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ELCOtherNot stated in judgment (replaces withdrawn ELC Case No. E039 of 2024 and HCCOMM E376 of 2024)

Aly Enterprises Limited v Absa Bank Kenya PLC & 5 others; Mafuta Products Limited & another (Interested Parties) (Environment and Land Case E375 of 2024) [2025] KEELC 7685 (KLR)

Environment and Land Court
7 November 2025
4,811 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it can hear disputes challenging the validity of land sold by a bank, even when the row started as a loan matter.

What this practically means

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Executive summary

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The Environment and Land Court at Nairobi (Mohammed N. Kullow, J) delivered a ruling on four preliminary objections raised by the 1st, 3rd, 4th, 5th and 6th Defendants challenging the Court's jurisdiction over a suit by Aly Enterprises Limited concerning Title No. Nairobi/Block 95/38. The Defendants argued that the dispute, arising from a charge, loan facilities and the exercise of a statutory power of sale culminating in a private treaty sale to the 3rd Defendant, was purely commercial and belonged to the High Court under Article 165(3) of the Constitution. The 1st Defendant further contended the suit was an abuse of process, the Plaintiff having earlier filed and withdrawn ELC Case No. E039 of 2024 over the same subject matter. The Plaintiff and the Interested Parties opposed, contending that the prayers sought declarations on ownership, title, registration and cancellation of transfer, matters squarely within the ELC's mandate under Article 162(2)(b), Section 13(2) of the ELC Act and Section 150 of the Land Act. The Plaintiff explained that it had re-filed in the High Court (HCCOMM E376 of 2024), where Justice Visram Aleem Alnashir held the dispute concerned title and belonged before the ELC, prompting the present filing. The Court framed three issues: jurisdiction, characterization of the dispute, and abuse of process. Applying the predominant issue test, it held the gravamen was the validity of the sale, transfer and registration - land matters within its exclusive jurisdiction. It found no abuse of process since the earlier suits were withdrawn before merits determination and the present suit followed judicial direction. All preliminary objections were dismissed with joint and several costs to the Plaintiff.

Questions the Court framed

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

  1. 1.Whether this Honourable Court has jurisdiction to hear and determine the present dispute as framed in the Plaint
  2. 2.Whether the dispute is properly characterized as a commercial matter falling within the jurisdiction of the High Court or as a land dispute within the mandate of the Environment and Land Court
  3. 3.Whether the filing of the present suit amounts to an abuse of the court process in view of the previous proceedings involving the same parties and subject matter

Key legal issues

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01

Jurisdiction of the ELC over challenges to sale, transfer and registration of charged land

Holding

The Court has jurisdiction; the predominant issue is ownership, title and registration, not loan enforcement

Reasoning

Applying the predominant issue test from Suzanne Achieng Butler, the Court held that jurisdiction flows from the pleadings and prayers. The Plaintiff's prayers sought declarations that the private treaty sale was void, cancellation of title, discharge of the subsequent charge and injunctions - remedies affecting the Land Register and proprietary interests, exclusively within the ELC under Section 13(2)(d) and (e) of the ELC Act and Section 150 of the Land Act.

p. 6
02

Characterization as commercial versus land dispute

Holding

The dispute is a land dispute within the ELC's mandate despite originating from a charge

Reasoning

The Court accepted that charge-enforcement disputes generally lie with the High Court, but where the suit questions the legality of the resultant title, transfer and registration, it becomes a land dispute. The Plaintiff alleged fraudulent sale, forged instruments and unlawful registration under the Land Registration Act and Land Act, and did not contest the charge or loan itself.

03

Whether the suit is an abuse of court process given prior proceedings

Holding

No abuse of process; the prior suits were withdrawn before determination on the merits and refiling followed High Court direction

Reasoning

ELC Case No. E039 of 2024 and HCCOMM E376 of 2024 were both withdrawn before any merits determination, so res judicata under Section 7 of the Civil Procedure Act did not arise. The present suit was filed in obedience to the High Court's direction that the dispute belonged before the ELC, evidencing good faith rather than forum-shopping. The Court also invoked the Supreme Court's caution against using preliminary objections as a sword.

Legal principles established

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  • Jurisdiction is determined by the predominant issue disclosed in the pleadings and reliefs sought, not by the defences or origin of the cause of action
  • Where a plaintiff challenges the process of sale, transfer and registration of title arising from a charge, the dispute is a land dispute within the ELC's jurisdiction even if it originated from a commercial transaction
  • Filing successive suits in obedience to judicial direction on the proper forum is not abuse of court process, and withdrawal before merits determination precludes res judicata

Court orders

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  1. 1.The Preliminary Objections dated 6th January 2025 (1st Defendant), 28th January 2025 (3rd Defendant), 30th January 2025 (4th Defendant), and 28th November 2024 (5th and 6th Defendants) are without merit and are dismissed
  2. 2.Costs of the Preliminary Objections to be borne by the 1st, 3rd, 4th, 5th, and 6th Defendants jointly and severally, payable to the Plaintiff

The bench

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

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act, 2011; Section 150 of the Land Act

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.

The upshot is that the Preliminary Objections dated 6th January 2025 (1st Defendant), 28th January 2025 (3rd Defendant), 30th January 2025 (4th Defendant), and 28th November 2024 (5th and 6th Defendants) are without merit and are hereby dismissed.
p. 9Final orders - dismissal of preliminary objections
Costs of the Preliminary Objections shall be borne by the 1st, 3rd, 4th, 5th, and 6th Defendants jointly and severally, to be paid to the Plaintiff.
p. 9Costs order
Accordingly, the Court finds and holds that it is properly seized of jurisdiction to hear and determine this dispute. The Defendants' objection on jurisdiction is therefore without merit
p. 6Jurisdiction finding
Accordingly, this Court finds that the present dispute is not a commercial dispute as alleged by the Defendants but a land dispute falling squarely within the jurisdiction of the Environment and Land Court
p. 7Characterization of the dispute
Consequently, this issue is answered in the negative.
p. 8Abuse of process issue
the Court finds that none of them meets the threshold of a pure point of law capable of disposing of this suit at this stage as defined in Mukisa Biscuit Manufacturing Co. Ltd -Vs- West End Distributors Ltd (1969) EA 696
p. 9Threshold for preliminary objections

Issues in the judgment

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minor

Truncated sentence in the disposition: the paragraph addressing the second issue ends mid-sentence

minor

Case number of the present suit is not stated anywhere in the judgment

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, "Aly Enterprises Limited v Absa Bank Kenya PLC & 5 others; Mafuta Products Limited & another (Interested Parties) (Environment and Land Case E375 of 2024) [2025] KEELC 7685 (KLR)", Case Analysis (2025). Not stated in judgment (replaces withdrawn ELC Case No. E039 of 2024 and HCCOMM E376 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7685/eng@2025-11-07

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