Marifa Development Ltd & another v Middle East Bank Kenya Ltd & another (Environment and Land Case 40 of 2006) [2026] KEELC 3676 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over a claim founded on a bridging loan secured by a charge over land, with allegations of irregular sale of the charged properties
The Court has jurisdiction; the predominant purpose of the dispute is land-related, falling under the Land Act, 2012 and Section 13 of the ELC Act.
The Defendant argued the dispute was purely commercial for the High Court under Article 165. The Court applied the predominant purpose test from Butler v Redhill Heights, noting the claim is founded on a bridging loan of Kshs. 125,000,000 secured by charging the plaintiffs' properties, allegedly sold by private treaty without their knowledge. Section 150 of the Land Act, 2012 confers jurisdiction over disputes concerning land under that Act on the ELC. The predominant issue being ownership of land from an alleged fraudulent sale before the statutory power of sale arose, the objection failed.
Res judicata in respect of Nairobi HCCC No. 75 of 2000 (Ringera J)
Res judicata does not apply; the former suit was dismissed for want of prosecution, not heard and finally decided on the merits.
Section 7 of the Civil Procedure Act requires that the matter have been heard and finally decided. Although the parties and issues overlapped, the extract of the Ringera J judgment shows the suit was dismissed because the plaintiff did not appear or prosecute it, with no evidence supporting the claim. A dismissal for want of prosecution is not a determination on the merits, so the claims were not conclusively decided and the doctrine was not triggered.
Limitation of actions bar against claims arising between 1998 and 2005
The objection cannot succeed because the Court had already, in rulings by Naikuni J on 16th October 2023 and 20th February 2024, granted leave to amend, join a new party and bring the 1st Plaintiff's claim out of time.
The Defendant argued the causes of action arose between 1998 and 2005, exceeding the 6-year contract and 12-year land limitation periods. However, the record showed leave to bring the claim out of time had already been granted in prior rulings; no appeal was filed against the 16th October 2023 decision, and the 21st February 2024 ruling is the subject of pending Mombasa Civil Appeal No. E199 of 2025. The Court held it lacked jurisdiction to revisit issues already decided and sub judice on appeal.
Legal principles established
#- Where a dispute involves both land and commercial elements, jurisdiction is determined by the predominant purpose test; a dispute over ownership of land arising from an alleged fraudulent sale of charged properties and a claim that sale preceded the statutory power of sale falls within the ELC's jurisdiction.
- A suit dismissed for want of prosecution is not heard and finally decided on the merits for purposes of res judicata under Section 7 of the Civil Procedure Act.
- Where the court has already granted leave to bring a claim out of time, and an appeal on that decision is pending before the Court of Appeal, the court lacks jurisdiction to revisit the same issue by way of a preliminary objection.
Court orders
#- 1.The Notice of Preliminary Objection dated 15th December 2025 is dismissed
- 2.Costs of the Preliminary Objection awarded to the Plaintiffs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Sections 13(1) and 13(2)(d) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marifa Development Ltd & another v Middle East Bank Kenya Ltd & another (Environment and Land Case 40 of 2006) [2026] KEELC 3676 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3676/eng@2026-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.