Murungi v KCB Bank Kenya Limited & another (Environment and Land Appeal E025 of 2026) [2026] KEELC 1548 (KLR)
The bottom line
#A Kenyan landowner trying to stop a bank auction lost because his appeal had no legal basis, and courts won't halt a sale just because a borrower disagrees with it.
What this practically means
#Executive summary
#Key legal issues
#Competence of the appeal
The appeal does not lie; it is premature, misconceived and a nullity because the magistrate's directions of 25.02.2026 were not an order, no appeal lay as of right, and no leave was sought
A right of appeal must be statutorily prescribed and cannot be implied. Order 43 Rule 1(o) of the Civil Procedure Rules only permits appeal against an order allowing or dismissing an application. The magistrate's directions merely scheduled the still-pending application for hearing on 18.03.2026 and granted no interim orders, hence no appealable order existed and no leave was obtained.
Jurisdiction of the ELC over the statutory power of sale
The ELC has no jurisdiction to entertain challenges to the exercise of statutory power of sale; that jurisdiction belongs to the High Court
Relying on Court of Appeal precedent (Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna and Bank of Africa Kenya Ltd v TSS Investment Ltd), the court held it bound by the doctrine of stare decisis unless the Supreme Court intervenes. The gazette notice 5178 of 2014 relied on by the applicant was misapprehended and superseded by the ELC Practice Directions 2025.
Abuse of process and res sub judice
The application amounts to an abuse of court process and is caught by section 6 of the Civil Procedure Act because the application dated 24.02.2026 seeking the same reliefs is still pending
The applicant had earlier filed an application dated 15.11.2023 dismissed on 16.04.2025, then filed another dated 24.02.2026 still pending, and now the present application seeking identical reliefs. Citing Satya Bhama Gandhi and the Supreme Court's articulation of res sub judice, the court held multiplicity of applications between the same parties over the same subject matter cannot be countenanced.
Threshold for interim relief
The applicant failed to establish a basis for the orders sought; loss from an allegedly improper sale is compensable in damages
The property pledged as security becomes a commodity for sale upon default; it was valued by statutory valuation, so any loss from improper sale is quantifiable in monetary terms, and the applicant did not suggest the chargee could not make good any loss. Section 99(1) of the Land Act provides indemnity in damages.
Legal principles established
#- A right of appeal must be expressly and explicitly provided for by statute; it cannot be inferred or implied
- Directions which merely set down an application for inter partes hearing are not an order capable of being appealed against under Order 43 Rule 1 of the Civil Procedure Rules
- The Environment and Land Court lacks jurisdiction over matters pertaining to the exercise of the statutory power of sale, which belongs to the High Court
- Filing multiple applications seeking the same or nearly the same reliefs concurrently constitutes an abuse of the due process of the court and offends res sub judice
- A chargee ought not be stopped from exercising its statutory power of sale merely because the chargor is unhappy with the manner of the sale; improper exercise attracts damages under section 99(1) of the Land Act
Court orders
#- 1.The Appeal be and is hereby struck out
- 2.The Application dated 02.03.2026 be and is hereby struck out
- 3.Costs of the Appeal and the Application be and are hereby awarded to the 1st Respondent
- 4.The Costs shall be agreed upon and in default be taxed in the conventional manner
- On appeal from
- Chief Magistrate's Court at Meru
- Meru CMELC No. E134 of 2023
- Jurisdiction invoked
- Sections 3, 13 and 16A of the Environment and Land Court Act, 2011; Sections 97 and 103 of the Land Act, 2012; Articles 48 and 162(2)(b) of the Constitution, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murungi v KCB Bank Kenya Limited & another (Environment and Land Appeal E025 of 2026) [2026] KEELC 1548 (KLR)", Case Analysis (2026). Meru ELC Appeal (arising from Meru CMELC No. E134 of 2023); Notice of Motion dated 02.03.2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1548/eng@2026-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.