Maina v Kibe & 11 others (Environment and Land Case E153 of 2025) [2026] KEELC 1629 (KLR)

The Bank argued that a dispute arising from a charge and statutory power of sale belongs to the High Court Commercial Division. Applying the predominant purpose test, the court found the real controversy concerns the transfer of title, which is a dispute relating to land and title within Article 162(2)(b) and section 13 of the ELC Act. A dispute alleging fraudulent transfer of land and unlawful charging of title falls squarely within the ELC's jurisdiction.

The 7th Defendant argued the title changed hands in 2001, making the suit time-barred. The plaintiff pleaded fraud and asserted continuous possession, only discovering the alleged fraud when auctioneers appeared on the property. Under section 26 of the Limitation of Actions Act, time does not run in fraud cases until discovery. Whether the plaintiff was in possession, when she discovered the fraud, and whether she executed transfer documents are triable issues that cannot be resolved on a preliminary objection.

The plaintiff discovered persons claiming to be auctioneers on the property and that the property had allegedly been transferred in 2001 and charged to the Bank. If the Bank exercised its statutory power of sale before the title dispute was resolved, the property could pass to third parties, rendering the suit nugatory. The court found it necessary to preserve the status quo on the original parcel and the resultant subdivisions pending hearing and determination of the suit.