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ELCStruck OutNot stated in the judgment as provided· [2026] KEELC 2364 (KLR)

Duncan & 2 others v Family Bank Limited & another (Environment and Land Case E026 of 2021) [2026] KEELC 2364 (KLR)

Environment and Land Court
28 April 2026
MMM.D. Mwangi
1,083 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out landowners' bid to stop a bank auction, ruling that charge disputes belong in the High Court, not the ELC.

What this practically means

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Executive summary

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The Plaintiffs sued by plaint dated 28th April 2021 seeking a permanent injunction restraining the Defendants from auctioning L.R No. Ngong/Ngong/59915 and a declaration that the title is null and void for having been irregularly and fraudulently obtained through a subdivision of the mother title before a grant was petitioned for the estate of the deceased registered owner. The 1st Defendant defended on the basis that it advanced a Kshs. 10,000,000 loan facility in 2014 to Erick Wakaba Kinuthia, secured by a charge over the suit property executed with spousal consent; the chargor defaulted, statutory notices issued, and the property was advertised for sale. Previous suits by the chargor (Kajiado ELCC 562 and 566 of 2017) were dismissed, and the chargor was not joined to the present suit. The court sua motu examined its own jurisdiction. Relying on Article 162(2)(b), Section 13(5) of the ELC Act, the Supreme Court's decision in Republic v Karisa Chengo, and the Court of Appeal's decision in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, the court held that a charge is an interest in land limited to realization of security and does not concern 'use' of land; mortgage and charge disputes fall within the High Court's civil jurisdiction. Since the gravamen of the suit was to forestall the chargee's statutory power of sale, the court found it lacked jurisdiction, could only down its tools, and struck out the suit with costs to the Defendants. All relief sought was refused on jurisdictional grounds, without any determination on the merits.

Key legal issues

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Whether the ELC has jurisdiction over a dispute whose gravamen is a chargee's statutory power of sale

Holding

The ELC lacks jurisdiction; mortgage and charge disputes fall within the High Court's civil jurisdiction

Reasoning

Article 162(2)(b) confines the ELC to environment and land use, occupation and title disputes. A charge is an interest in land limited to realization of security, not 'use' of land. Following the Court of Appeal in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, contracts incidental to the ELC's jurisdiction do not include mortgages and charges. The Plaintiffs' suit sought to restrain exercise of the statutory power of sale, so the court struck it out.

p. 3

Legal principles established

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  • The ELC's jurisdiction is constitutionally limited and cannot be expanded by judicial craft
  • A court without jurisdiction must down its tools
  • The mere involvement of land does not automatically confer jurisdiction on the ELC

Court orders

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  1. 1.The suit is struck out for lack of jurisdiction
  2. 2.Costs of the suit are awarded to the Defendants
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

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, "Duncan & 2 others v Family Bank Limited & another (Environment and Land Case E026 of 2021) [2026] KEELC 2364 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2364/eng@2026-04-28

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