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ELCStruck OutNgong CMCC Appeal No. E018 of 2022 (arising from Ngong CMCC No. E018 of 2022)· [2026] KEELC 1322 (KLR)

Nyangeri & another v Housing Finance Company of Kenya Limited & another (Civil Appeal E004 of 2024) [2026] KEELC 1322 (KLR)

Environment and Land Court
5 March 2026
2,470 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out an appeal against a bank's auction because mortgage and charge disputes belong in the High Court, not the ELC.

What this practically means

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Executive summary

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The appellants, Caroline Kemunto Nyangeri and Alfaxard Mobisa Gwako, appealed against a ruling of the Senior Principal Magistrate, Hon. A. Makau, delivered on 9th October 2024 in Ngong CMCC No. E018 of 2022. The trial court had upheld the 1st Respondent's preliminary objection and struck out the appellants' Notice of Motion dated 9th August 2024, which sought to restrain the sale by public auction of the suit property Ngong/Ngong/3860 on the ground that the property had been declared a condemned structure by the National Buildings Inspectorate and that no fresh statutory power of sale notice had been issued. The trial court held that the application was res judicata, a similar injunction application dated 28th January 2022 having been determined on 26th June 2023. On appeal, the respondents raised a jurisdictional objection. The court, M.D. Mwangi J, considered jurisdiction first, as it was central and determinative. Relying on Owners of the Motor Vessel 'Lillian S', Samuel Kamau Macharia, and particularly the Court of Appeal's decision in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna, the court held that the dispute concerned a charge and the chargee's exercise of the statutory power of sale, which has nothing to do with the 'use' of land and therefore falls outside section 13 of the ELC Act, lying instead within the High Court's civil jurisdiction. The appeal had been transferred to the ELC at the appellants' advocates' request. The court struck out the appeal with costs to the respondents.

Key legal issues

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Whether the ELC has appellate jurisdiction over an appeal challenging a chargee's exercise of statutory power of sale

Holding

The court held it lacks jurisdiction because the dispute relates to a charge, not the use and occupation of, or title to, land

Reasoning

The court relied on Co-operative Bank of Kenya v Patrick Kangethe Njuguna, where the Court of Appeal held that the ELC's jurisdiction over contracts under section 13 of the ELC Act must be understood in the context of disputes connected to the 'use' of land. A charge creates rights limited to realization of the security and has nothing to do with the use of land. That decision binds this court, so the appeal must be struck out notwithstanding its transfer from the High Court.

p. 5

Legal principles established

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  • The ELC lacks jurisdiction over disputes concerning mortgages and charges, including the exercise of a chargee's statutory power of sale; such disputes fall within the civil jurisdiction of the High Court
  • Jurisdiction flows from the Constitution or legislation and a court can only exercise jurisdiction conferred upon it by the Constitution or other written law

Court orders

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  1. 1.The appeal is struck out with costs to the Respondents
On appeal from
Senior Principal Magistrate's Court, Ngong
Ngong CMCC No. E018 of 2022
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 and sections 13(4) and 13(5) 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, "Nyangeri & another v Housing Finance Company of Kenya Limited & another (Civil Appeal E004 of 2024) [2026] KEELC 1322 (KLR)", Case Analysis (2026). Ngong CMCC Appeal No. E018 of 2022 (arising from Ngong CMCC No. E018 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1322/eng@2026-03-05

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