Nyangicha v Baron Capital Limited & another

Submissions of the Parties 3. The Parties submitted orally as directed by the court. The court has considered the said submissions in writing this ruling. Issue for Determination 4. The sole issue arising from the Preliminary Objection is whether this Court has the requisite jurisdiction to hear and determine the dispute herein. Analysis and Determination 5. Jurisdiction is everything and, without it, a court must down its tools. This principle was rmly articulated by the Court of Appeal in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, and has since been consistently rearmed. 6. The jurisdiction of the ELC is constitutionally derived from Article 162(2)(b), which mandates the establishment of a court with the status of the High Court to hear and determine disputes relating to: “ ...The environment and the use and occupation of, and title to, land." 7. This mandate is operationalized by Section 13(2) of the ELC Act, which grants the ELC power to hear and determine disputes: “ ....d. relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land;..." 8. The critical judicial task, therefore, is not to examine the form of the pleadings, but to identify the dominant issue in dispute. 9. The 1st Respondent has relied on the authority of Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 Others [2017] eKLR, to argue that disputes arising from lending transactions and securities fall within the jurisdiction of the High Court. In that decision, the Court of Appeal held that the dispute before it revolved around the tabulation of sums owing and the issuance of statutory notices prior to the exercise of the statutory power of sale. The Court of Appeal further observed that the cause of action was not the charge instrument itself, but the amounts due and owing thereunder, and that the dominant issue was the settlement of amounts owing from the borrowers to the bank arising from a contractual banker–customer relationship. On that basis, the Court held that matters relating to mortgages, charges and collection of dues ordinarily fall within the civil jurisdiction of the High Court. 10. However, a careful reading of that authority demonstrates that the Court of Appeal’s reasoning was anchored on the existence of an undisputed and valid registered charge and a dispute concerning the procedural exercise of contractual rights owing from that charge. The present case stands on a markedly dierent footing. Here, it is not contested that no registered legal charge existed over the suit property. The Applicant’s case is that the 1st Respondent merely held the original title deed as security and never perfected its interest by way of registration. The Applicant further contends that notwithstanding the absence of any lawful proprietary interest, the 1st Respondent caused itself to be registered as the proprietor of the suit property through an unlawful and fraudulent process. 11. This distinction is critical. This case is one of illegal transfer, not one of exercise of the statutory power of sale. The dispute is therefore not about the enforcement of a contractual right arising from a valid https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18603/eng@2025-12-18 2

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security instrument, but about the legality of the 1st Respondent’s acquisition and registration of title to land. The Applicant challenges the very foundation of the 1st Respondent’s claim to ownership and seeks protection against what is alleged to be an unlawful interference with his proprietary rights. 12. From the pleadings and the current ocial search on record, it is evident that the suit property is now registered in the name of the 1st Respondent. The central question for determination is whether that registration was lawfully procured or whether it was tainted by fraud or illegality. That question goes directly to the validity of title and the existence of enforceable interests in land. Such a dispute falls squarely within the scope of Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. 13. Once a dispute calls into question the lawfulness of a transfer of land or the validity of registration of title, it transcends the realm of a mere commercial or contractual disagreement and enters the province of proprietary land rights. The Environment and Land Court is the specialised court established to interrogate and determine such questions. The alleged fraud, if proved, would amount to an unlawful interference with land, a matter over which this Court has clear and exclusive jurisdiction. 14. In the circumstances, this Court is satised that the dominant issue in this suit is not the existence or recovery of a debt, but the proprietary consequences arising from the alleged failure to perfect a security interest and the subsequent impugned transfer and registration of the suit property. The present suit is therefore clearly distinguishable from Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 Others [2017] eKLR. 15. Consequently, the Court nds that the Preliminary Objection challenging its jurisdiction is devoid of merit. Jurisdiction over disputes relating to title to land is expressly conferred upon this Court by the Constitution and statute, and the Court is properly seized of this matter. 16. Accordingly, the Preliminary Objection dated 17th October 2025 is dismissed with costs to the Applicant. The Court hereby arms that it has jurisdiction to hear and determine the present matter. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 18TH DAY OF DECEMBER 2025. M.D. MWANGI JUDGE In the virtual presence of: N/A by parties Court Assistant: Mpoye M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18603/eng@2025-12-18 3

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