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ELCOtherEnvironment and Land Appeal 55 of 2010· [2026] KEELC 4379 (KLR)

Balongo & another v Municipal Council of Busia & another (Environment and Land Appeal 55 of 2010) (10 May 2026) (Directions) [2026] KEELC 4379 (KLR)

Environment and Land Court
10 May 2026
LWL N Waithaka
952 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to transfer charged land to a judgment holder because the bank holding the charge was never joined to the case.

What this practically means

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Executive summary

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This is a directions ruling by L. N. Waithaka, J of the Environment and Land Court at Busia in respect of a notice of motion dated 3rd October 2025 brought by the applicants under Order 22 Rule 82 and Order 51 Rule 1 of the Civil Procedure Rules. The applicants, decree holders following a judgment delivered on 26th January 2023, sought orders that the Land Registrar Busia County and the CEO of the National Land Commission show cause why the 1st applicant has not been registered as owner of Plot No. Busia/Municipality/527 following cancellation of the 2nd respondent's name. The applicants contended that the Land Registrar cancelled the 2nd respondent's name but the 2nd respondent failed to surrender the original certificate of lease, and blamed the Land Registrar and the CEO, NLC for non-compliance. In opposition, the 2nd respondent swore that the title is in the possession of Fina Bank Limited, which holds a registered legal charge over the plot that has not been discharged, and that the Land Registrar and CEO, NLC were not parties to the suit. The court held that a chargee's legal interest, protected by Sections 90 to 93 of the Land Act, cannot be affected by court orders made without the bank being joined; any such order would be a nullity, citing DT Dobie & Company (Kenya) Ltd v Muchina and Kenya Commercial Bank Ltd v Kenya Planters Co-operative Union Ltd. The court declined to issue the orders without the third party's participation, directed service of the application on the bank or any other interested third party, required a response within 14 days of service, and fixed the matter for mention on 6th July 2026. No costs order was made.

Key legal issues

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01

Effect of non-joinder of a chargee on orders for registration of the decree holder

Holding

The court declined to issue the orders sought because the suit plot was encumbered by a legal charge in favour of Fina Bank Limited, which was not a party to the suit and whose interests would be affected

Reasoning

The 2nd respondent deposed that the original certificate of lease is held by Fina Bank Limited, which has a registered legal charge not yet discharged. Applying the principle that a chargee has a protected legal interest under Sections 90–93 of the Land Act, the court held that orders affecting the bank's rights without joinder would be a nullity. It therefore directed service of the application on the bank or any other interested third party before further orders.

p. 2

Legal principles established

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  • A court cannot make orders affecting a bank's rights as chargee over charged land without the bank being joined as a party; any such order is a nullity

Court orders

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  1. 1.The applicant is directed to serve the application on the bank or whichever third party might have an interest in the suit plot who was not a party to the suit
  2. 2.Upon service, such person shall file their response to the application within 14 days of service
  3. 3.The matter to be mentioned on 6th July 2026 to confirm compliance and for further directions

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 82
  • Civil Procedure RulesOrder 51 Rule 1
  • Land ActSections 90-93

Cases cited (2)

  • DT Dobie & Company (Kenya) Ltd v Muchina
    2 KLR 1
  • Kenya Commercial Bank Ltd v Kenya Planters Co-operative Union Ltd
    2017 eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over the appeal and execution/enforcement of its decree; application brought under Order 22 Rule 82 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Balongo & another v Municipal Council of Busia & another (Environment and Land Appeal 55 of 2010)  (10 May 2026) (Directions) [2026] KEELC 4379 (KLR)", Case Analysis (2026). Environment and Land Appeal 55 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4379/eng@2026-05-10

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