Absa Bank Kenya PLC v Benedict Simeon Ondieki Nyatangi

Secured Lending Team Leader in charge of, Collections & Recoveries at Absa Bank Kenya PLC, sworn on even date. 3. The applicant in giving a brief explanation on what led to the filing of the appeal herein and the present application, deponed that vide an application dated 16.09.2025, the respondent sought orders of temporary injunction seeking to restrain the applicant herein from exercising its statutory power of sale over the property known as L.R. No. Pioneer Ngeria/Block 1 (EATEC)/443 (hereinafter referred to as the suit property) 4. That the applicant filed its response to the said application vide the Replying Affidavit dated 13.10.2025, in opposition to the said application for temporary injunction. 5. The said application was heard and determined vide the ruling of the subordinate court delivered on 26.03.2026 by Hon. P.N. Areri and whose effect respondent’s application for was to temporary allow the injunction and restrain the applicant from exercising its statutory power of sale pending the hearing and determination of the main suit in the subordinate court. 6. It is the applicant’s claim that the effect of the ruling of the trial court issued on 26.03.2026 is to unlawfully prevent the applicant from exercising its statutory power of sale over the ELCA Case No. E010 Of 2026 Ruling Page 2

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charged continued suit property default, regardless which of currently the respondent’s stands at Kshs. 3,678,717.45/= which sum continues to accrue interests on a daily basis. The deponent annexed a copy of the respondent’s loan account statement. 7. The applicant further argues that a party should not be allowed to benefit from his own wrong. It is their contention that where a debt is admitted as due and owing and the loan remains unserviced, a court of law ought not to grant injunctive relief. 8. It is the applicant’s claim that aggrieved by the trial court’s ruling issued on 26.03.2026, it has since lodged an appeal against the same vide the Memorandum of Appeal dated 15.04.2026 and the present application. 9. It is therefore the applicant’s contention that unless the orders for stay of proceedings sought is granted, the proceedings in the trial court will advance and the appeal herein will be rendered nugatory to the detriment and prejudice of the applicant. 10. In conclusion, the applicant urged the court to allow the application in the interest of justice. ELCA Case No. E010 Of 2026 Ruling Page 3

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11. The application was opposed. The Respondent filed a Replying Affidavit dated 30th April, 2026 in response to the averments made in the application. 12. The respondent deponed that there was no basis for staying the proceedings in the subordinate court. It is his claim that an order for stay of proceedings is a draconian step that should only be granted in exceptional circumstances, which he avers does not exist in the present claim. 13. It is the respondent’s contention that the subordinate court acted lawfully in the exercise of its discretion in issuing the orders of temporary injunction on 26.03.2026, upon being satisfied that the respondent had met all the requisite conditions for the grant of an order of temporary injunction. 14. It is further his claim that the orders sought in the present application are calculated and aimed at disrupting the course of justice and maintained that the hearing and determination of the main suit in the subordinate/trial court has no bearing on the appeal. 15. The Respondent did also deny owing the applicant the alleged Kshs. 3,678,717/= and avers that he has strictly complied with the terms and conditions of the loan agreement by servicing the loan as agreed. ELCA Case No. E010 Of 2026 Ruling Page 4

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16. In conclusion, he urged the court to dismiss the present application with costs. 17. This court issued directions on 06.05.2026 that the present application be canvassed by way of written submissions. The applicant filed their submissions dated 14.05.2026 while the respondent filed his submissions dated 28.05.2026 together with authorities, which I have read and considered. Analysis and Determination: 18. Having carefully considered the Application and the grounds therein, the Supporting Affidavit and the annexures and the Replying Affidavit thereto, as well as the rival submissions in totality, it is my considered opinion that the issues arising for determination are as follows; i. Whether this jurisdiction to court is vested hear and with the requisite determine the present application as well as the appeal filed herein. ii. Whether an Order for Stay of Proceedings can issue against the proceedings known as Eldoret MCELC Case No. E178 of 2025. iii. 19. Who shall bear the costs of the present Application. Having identified the above issues for determination, I will proceed to discuss the same as hereunder. ELCA Case No. E010 Of 2026 Ruling Page 5

