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ELCAllowedELC E128 of 2024· [2026] KEELC 3406 (KLR)

Shishili Two Thousand Investment Limited v Gichuhi & 2 others (Environment and Land Case E128 of 2024) [2026] KEELC 3406 (KLR)

Environment and Land Court
14 May 2026
EME. K. Makori
1,161 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a bank from a land suit, confirming charge and mortgage disputes belong in the High Court, not the ELC.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (E. K. Makori, J) determines a notice of motion dated September 23, 2025 by the 2nd Defendant (a bank) seeking striking out of the Plaintiff's suit against it on the ground that the suit is solely founded on a charge. The court noted that on July 17, 2025 it had dismissed the 2nd Defendant's preliminary objection on the same jurisdictional issue because, at that early stage, no charge documents or affidavits had been placed before the court. The present application was supported by an affidavit of Andrew Muchina annexing the Charge document dated 31st July 2023 over the suit property, securing KShs. 30,000,000.00 and USD 500,000.00. The Plaintiff opposed, contending that the Bank was a necessary party and that the ELC had jurisdiction. Framing two issues - whether the suit against the 2nd Defendant should be struck out and who should bear the costs - the court applied the Court of Appeal's decision in Bank of Africa Kenya Limited v TSS Investment Limited, which had endorsed Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna, holding that the ELC's jurisdiction covers only disputes connected to the use of land and contracts incidental to that use, and that mortgages, charges and collection of dues and rents fall within the High Court's civil jurisdiction. Numerous ELC decisions to the same effect were catalogued. Concluding that the Plaintiff's suit against the 2nd Defendant was solely based on a charge, the court held it lacked jurisdiction as between those parties, allowed the motion with costs, and struck out the suit against the 2nd Defendant.

Key legal issues

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01

Whether the ELC has jurisdiction over a suit solely founded on a charge against a bank/chargee

Holding

The court lacks jurisdiction; the suit against the 2nd Defendant was struck out.

Reasoning

The court relied on the Court of Appeal decision in Bank of Africa Kenya Limited v TSS Investment Limited, which applied Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna, holding that the ELC's jurisdiction is confined to disputes connected to the use of land and incidental contracts, and that mortgages, charges and collection of dues and rents fall within the High Court's civil jurisdiction. Since the Plaintiff's suit against the 2nd Defendant was solely based on the charge dated 31st July 2023, the court held it lacked jurisdiction as between the Plaintiff and the 2nd Defendant and allowed the striking-out application.

p. 7

Legal principles established

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  • The Environment and Land Court has no jurisdiction over disputes founded solely on a charge, mortgage, or collection of dues and rents; such matters fall within the civil jurisdiction of the High Court.

Court orders

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  1. 1.The motion application dated September 23, 2025 is allowed with costs
  2. 2.The Plaintiff's suit against the 2nd Defendant is struck out

Authorities

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Cases cited (10)

  • Bank of Africa Kenya Limited & another v TSS Investment Limited & 2 others
    (Civil Appeal E055 of 2022) [2024] KECA 410 (KLR)
  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna and 5 others
    [2017] eKLR
  • Kinuthia v Kanyi and another
    (Environment and Land Case E007 of 2023) [2024] KEELC 1625 (KLR)
  • Muyuka and another v Barclays Bank of Kenya and 2 others
    (Environment & Land Case E005 of 2021) [2023] KEELC 16581 (KLR)
  • Thomas Mutuku Kasue v Housing Finance Company Ltd (HFC) and another
    [2021] eKLR
  • Amanye General Suppliers Limited and another v Rafiki Microfinance Bank Ltd & another
    (Environment and Land Case E078 of 2024) [2024] KEELC 13207 (KLR)
  • Masumbuko v National Bank Kenya Ltd
    (Environment and Land Case 113 of 2020) [2024] KEELC 5454 (KLR)
  • Dr. Martin Luther MC Were v James Mabango Ambundo
    (Environment and Land Case E211 of 2021)
  • Re Estate of Aloysius Ndungu Gakunga (Deceased)
    [2019] KEHC 9273 (KLR)
  • Mukisa Biscuit Case
Jurisdiction invoked
Article 162(2) of the Constitution / Environment and Land Court Act (implied - the court determined the limits of its own jurisdiction over charge and mortgage disputes)

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, "Shishili Two Thousand Investment Limited v Gichuhi & 2 others (Environment and Land Case E128 of 2024) [2026] KEELC 3406 (KLR)", Case Analysis (2026). ELC E128 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3406/eng@2026-05-14

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