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ELCDismissedMigori ELC Appeal (Memorandum of Appeal dated 15th September 2025)· [2026] KEELC 104 (KLR)

Olwalo & 3 others v Sidian Bank Limited & 2 others (Environment and Land Appeal E028 of 2025) [2026] KEELC 104 (KLR)

Environment and Land Court
14 January 2026
NYNYAGAKA
2,393 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Migori dismissed an appeal because a dispute over auctioning charged land for loan default is a debt matter, not a land-use case.

What this practically means

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Executive summary

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The Appellants appealed against a ruling of Hon. M. Okuche (SPM) delivered on 11th September 2025 in Migori CM ELC No. 037 of 2025, and subsequently filed an application dated 23rd September 2025. The 1st and 2nd Respondents raised a preliminary objection contending that the court lacked jurisdiction to hear an application seeking to restrain the 1st Respondent from exercising its statutory power of sale, relying on the Court of Appeal decision in Co-operative Bank of Kenya v Patrick Kangethe Njuguna. The objection was canvassed by written submissions; the Appellants argued they were not privy to the charge, that the 3rd Respondent held the suit property in customary trust for them under section 28 of the Land Registration Act, and that customary land rights fall within the ELC's jurisdiction under section 13(2) of the ELC Act and section 150 of the Land Act. Applying the Mukisa Biscuits test, the court found the objection raised a pure point of law. Adopting the reasoning in Co-operative Bank of Kenya v Kangethe Njuguna, the court held that a dispute over an intended auction of charged land for loan default is a civil debt, not land use, and therefore outside the ELC's jurisdiction under Article 162(2)(b). The preliminary objection was upheld, the interim orders previously granted were discharged, and the entire appeal was dismissed as it would be absurd to leave it hanging once jurisdiction was found wanting. The Appellants were ordered to bear the costs of the objection and application, but each party was to bear their own costs of the appeal. The trial court file was ordered transmitted back to the lower registry.

Key legal issues

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01

Whether the ELC has jurisdiction over a dispute concerning an intended auction of charged land for loan default

Holding

No - the dispute is a civil debt, not land use; charging land does not connote land use

Reasoning

Relying on Co-operative Bank of Kenya v Kangethe Njuguna, the court held that the ELC's jurisdiction over contracts must be understood in the context of 'use' of land, and that mortgages and charges fall within the civil jurisdiction of the High Court. The appeal arose from an intended auction over a loan default, so the initial charging of the property could not found ELC jurisdiction.

p. 5
02

Whether the preliminary objection met the Mukisa Biscuits threshold

Holding

Yes - jurisdiction is a pure point of law arising from statute or the Constitution

Reasoning

The court applied the Mukisa Biscuits test, noting that jurisdiction flows from statute or the Constitution and therefore the objection raised a pure point of law requiring only consideration of the pleadings and the law, without ascertaining facts.

p. 3

Legal principles established

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  • A dispute over charging land and exercise of statutory power of sale for loan default is a civil debt within the High Court's jurisdiction, not land use under Article 162(2)(b)
  • Preliminary objections on jurisdiction are pure points of law per Mukisa Biscuits

Court orders

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  1. 1.Preliminary objection upheld; court found to lack jurisdiction to hear the application dated 23rd September 2025
  2. 2.Interim orders granted earlier discharged forthwith
  3. 3.Entire appeal dismissed
  4. 4.Each party to bear their own costs of the appeal; Appellants to bear costs of the objection and the application
  5. 5.Original file of the trial court to be transmitted to the lower court registry forthwith
On appeal from
Chief Magistrate's Court, Migori (Migori CM ELC No. 037 of 2025)
Migori CM ELC No. 037 of 2025
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13(4) Environment and Land Court Act (appellate jurisdiction over subordinate courts)

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, "Olwalo & 3 others v Sidian Bank Limited & 2 others (Environment and Land Appeal E028 of 2025) [2026] KEELC 104 (KLR)", Case Analysis (2026). Migori ELC Appeal (Memorandum of Appeal dated 15th September 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/104/eng@2026-01-14

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