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Whether this court is vested with the requisite jurisdiction to hear and determine the present application as well as the appeal filed herein; 20. The first issue herein seeks to determine the jurisdiction of this court to entertain the present application as well as the appeal filed herein. 21. A question on jurisdiction is the very foundation upon which all judicial proceedings are anchored. Jurisdiction is so integral and central to the legitimacy of the proceedings and any orders of the court that a question on jurisdiction can be raised at any stage even at the appellate stage and where no party raises the same, the court can raise an issue of jurisdiction suo moto. 22. The Court of Appeal in the case of Sinopec International Petroleum Service Corporation v Public Procurement Administrative Review Board & 3 others (Civil Appeal E012 of 2024) [2024] KECA 184 (KLR) (23 February 2024) (Judgment), held as follows:“The question whether an appellate Court can suo moto raise and address a point of law that was not addressed in the lower courts has been addressed by this Court in several decisions. In Harun Meitamei Lempaka v Lemanken Aramat & 2 others [2014] eKLR the Supreme Court cited with approval decided cases affirming that it is firmly ELCA Case No. E010 Of 2026 Ruling Page 6

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settled law that issues of jurisdiction or competence of a court to entertain or deal with a matter before it is very fundamental. It is a point of law and therefore, a rule of court cannot dictate when, and how, such point of law can be raised. Being fundamental and threshold issue of jurisdiction, it can be raised at any stage of the proceedings in any court including this Court. The apex court proceeded to state as follows:(176) Consequently, ……a court of law can rightly raise a legal question of jurisdiction even where no party raises such a question.” 23. It is well settled that a court of law can only exercise the jurisdiction conferred upon it either by the Constitution or statute or both. Where a court of law finds that it lacks the requisite jurisdiction to entertain and/or hear and determine a suit then the court is duty bound to down its tools. 24. The Supreme Court in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, as follows: “A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with ELCA Case No. E010 Of 2026 Ruling Page 7

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counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.” 25. The jurisdiction of this court (the Environment and Land Court) is anchored in Article 162(2) (b) and (3) of the Constitution of Kenya and more specifically in section 13 of the Environment and Land Court Act. 26. Section 13 of the Environment and Land Court Act provides as follows: (1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2)In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes— ELCA Case No. E010 Of 2026 Ruling Page 8

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(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b)relating to compulsory acquisition of land; (c)relating to land administration and management; (d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e)any other dispute relating to environment and land. (3)Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution. (4)In addition to the matters referred to in subsections (1) and (2), the Court shall exercise ELCA Case No. E010 Of 2026 Ruling Page 9

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appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court. 27. The question that therefore follows is whether this court is vested with the requisite jurisdiction to hear and determine the present application and the appeal as filed herein. In determining the jurisdiction of this court, this court is under a duty to consider the issues in contention in the present dispute and ascertain whether the said issues constitute matters relating to the use, occupation and title to land as more specifically provided under section 13 of the Environment and Land Court Act. 28. From the facts and circumstances of this case, it is not in dispute that the relationship between the appellant/applicant and the respondent is that of a chargee- chargor. It is also common ground that the applicant lent the respondent a loan facility and the title of the suit property herein was charged to secure the loan facility. 29. However, the main issues that appears to be in dispute from the facts as contained in the Supporting Affidavit, the Replying Affidavit and the parties’ rival submission are in my considered view as follows; what is the outstanding loan balance, whether or not there was default in the payment and settlement of the loan facility by the respondent as ELCA Case No. E010 Of 2026 Ruling Page 10

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agreed and captured in the loan agreement, whether or not there was proper service of the requisite notices by the applicant to the respondent and lastly, whether or not the applicant is entitled to exercise its statutory power of sale in recovering the loan advanced to the respondent. 30. The Court of Appeal in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [2017] eKLR held that:“25. The respective jurisdictions of the ELC and the High Court are well spelt out by our Constitution. With regard to the ELC, article 162(2) & (3) of the Constitution requires inter alia, that: “Parliament shall establish courts with the status of the High Court to hear and use and determine disputes relating toa)… b)The environment and the occupation of, and title to, land. Emphasis added.” And that (3)Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).” 36.By definition, a charge is an interest in land securing the payment of money or money’s worth ELCA Case No. E010 Of 2026 Ruling Page 11

