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ELCStruck OutELC CASE NO. E110 OF 2025· [2026] KEELC 4964 (KLR)
Krop (Formerly known Titus Kiprop Morogo) v Ali & 2 others (Environment and Land Case E110 of 2025) [2026] KEELC 4964 (KLR)
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·~12 min to read original · ~4 min briefThe bottom line
#The Environment and Land Court struck out a property owner's case against Bank of Africa, ruling that disputes over charges and a bank's power of sale belong in the High Court.
What this practically means
#Executive summary
#The Plaintiff, registered proprietor of L.R. No. 337/5741, Mavoko, sued the 1st, 2nd and 3rd Defendants seeking rescission of a sale agreement dated 31st July 2023, a charge dated 26th July 2023 and a deed of guarantee, plus general damages for fraudulent misrepresentation. He simultaneously sought an injunction restraining the 2nd and 3rd Defendants from selling, transferring or charging the property, alleging that the 2nd Defendant obtained the property through fraudulent misrepresentations, received Kshs 134,257,541 from the 3rd Defendant (the Bank) and appropriated it without paying the purchase price, after which the Bank issued a statutory notice of intention to sell. The 3rd Defendant (Bank) applied to strike out the suit, contending the ELC lacked jurisdiction over a dispute concerning the exercise of statutory power of sale, relying on Bank of Africa v TSS Investment and Co-operative Bank v Kangethe Njuguna, and alternatively that the sale agreement was void for want of its consent under Sections 87 and 88(g) of the Land Act. The 1st Defendant raised a preliminary objection seeking stay or striking out on the basis of an arbitration clause. The court framed jurisdiction as the preliminary issue. Applying the dominant-issue test and the binding Court of Appeal authority that disputes over charges and statutory power of sale fall outside Article 162(2) and concern the High Court's civil jurisdiction, the court held the dispute was commercial and that it lacked jurisdiction. It struck out the suit with costs in terms of prayer 3 of the Bank's application, declining to determine the injunction application and the preliminary objection.
Key legal issues
#01
Whether the Environment and Land Court has jurisdiction over a dispute concerning a sale agreement, charge, deed of guarantee and the chargee's statutory power of sale
Holding
The ELC lacks jurisdiction; the dispute is a commercial/contractual dispute on the nature of the sale and the charge, not a matter relating to the use and occupation of, and title to, land
Reasoning
Relying on Bank of Africa Kenya Ltd v TSS Investment Ltd and Co-operative Bank v Kangethe Njuguna, the court held that mortgages and charges do not relate to the 'use' of land and fall within the High Court's civil jurisdiction. The dominant issue was the validity and enforceability of commercial instruments, not title to land.
p. 13
Legal principles established
#- Where a court finds it lacks jurisdiction, it must down its tools and take no further step in the matter
- In construing whether the ELC has jurisdiction, the consideration must be the dominant issue in the dispute and whether it relates to the environment and the use and occupation of, and title to, land
- A dispute concerning a charge and the chargee's statutory power of sale, being contractual/commercial in nature, falls outside the ELC's jurisdiction
Court orders
#- 1.The suit is struck out with costs in terms of prayer 3 of the application dated 23rd September 2025
- Jurisdiction invoked
- Article 162(2) of the Constitution; Section 13 of the Environment and Land Court Act; Section 150 of the Land Act; Section 101 of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Krop (Formerly known Titus Kiprop Morogo) v Ali & 2 others (Environment and Land Case E110 of 2025) [2026] KEELC 4964 (KLR)", Case Analysis (2026). ELC CASE NO. E110 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4964/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.