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ELCStruck OutELCLC E012 OF 2025· [2026] KEELC 6121 (KLR)

Christine Kathure Rukunga v New House Limited & 2 Others

Environment and Land Court of Kenya at Malindi
1 October 2026
MNMwangi Njoroge
3,680 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a property fraud suit, ruling the real dispute was about money and misrepresentation, not land.

What this practically means

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Executive summary

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The Plaintiff purchased Villa Number 55 on Portion Number 2001, Malindi, from the 1st Defendant in 2013-2014, borrowing Kshs. 11,500,000 from the Interested Party financier and securing the loan by a registered charge. She sued for declarations that the sale and the charge were procured by material misrepresentation and are void, a liquidated money claim of Kshs. 57,784,295.41, general damages, interest and costs, alleging false guarantees of rental income and occupancy. On its own motion the Court raised the question of jurisdiction; no preliminary objection was filed but the Defendants' submissions raised a pure point of law, which the Court treated as such. They argued that the dispute is commercial, concerning accounts on a banker-customer relationship, and that a charge is a disposition, not use of land. The Plaintiff contended the gravamen was the sale, purchase and management of land, with financial claims merely ancillary. Applying the predominant issue test (as adopted in Aketch v Njer from Lydia Nyambura Mbugua), the Court held the dominant issue was whether the property would yield income as promised - a question of accounts and commercial misrepresentation, not of title, use or occupation of land. Following Co-operative Bank v Kangethe Njuguna, the Court found it lacked jurisdiction and struck out the plaint. Notably, despite striking out the suit on the Defendants' jurisdictional objection, the Court ordered the Defendants to bear the costs of the suit.

Key legal issues

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01

Whether the ELC has jurisdiction over a hybrid claim impugning a sale agreement, a charge and claiming liquidated damages

Holding

The Court lacks jurisdiction; the predominant issue is a commercial claim for indemnity based on misrepresentation of commercial lucrativeness, not title, use or occupation of land

Reasoning

Applying the predominant issue test, the Court found no dispute as to the validity of the vendor's title, the use of the land, or occupation in any legally meaningful sense. The live question was whether the property would yield income as promised, a question of accounts and commercial misrepresentation better placed before the High Court.

p. 11
02

Source and exclusivity of jurisdiction of the specialised courts

Holding

The High Court, ELRC and ELC are autonomous courts of equal status with mutually exclusive jurisdiction; jurisdiction flows only from the Constitution or legislation

Reasoning

Relying on Karisa Chengo and Samuel Kamau Macharia, the Court held that Article 165(5)(b) abridges the High Court's unlimited civil jurisdiction by withholding matters within Article 162(2) courts, and a court cannot expand its jurisdiction through judicial craft.

p. 7

Legal principles established

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  • Where a hybrid suit contains issues falling in different superior courts and cannot be severed, jurisdiction lies in the court with jurisdiction over the predominant issue
  • A charge is an interest in land and a disposition, but not use of land; where the cause of action is a question of accounts rather than validity of the charge, the ELC lacks jurisdiction

Court orders

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  1. 1.The suit commenced by way of the plaint dated 24th February 2025 is struck out for lack of jurisdiction
  2. 2.The costs of the suit shall be borne by the Defendants
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, Cap. 8D

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, "Christine Kathure Rukunga v New House Limited & 2 Others", Case Analysis (2026). ELCLC E012 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6121/eng@2026-10-01

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