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ELCAllowedNot stated in judgment· [2026] KEELC 1664 (KLR)

Amwayi v Karuigi & 2 others; Amwayi (Interested Party) (Environment and Land Case E048 of 2025) [2026] KEELC 1664 (KLR)

Environment and Land Court
24 March 2026
CNC.K. NZILI
1,398 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a counterclaim about a loan and charge, confirming such commercial disputes belong in the High Court.

What this practically means

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Executive summary

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The plaintiff raised a preliminary objection dated 23/10/2025 arguing that the Environment and Land Court lacks jurisdiction to determine the 1st defendant's counterclaim dated 16/10/2025, because the counterclaim concerns a charge over the suit property and is a commercial dispute outside Section 13 of the Environment and Land Court Act. The counterclaim sought dismissal of the plaintiff's suit, a declaration that the plaintiff must liquidate his share of a Kshs. 6,600,000 loan, refund of Kshs. 2,299,077, remittance of monthly premiums of Kshs. 240,264.50 to the 1st defendant's Co-operative Bank account, and retention of a portion of the suit property worth Kshs. 10,948,599.52. The plaintiff, in a reply dated 5/1/2026, denied being party to the loan agreement or charge. In submissions, the plaintiff relied on Bank of Africa v TSS Investment and the Lillian S 'down tools' doctrine, while the 1st defendant argued a counterclaim is a suit within a suit properly before the court under Order 7 Rule 7, and that if the court lacked jurisdiction over the counterclaim it lacked jurisdiction over the suit too. The court, applying Mbuki v Waweru and Co-operative Bank v Njuguna, held that the predominant issue in the counterclaim was enforcement of the charge, a commercial dispute for the High Court's Commercial Division. The preliminary objection was upheld and the counterclaim struck out with costs on 24 March 2026.

Key legal issues

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01

Whether the ELC has jurisdiction over the 1st defendant's counterclaim arising from a loan facility and charge over the suit property

Holding

The court lacks jurisdiction; the predominant issue in the counterclaim is enforcement of the charge, a commercial dispute for the High Court.

Reasoning

Section 13 of the Environment and Land Court Act defines the court's jurisdiction over disputes relating to land and instruments granting enforceable interests in land. The counterclaim was mainly based on the loan amount, payment of premiums, and default of the loan agreement - money lent, due and owing. Following Co-operative Bank of Kenya v Njuguna and Bank of Africa v TSS Investment, disputes over charges and mortgages fall outside ELC jurisdiction and belong to the High Court's Commercial Division.

p. 3

Legal principles established

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  • The Environment and Land Court is not vested with jurisdiction to entertain disputes relating to charges, mortgages, or the statutory power of sale.
  • A court without jurisdiction must down its tools.

Court orders

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  1. 1.The preliminary objection is upheld; the court lacks jurisdiction to hear and determine the 1st defendant's counterclaim
  2. 2.The counterclaim, being an independent suit, is struck out
  3. 3.The counterclaim is struck out with costs
Jurisdiction invoked
Article 162(2)(b) of the Constitution read together with Section 13 of the Environment and Land Court Act, No. 19 of 2011

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, "Amwayi v Karuigi & 2 others; Amwayi (Interested Party) (Environment and Land Case E048 of 2025) [2026] KEELC 1664 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1664/eng@2026-03-24

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