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ELCPartially AllowedMavoko ELC Appeal (memorandum of appeal dated 17/01/2025)· [2025] KEELC 8099 (KLR)

Kisiara v Co-operative Bank of Kenya Limited (Environment and Land Appeal E003 of 2025) [2025] KEELC 8099 (KLR)

Environment and Land Court
18 November 2025
AKA. Y. Koross
1,405 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a homeowner's suit against a bank because disputes over charges and loan sales belong in commercial court, not the ELC.

What this practically means

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Executive summary

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The appellant, a former employee of the respondent, had borrowed a loan secured by a charge over parcel L.R. No. 12715/6063 IR 113840 in Syokimau, Machakos County. After dismissal from employment and a pending ELRC case (Nairobi ELRC Case E978/2021), the respondent moved to exercise its statutory power of sale. The appellant sued before the trial court (Mavoko MC. ELC No. E064 of 2024) seeking a declaration that the security-realisation process was flawed and a recalculation of the loan, plus interim reliefs. The respondent challenged jurisdiction, and on 18/12/2024 the trial court stayed the suit as sub judice under Section 6 of the Civil Procedure Act and vacated interim orders. The appellant appealed, contending the trial court misinterpreted Section 6 by finding the ELRC and ELC matters substantially similar, and sought an injunction against sale of the suit property plus costs. Allowing the appeal in part, the court, as a first appellate court, re-evaluated the record and framed two issues: whether the suit concerned environment and land, and whether the sub judice finding was erroneous. Applying Co-operative Bank v Kangethe Njuguna, the court held that disputes over charges, loan interest, statutory power of sale and foreclosure fall within the civil/commercial jurisdiction of the High Court, not the ELC, whose contract jurisdiction is confined to matters incidental to the use of land. Lacking jurisdiction, the court downed its tools, found the suit incompetent, struck it out, and awarded the respondent costs of both the suit and the appeal. The appellant's motion dated 17/01/2025 was rendered moot by the final decision. Judgment delivered virtually at Machakos on 18 November 2025 by Koross J.

Key legal issues

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01

Whether a dispute over a charge, loan interest rates, statutory power of sale and foreclosure falls within the ELC's jurisdiction

Holding

No. Such disputes concern charges, not the environment or the use, occupation of, and title to land; they must be filed before a commercial court, and the ELC lacks jurisdiction.

Reasoning

Articles 165(5) and 162(2)(b) confer exclusive jurisdiction on the ELC over environment and land disputes, excluding the High Court and vice versa. Applying Co-operative Bank v Kangethe Njuguna, ELC contract jurisdiction extends only to contracts incidental to the use of land, excluding mortgages, charges, collection of dues and rents, which fall to the High Court's civil jurisdiction.

p. 3
02

The appropriate remedy where an ELC suit is filed without jurisdiction, in light of the trial court's order staying the suit as sub judice

Holding

The incompetent suit should be struck out, not stayed; the trial court's stay order was substituted with an order striking out the suit.

Reasoning

Having found it lacked jurisdiction, the court downs its tools and holds the suit incompetent. The appropriate remedy is to substitute the trial court's stay order with an order striking out the suit, with costs following the event.

p. 3

Legal principles established

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  • The ELC's jurisdiction over contract disputes is limited to contracts incidental to the use of land; mortgages, charges, collection of dues and rents fall within the civil jurisdiction of the High Court/commercial courts.
  • A court without jurisdiction must down its tools and cannot take any step in the matter.
  • On a first appeal, the appellate court must re-examine the evidence and reach its own independent conclusions.

Court orders

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  1. 1.The entire suit before the trial court is struck out with costs to the respondent
  2. 2.The respondent shall have the costs of this appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 165 and 165(5)
  • Civil Procedure ActSection 6
  • Civil Procedure RulesOrder 42 Rule 32
  • Environment and Land Court ActSection 13

Cases cited (2)

  • Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates
    [2013] KECA 208 (KLR)
  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others
    [2017] KECA 79 (KLR)
On appeal from
Trial court (ELC suit at Mavoko, treated as Environment and Land Court matter)
Mavoko MC. ELC No. E064 of 2024
Jurisdiction invoked
Articles 162(2)(b) and 165(5) of the Constitution of Kenya; Order 42 Rule 32 of the Civil Procedure Rules (first appeal)

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, "Kisiara v Co-operative Bank of Kenya Limited (Environment and Land Appeal E003 of 2025) [2025] KEELC 8099 (KLR)", Case Analysis (2025). Mavoko ELC Appeal (memorandum of appeal dated 17/01/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8099/eng@2025-11-18

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