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or the fulfilment of any condition (see section 2 of the Land Act). As such, it gives rise to a relationship where one person acquires rights over the land of another as security in exchange for money or money’s worth. The rights so acquired are limited to the realization of the security so advanced (see Section 80 of the Land Act). The creation of that relationship therefore, has nothing to do with use of the land (as defined above). Indeed, that relationship is simply limited to ensuring that the chargee is assured of the repayment of the money he has advanced the chargor. 37.Further, section 2 aforesaid recognizes a charge as a disposition in land. A disposition is distinguishable from land use. While the former creates the relationship, the latter is the utilization of the natural resources found on, above or below the land. As seen before, land use connotes the alteration of the environmental conditions prevailing on the land and has nothing to do with dispositions of land. Saying that creation of an interest or disposition amounts to use of the land, is akin to saying that writing a will bequeathing land or the act of signing a tenancy agreement constitute land use. The mere ELCA Case No. E010 Of 2026 Ruling Page 12

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acquisition or conferment of an interest in land does not amount to use of that land …. 38.Consequently, the assertion that a charge constitutes use of land within the meaning of Article 162 of Constitution fails. In addition, the cause of action herein was not the validity of the charge, but a question of accounts. 41.Furthermore, the jurisdiction of the ELC to deal with disputes relating to contracts under Section 13 of the ELC Act ought to be understood within the context of the court’s jurisdiction to deal with disputes connected to ‘use’ of land as discussed herein above. Such contracts, in our view, ought to be incidental to the ‘use’ of land; they do not include mortgages, charges, collection of dues and rents which fall within the civil jurisdiction of the High Court. 42.While exclusive, the jurisdiction of the ELC is limited to the areas specified under Article 162 of the Constitution, Section 13 of the ELC Act and Section 150 of the Land Act; none of which concern the determination of accounting questions. Consequently, this dispute does not fall within any of the areas envisioned by the said provisions.” ELCA Case No. E010 Of 2026 Ruling Page 13

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31. The position of the Court of Appeal in the Patrick Kangethe case has been reiterated in several other cases including in Bank of Africa Kenya Limited & another v TSS Investment Limited & 2 others [2024] KECA 410 (KLR) where the Court of Appeal affirmed the position in Patrick Kangethe case on the issue of jurisdiction in matters touching on a Charge. 32. The Court of Appeal in the case of Patrick Kangethe clearly and unmistakably held that the Environment and Land Court is not vested with the jurisdiction to entertain disputes relating to charges, mortgages or the exercise of the statutory power of sale. 33. Section 13 of the ELC Act and 150 of the Land Act, which specifically outlines the limits of the jurisdiction of the Environment and Land Court makes no provision whatsoever for matters touching on the enforcement of a charge or the exercise of a chargee’s statutory power of sale. 34. Consequently, associating myself with the Court of Appeal decisions aforestated which are binding on me, and guided by the Constitution and the statutory provisions outlined above, it is my finding that this court is not vested with the requisite jurisdiction to entertain the present application as well as the appeal. ELCA Case No. E010 Of 2026 Ruling Page 14

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Conclusion: 35. In view of the foregoing, this court finds that the Notice of Motion Application dated 15th April, 2025 is not merited and is hereby Struck Out. 36. Similarly, the appeal vide the Memorandum of Appeal dated 15th April, 2026 be and is hereby Struck Out for want of jurisdiction. 37. Each party to bear its own costs of the present Application as well as the Appeal. 38. It is so ordered. DATED, SIGNED and DELIVERED at ELDORET this 24th day of SEPTEMBER, 2026. C. K. YANO ELC, JUDGE Ruling delivered in the virtual presence of: Ms. Wameyo holding brief for Mr. Deya for the Appellant. Mr. Wainaina for the Respondent. Court Assistant – Laban ELCA Case No. E010 Of 2026 Ruling Page 15

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