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ELCOtherNotice of Motion dated 29/04/2025 (suit at Thika Environment and Land Court)

Mutethia t/a Times & Seasons Chemicals v Absa Bank Kenya PLC & another (Environment and Land Case E075 of 2025) [2026] KEELC 990 (KLR)

Environment and Land Court
16 February 2026
2,146 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to stop a bank's property auction, ruling the real fight over loan accounts belongs to the High Court, and transferred the case there.

What this practically means

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Executive summary

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The Plaintiff moved the court by Notice of Motion dated 29/04/2025 seeking a temporary injunction restraining the Defendants from selling, transferring or disposing of property known as Kiambu/Municipality Block 111/46, pending hearing of a suit in which he seeks declarations that the 1st Defendant's exercise of its statutory power of sale is fraudulent, unlawful and undertaken in bad faith, together with a permanent injunction. The 1st Defendant, through Samuel Njuguna, its Secured Lending Team Leader, opposed the application, asserting a credit facility of Kshs 28,000,000 granted in December 2017 and a further Kshs 9,166,666 in 2019, secured by a legal charge over the suit property, an outstanding balance of Kshs 36,281,884.55, due issuance of the 90-day, 40-day and 45-day statutory notices, a valuation of Kshs 62.5 million with a reserve price of Kshs 48 million, and prior payment-plan negotiations. It also contended the court lacked jurisdiction and sought striking out of the suit. The court addressed jurisdiction first, applying Owners of the Motor Vessel 'Lilian S'. Relying on Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, it held that the ELC's jurisdiction under Section 13(2) of the Environment and Land Court Act and Article 162(2)(b) excludes questions of accounts and outstanding debts, and that accounts were the predominant issue here. Declining to strike out the suit, and guided by Dominic v County Government of Narok on concurrent jurisdiction, the court transferred the suit to the Thika High Court for mention on 3/03/2026, vacated all temporary orders, and made no orders as to costs.

Questions the Court framed

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

  1. 1.Whether this Court has jurisdiction to determine the dispute, the same having been challenged by the 1st Defendant
  2. 2.Whether the predominant dispute is one of accounts outstanding under the credit facility rather than the charge or injunction
  3. 3.Whether a temporary injunction should issue restraining the sale of the suit property pending hearing of the suit

Key legal issues

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01

Jurisdiction of the ELC over a chargee's exercise of statutory power of sale where the real dispute is over loan accounts

Holding

The ELC's jurisdiction under Section 13(2) of the Environment and Land Court Act and Article 162(2)(b) does not extend to determining questions of accounts or outstanding debts; where the predominant issue is accounts, the matter belongs to the High Court.

Reasoning

The court relied on the Court of Appeal's decision in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, which held that a charge does not constitute use of land and that where the cause of action concerns tabulation of sums owing rather than the validity of the charge, jurisdiction lies outside the ELC. Here the parties do not dispute the charge or the debt, only the accounts, making accounts the predominant issue.

p. 3
02

Remedy where two courts have concurrent jurisdiction

Holding

Rather than striking out the suit, the court exercised its discretion to transfer it to the High Court, guided by the force-cases model of deferring to the court with jurisdiction over the primary subject matter.

Reasoning

Citing Justice F. Gikonyo's ruling in Dominic & 3 Others v County Government of Narok, the court held that inherent powers permit a court not to exercise a jurisdiction it has, to protect the integrity of judicial processes and defer to the court best placed to determine the predominant issue. Dismissal for want of jurisdiction would be drastic since the ELC is not wholly without jurisdiction.

p. 5
03

Whether to grant a temporary injunction restraining sale of the suit property

Holding

The application for injunction was not granted; all temporary orders were vacated upon transfer of the suit to the High Court.

Reasoning

Because the court found the predominant dispute to be accounts, which it could not determine, granting injunctive relief would not settle the real dispute. The court instead transferred the whole suit and vacated any interim orders, leaving the injunction question to be dealt with by the High Court.

p. 4

Legal principles established

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  • Where courts have concurrent jurisdiction, a court may decline to exercise its jurisdiction in favour of the court with jurisdiction over the predominant subject matter, as an exercise of discretion in the interest of justice.
  • A court without jurisdiction cannot grant any orders, however meritorious the case.

Court orders

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  1. 1.This suit be and is hereby transferred to the Thika High Court for Mention on 3/03/2026 for further directions as to hearing.
  2. 2.Any temporary orders issued are hereby vacated.
  3. 3.No orders as to costs.

The bench

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

majority

Wrote the judgment

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

Relief refused

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Temporary injunction restraining sale, transfer or disposal of Kiambu/Municipality Block 111/46

The predominant dispute is over accounts, a matter outside or better suited to the High Court's jurisdiction; the court instead transferred the suit and vacated temporary orders

p. 5

Striking out the suit for lack of jurisdiction as sought by the 1st Defendant

Both courts have concurrent jurisdiction and the predominant issue lies with the High Court, making transfer rather than dismissal the just course

p. 4

Costs

I make no orders as to costs.

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.

A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
p. 3jurisdiction
This suit be and is hereby transferred to the Thika High Court for Mention on 3/03/2026 for further directions as to hearing.
p. 5final orders - transfer
Any temporary orders issued are hereby vacated.
p. 5final orders - vacation of interim orders
I make no orders as to costs.
p. 5final orders - costs
Rather, this is a case where two Courts have concurrent jurisdiction but the predominant dispute is with the High Court.
p. 5concurrent jurisdiction

Issues in the judgment

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minor

The judgment does not disclose the full names of the parties or the suit's case number; the caption is only a Notice of Motion dated 29/04/2025.

minor

The 1st Defendant's response is described both as opposing the application and as seeking striking out of the entire case, and the deponent is variously referred to as representing the Defendant and the 1st Defendant.

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, "Mutethia t/a Times & Seasons Chemicals v Absa Bank Kenya PLC & another (Environment and Land Case E075 of 2025) [2026] KEELC 990 (KLR)", Case Analysis (2026). Notice of Motion dated 29/04/2025 (suit at Thika Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/990/eng@2026-02-16

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