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ELCStruck OutELC LC E375 OF 2025· [2026] KEELC 4751 (KLR)

Nguyo v Watts Auctions & 2 others (Land Case E375 of 2025) [2026] KEELC 4751 (KLR)

Environment and Land Court
23 July 2026
MCMbogo C.G.
1,760 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan land court struck out a borrower's lawsuit because an identical case was already pending in the High Court, which alone can hear challenges to a bank's sale of charged property.

What this practically means

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Executive summary

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The 1st defendant, African Banking Corporation Limited, brought a notice of motion dated 4th December 2025 under Sections 1A, 1B, 3A, 6 and 63(e) of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules seeking striking out of the plaint dated 25th July 2025 on two grounds: that the suit was sub judice, being materially identical to HCCOMM No. E510 of 2025 (Twenty Twenty Ventures & James Murigu Nguyo v African Banking Corporation Limited & Watts Auctioneers) pending before the High Court commercial division, and that the Environment and Land Court lacked jurisdiction over claims challenging the statutory power of sale arising from a commercial charge. The plaintiff/respondent opposed through a replying affidavit sworn on 12th December 2025, denying any involvement in or instructions over the High Court suit and asserting that the substratum of the dispute was land and title, within this court's jurisdiction. The applicant filed a further affidavit showing a firm of advocates had filed a notice of change of advocates representing both plaintiffs in the High Court matter. The court framed two issues: whether the suit was sub judice and whether the court had jurisdiction. Applying Section 6 of the Civil Procedure Act and the Supreme Court's Advisory Opinion formulation of the sub judice test, the court found the same parties, the same suit property (LR No. 209/8524/102) and the same core issue (statutory power of sale) were before the earlier High Court suit, and held the present suit offended Section 6 and was a gross abuse of the court process. Following Cooperative Bank of Kenya Limited v Njuguna, the court further held it lacked jurisdiction over claims challenging statutory power of sale emanating from charges, that jurisdiction resting with the High Court. The motion was allowed; the plaint was struck out with costs to the defendant/applicant.

Key legal issues

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01

Whether the suit is sub judice under Section 6 of the Civil Procedure Act

Holding

Yes; the suit offends Section 6 and is a gross abuse of the court process, as an identical suit (HCCOMM No. E510 of 2025) between the same parties over the same suit property and the same statutory power of sale was earlier pending before the High Court commercial division.

Reasoning

The court compared the present plaint with the application dated 1st August 2025 in HCCOMM No. E510 of 2025 and found the same subject property (LR No. 209/8524/102) and the same principal issue, the statutory power of sale. Applying Section 6 and the Supreme Court's formulation of the sub judice test, all elements were met: same parties, same subject matter, earlier pending suit before a court of competent jurisdiction.

p. 7
02

Whether the ELC has jurisdiction over claims challenging the statutory power of sale

Holding

No; following Cooperative Bank of Kenya Limited v Njuguna & 5 others, jurisdiction over such claims, being rooted in commercial charges, rests with the High Court.

Reasoning

The court adopted the Court of Appeal's decision that the ELC cannot entertain claims challenging statutory power of sale arising from charges. The dispute emanated from a commercial loan from African Banking Corporation Limited, so jurisdiction belonged to the High Court, notwithstanding the plaintiff's contention that the substratum was land and title.

p. 8

Legal principles established

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  • Where two or more suits between the same parties over the same subject matter are pending before courts of competent jurisdiction, the suit filed later must await determination of the earlier suit under Section 6 of the Civil Procedure Act.
  • The Environment and Land Court lacks jurisdiction to determine claims challenging the statutory power of sale emanating from charges; that jurisdiction rests with the High Court.

Court orders

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  1. 1.The plaint dated 25th July, 2025 is struck out
  2. 2.Costs of the application and suit to the defendant/applicant
Jurisdiction invoked
Sections 1A, 1B, 3A, 6 and 63(e) of the Civil Procedure Act 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, "Nguyo v Watts Auctions & 2 others (Land Case E375 of 2025) [2026] KEELC 4751 (KLR)", Case Analysis (2026). ELC LC E375 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4751/eng@2026-07-23

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