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ELCStruck OutMeru ELC Appeal (arising from Meru CMELC No. E134 of 2023); Notice of Motion dated 02.03.2026· [2026] KEELC 1548 (KLR)

Murungi v KCB Bank Kenya Limited & another (Environment and Land Appeal E025 of 2026) [2026] KEELC 1548 (KLR)

Environment and Land Court
11 March 2026
5,120 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The applicant, James Henry Murungi, charged land parcel Mwimbi/Kiraro/899 to KCB Limited under a banking facility and defaulted. After the bank moved to exercise its statutory power of sale, the applicant's earlier injunction application (dated 15.11.2023) was dismissed by ruling of 16.04.2025. He then filed another application dated 24.02.2026 in Meru CMELC No. E134 of 2023, which the designated magistrate, by directions of 25.02.2026, scheduled for inter partes hearing on 18.03.2026 without granting interim orders. Aggrieved, the applicant appealed to the Environment and Land Court and filed the present Notice of Motion dated 02.03.2026 seeking stay of an auction scheduled for 3 March 2026, setting aside of the magistrate's directions, and preservation of the property. The 1st Respondent opposed, contending the court lacked jurisdiction, the directions were not appealable, and the application was forum shopping and an abuse of process. The court framed five issues and held: (1) the appeal was incompetent, premature and a nullity because the magistrate's directions were not an appealable order under Order 43 Rule 1(o) and no leave was obtained; (2) the ELC lacks jurisdiction over challenges to the exercise of statutory power of sale, which belongs to the High Court, per binding Court of Appeal precedent; (3) the multiplicity of applications seeking the same reliefs amounted to abuse of court process; (4) the application offended res sub judice under section 6 of the Civil Procedure Act; and (5) any loss from an allegedly improper sale is compensable in damages under section 99(1) of the Land Act. The appeal and application were struck out with costs to the 1st Respondent.

Key legal issues

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01

Competence of the appeal

Holding

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

Reasoning

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.

p. 4
02

Jurisdiction of the ELC over the statutory power of sale

Holding

The ELC has no jurisdiction to entertain challenges to the exercise of statutory power of sale; that jurisdiction belongs to the High Court

Reasoning

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.

p. 9
03

Abuse of process and res sub judice

Holding

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

Reasoning

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.

p. 7
04

Threshold for interim relief

Holding

The applicant failed to establish a basis for the orders sought; loss from an allegedly improper sale is compensable in damages

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.The Appeal be and is hereby struck out
  2. 2.The Application dated 02.03.2026 be and is hereby struck out
  3. 3.Costs of the Appeal and the Application be and are hereby awarded to the 1st Respondent
  4. 4.The Costs shall be agreed upon and in default be taxed in the conventional manner

Authorities

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Legislation

  • Environment and Land Court ActSections 3, 13, 16A
  • Land Act, 2012Sections 97, 103, 99(1)
  • Constitution of Kenya, 2010Articles 48, 162(2)(b), 1A, 1B of the Civil Procedure Act referenced separately
  • Civil Procedure Act, Chapter 21 Laws of KenyaSections 6, 75, 1A, 1B
  • Civil Procedure Rules, 2010Order 43 Rule 1(o)
  • Environment and Land Court Practice Directions2025
  • Gazette Notice Number 5178 of 2014

Cases cited (8)

  • Cooperative Bank of Kenya Limited versus Patrick Kangethe Njuguna and another
    [2017] EKLR
  • Attorney General v Bala
    [2023] KECA 117 (KLR)
  • Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 Others
    NRB CA Civil Appeal No. 154 of 2013 [2013] eKLR
  • Bank of Africa Kenya Limited & another v TSS Investment Limited & 2 others
    (Civil Appeal E055 of 2022) [2024] KECA 410 (KLR)
  • Satya Bhama Gandhi v Director of Public Prosecutions & 3 others
    [2018] KEHC 6100 (KLR)
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    [2020] KESC 54 (KLR)
  • Elijah Kipngeno Arap Bii versus Kenya Commercial Bank Limited
    2021 eKLR
  • Asanyo & 3 others v Attorney-General
    [2020] KESC 62 (KLR)
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

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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, "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.