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ELCOtherNot stated in the judgment (Notice of Motion dated 10/04/2025)· [2025] KEELC 7966 (KLR)

JNG v Equity Bank Kenya Limited & 2 others (Environment and Land Case E059 of 2025) [2025] KEELC 7966 (KLR)

Environment and Land Court
19 November 2025
MOMogeni
3,113 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff, JNG, applied by Notice of Motion dated 10/04/2025 under Order 40 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act for injunctions restraining the defendants from selling by public auction or interfering with land parcels Juja/Kiura xxxx and Kiambaa/Ruaka/xxxx, which she asserted were matrimonial property and the matrimonial home, pending determination of the suit. Her case was that she is the customary-law spouse of MK, the registered owner, and that the properties, valued at over Kesh 90 million, would be lost if the bank's auction proceeded. The 1st and 2nd defendants (Equity Bank and its auctioneer) replied that the bank had advanced Kesh 50 million to MK in 2018 secured by charges over the properties, that the plaintiff had executed spousal consents, that statutory notices had been issued, and that an earlier injunction application in HCCoMM No. E217 of 2025 had been dismissed by Justice Visram Aleem, who found the statutory power of sale had crystallised. They also raised sub judice and jurisdiction, contending the dispute was commercial rather than a land dispute. The court, on its own framing, addressed jurisdiction first. Applying Owners of Motor Vessel 'Lilian S', R v Karisa Chengo and Samuel Kamau Macharia, and relying on Co-operative Bank v Njuguna, Mogeni J held that the crux of the dispute is the wife's asserted rights over matrimonial property, for which Section 17 of the Matrimonial Property Act provides the remedy, and that in the absence of an express forum the High Court has jurisdiction under Article 165(3)(a). The ELC therefore lacked jurisdiction. Following Benson Ambuti Adega v Kibos Distillers, the court declined to strike out the suit and instead transferred it to the Family Division of the High Court at Thika, leaving the application dated 10/04/2025 to be disposed of there, without expressing any view on the merits of the injunction.

Key legal issues

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01

Jurisdiction of the ELC over matrimonial property claims against a mortgagee exercising statutory power of sale

Holding

The ELC lacks jurisdiction; the dispute belongs to the High Court under Article 165(3)(a) read with Section 17 of the Matrimonial Property Act.

Reasoning

The plaintiff's case is that the charged properties are matrimonial property in which she holds spousal rights. The redress mechanism for such a claim is Section 17 of the Matrimonial Property Act 2013. Since that Act does not define the competent court, the fallback is the High Court's unlimited original civil jurisdiction under Article 165(3)(a). The court also relied on Co-operative Bank of Kenya v Njuguna, which held that mortgages and charges fall outside the ELC's 'use of land' jurisdiction. Consequently the ELC cannot entertain the suit.

p. 6
02

Whether the suit should be struck out for want of jurisdiction

Holding

No; following Benson Ambuti Adega v Kibos Distillers, the suit was remitted (transferred) to the Family Division of the High Court at Thika rather than struck out.

Reasoning

The court noted that until recently lack of jurisdiction would have meant striking out, but the Supreme Court in Kibos Distillers emphasised Article 50 and access to justice, holding that where a court lacks jurisdiction it should remit the matter to the competent forum rather than shut the litigant out of the seat of justice. The court accordingly did not consider the merits of the injunctive application and transferred the suit.

p. 7

Legal principles established

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  • A court must determine a raised issue of jurisdiction before any other question, since jurisdiction is a threshold matter.
  • Where a court lacks jurisdiction, the proper recourse is to remit the dispute to the appropriate court rather than strike out the suit, per Benson Ambuti Adega v Kibos Distillers.
  • A dispute framed as one over a spouse's rights in matrimonial property falls under Section 17 of the Matrimonial Property Act and, absent an express forum in the Act, lies within the High Court's unlimited original jurisdiction under Article 165(3)(a), not the ELC.

Court orders

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  1. 1.This suit is hereby transferred to the Family Division of the High Court at Thika.
  2. 2.The application dated 10/04/2025 shall be disposed by the said Division of the High Court.
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court 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, "JNG v Equity Bank Kenya Limited & 2 others (Environment and Land Case E059 of 2025) [2025] KEELC 7966 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 10/04/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7966/eng@2025-11-19

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