the threshold for an interlocutory injunction
Not determined - futile to consider once jurisdiction was found wanting.
Having determined that it lacked jurisdiction, the court declined to consider the merits of the injunction application, holding it would be futile to do so. The application was dismissed with costs.
Legal principles established
#- Jurisdiction is conferred by the Constitution or statute, cannot be conferred by agreement or judicial craft, and a court without jurisdiction must halt proceedings
- A charge creates an interest in land for securing repayment of money; the creation and enforcement of a charge (including statutory power of sale) does not constitute land use and falls outside ELC jurisdiction
Court orders
#- 1.The Notice of Motion application dated May 16, 2025 is dismissed with costs
- Jurisdiction invoked
- Article 162(2)(b) Constitution / Environment and Land Court Act, Section 13 (jurisdiction considered and found absent - matter falls within High Court civil jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Milele Funeral Burial & Benevolent Services Limited v Business Partners International Kenya (II) Limited & another (Environment and Land Case E037 of 2025) [2025] KEELC 6956 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6956/eng@2025-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.