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ELCStruck OutNot stated in judgment (notice of motion dated October 7, 2025)· [2026] KEELC 2348 (KLR)

Rehema Academy Limited v Sidian Bank Limited & another (Land Case E033 of 2025) [2026] KEELC 2348 (KLR)

Environment and Land Court
16 April 2026
2,256 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Kisii Environment and Land Court struck out an injunction bid over a charged property, ruling that charge and bank sale disputes belong in the High Court, not the ELC.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the Environment and Land Court at Kisii by notice of motion dated October 7, 2025, under sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rules 1 and 2 of the Civil Procedure Rules, seeking a temporary injunction restraining the defendants from alienating, advertising, selling, transferring or interfering with KISII TOWN BLOCK III/203 and the two-storey building thereon, pending the hearing of the suit, plus costs. The application was grounded on the death, on 5th February 2025, of a director actively involved in the company's management, with succession proceedings pending, and on the Applicant's assertion that it was willing and able to redeem the loan arrears owed to the 1st Defendant/Respondent bank. The 1st Respondent, through the replying affidavit of its legal officer Jackline Ndung'u, opposed the application, contending the dispute was commercial in nature, not founded on Article 162(2)(b) of the Constitution, and that the ELC lacked jurisdiction. The court first resolved jurisdiction, as the parties litigated the motion by written submissions. Reviewing the parties' authorities, the court adopted the Court of Appeal's decision in Cooperative Bank of Kenya v Patrick Kangethe Njuguna, holding that a charge is a disposition securing repayment of money and has nothing to do with the use of land, and that Section 13 contracts jurisdiction covers only contracts incidental to land use, excluding mortgages and charges. Noting the Applicant's own pleading that a Kshs 15,000,000 facility was secured by a charge whose power of sale had crystallized, the court found the dispute was one of debt recovery for the High Court. It therefore struck out the application with costs in the cause and vacated the subsisting interlocutory injunction orders, without addressing the merits.

Key legal issues

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01

Jurisdiction of the ELC over charge/mortgage and statutory power of sale disputes

Holding

The ELC lacks jurisdiction; such disputes are commercial matters for the High Court, following Cooperative Bank of Kenya v Patrick Kangethe Njuguna.

Reasoning

The court applied the Court of Appeal's binding holding that a charge, though a disposition of land, has nothing to do with the use of land within Article 162(2)(b). Contracts within Section 13 of the ELC Act must be incidental to land use and exclude mortgages and charges. The Applicant's debt to the 1st Respondent arose from a Kshs 15,000,000 loan secured by a charge whose power of sale had crystallized; the substance was debt recovery, so jurisdiction failed and the merits were not addressed.

p. 5
02

Whether the death of a director and pending succession proceedings justified restraining the chargee's sale

Holding

Not determined; the court declined to reach the merits after finding no jurisdiction.

Reasoning

The Applicant argued the director's death and pending succession, and its willingness to redeem the loan, warranted an injunction. The 1st Respondent countered that the applicant's obligations as a juridical entity are distinct from the director's estate and that awaiting succession was futile. The court held jurisdiction must be resolved first and, finding none, did not address the merits of the injunction.

p. 5

Legal principles established

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  • A charge is an interest in land securing repayment of money; its creation relates to realization of security, not to use of land, so charge and mortgage disputes fall within the High Court's civil jurisdiction, not the ELC's.
  • Section 13 contracts jurisdiction of the ELC extends only to contracts incidental to the use of land and does not include mortgages, charges, or collection of dues and rents.
  • A court without jurisdiction produces a nullity ab initio.

Court orders

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  1. 1.The application dated 7th October, 2025, be struck out with costs in the cause
  2. 2.The orders of injunction which were subsisting pending the determination of the application are hereby vacated and or discharged

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Constitution of Kenya, 2010Articles 162(2)(b), 162(2), 165(5)
  • Environment and Land Court ActSection 13(2)(d) and (g)
  • Land ActSections 2, 80, 150; No. 6 of 2012
  • Statute Law (Miscellaneous Amendments) ActSection 2; No. 25 of 2015
  • Employment and Labour Relations Court ActSection 12

Cases cited (6)

  • Phoenix of E.A. Assurance Company Limited versus S. M. Thiga t/a Newspaper Service
    [2019] eKLR
  • Stephen Kibowen v Agricultural Finance Corporation
    [2015] KEELC 592 (KLR)
  • Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Limited & another
    [2018] KEELC 1599 (KLR)
  • Bank of Africa Kenya Limited & Another vs TSS Investments & 2 Others
    (2024) KECA 410 (KLR)
  • Cooperative Bank of Kenya versus Patrick Kangethe Njuguna & 5 others
    [2017] KECA 79 (KLR)
  • Paramount Bank Limited vs. Vaqvi Syed Qamara & another
    [2017] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (court held it LACKS jurisdiction over the charge dispute)

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, "Rehema Academy Limited v Sidian Bank Limited & another (Land Case E033 of 2025) [2026] KEELC 2348 (KLR)", Case Analysis (2026). Not stated in judgment (notice of motion dated October 7, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2348/eng@2026-04-16

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