Silas Simeri Opetu T/A Malaba Security Services v National Bank of Kenya & 2 Others

same. However, the failure by a party to file submissions does not relieve the Court of its constitutional and statutory obligation to determine whether it has jurisdiction to entertain the dispute. 3. Jurisdiction is a threshold issue which may properly be considered by the Court on its own motion. The Court shall therefore determine the issue on the basis of the pleadings on record, the applicable law and the submissions and authorities filed by the Defendant. THE PLEADINGS 4. The Plaintiff commenced these proceedings by an Amended Plaint dated 17th May 2024. The Plaintiff describes himself as the registered proprietor TESO/ANGOROMO/3487, of measuring L.R. No. SOUTH approximately 0.22 hectares. 5. The substance of the Plaintiff’s claim is that he charged the said property to the 1st Defendant as security for a loan facility. In the Amended Plaint, the Plaintiff states that the loan advanced was Kshs.35,000,000/= and that he had paid BUSIA ELC LC NO. E006 OF 2024 – RULING Page 2 of 15

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Kshs.15,000,000/= which, according to him, had not been credited to his account. 6. The Plaintiff further complains that the 1 st Defendant commenced steps to realize the security without complying with the requisite statutory notices. He also challenges the intended sale of the property, including the alleged failure to undertake a valuation before the intended auction. He contends that although the auction did not take place, there was a possibility of the property being transferred to a third party. 7. The substantive reliefs sought by the Plaintiff include permanent injunctions restraining the 1st Defendant and its agents from selling, advertising, transferring, alienating or otherwise interfering with the suit property; an injunction against the 3rd Defendant from effecting a transfer of the property; a declaration that the purported auction was null and void; and an order for accounts between the Plaintiff and the 1st Defendant. THE DEFENDANT’S SUBMISSIONS BUSIA ELC LC NO. E006 OF 2024 – RULING Page 3 of 15

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8. The Defendant submits that the Court lacks jurisdiction to entertain the suit because the dispute principally concerns the exercise of a chargee’s statutory power of sale. The Defendant submits that the mere fact that the security over which the dispute has arisen is land does not, of itself, confer jurisdiction upon the Environment and Land Court. 9. The 1st Defendant relies principally on Section 13 of the Environment and Land Court Act and the decision of the Court of Appeal in Co-operative Bank of Kenya Limited v Patrick Kang’ethe Njuguna & 5 Others, Civil Appeal No. 83 of 2016 [2017] KECA 79 (KLR). It is submitted that the Court of Appeal settled the question that disputes concerning mortgages, charges, collection of dues and the exercise of a statutory power of sale fall within the ordinary civil jurisdiction and not the jurisdiction of the Environment and Land Court. 10. The 1st Defendant further relies on Bank of Africa Kenya Limited & Another v TSS Investment Limited & 2 Others, Civil Appeal No. E055 of 2022 [2024] KECA 410 (KLR), for the proposition that the jurisdiction of the Environment and Land Court is concerned with disputes BUSIA ELC LC NO. E006 OF 2024 – RULING Page 4 of 15

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relating to the use, occupation and title to land, and does not extend to disputes whose dominant character is the enforcement of a charge. 11. The 1st Defendant also cited County Government of Kakamega & Another v Nyandieki & 4 Others [2025] KEELC 6058 (KLR) and Aly Enterprises Limited v Absa Bank Kenya PLC & 5 Others; Mafuta Products Limited & Another (Interested Parties) [2025] KEELC 7685 (KLR) in support of its submissions. The Defendant consequently urges the Court to find that the suit is improperly before it and to strike it out for want of jurisdiction. ISSUE FOR DETERMINATION 12. Having considered the pleadings and the submissions filed by the Defendant, the sole issue for determination is: Whether this Court has jurisdiction to entertain the Plaintiff’s suit. ANALYSIS AND DETERMINATION 13. Jurisdiction is everything. Where a court acts without jurisdiction, it cannot make one more step in the proceedings. The Court of Appeal restated this fundamental principle in BUSIA ELC LC NO. E006 OF 2024 – RULING Page 5 of 15

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Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, where it held that: “A question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter was then obliged to decide the issue right away on the material before it. Jurisdiction was everything. Without it, a court had no power to make one more step. Where a court had no jurisdiction, there continuation of would be proceedings no basis pending for a other evidence. A court of law downed tools in respect of the matter before it the moment it held the opinion that it was without jurisdiction.” 14. The jurisdiction of the Environment and Land Court is principally founded upon Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. The Court has jurisdiction over disputes relating to the environment and the use and occupation of, and title to, land, together with matters falling within the statutory jurisdiction conferred upon it. BUSIA ELC LC NO. E006 OF 2024 – RULING Page 6 of 15

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15. The question, however, is not simply whether the dispute has some connection with land. The Court must examine the real nature and substance of the dispute and determine the dominant issue arising from the pleadings. 16. In Co-operative Bank of Kenya Limited v Patrick Kang’ethe Njuguna & 5 Others [2017] KECA 79 (KLR), the Court of Appeal considered a dispute arising from a charge over land and held that: “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”. The jurisdiction of the Environment and Land Court did not extend to disputes concerning mortgages, charges, BUSIA ELC LC NO. E006 OF 2024 – RULING Page 7 of 15

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collection of dues and the exercise of a statutory power of sale. The Court emphasized that Section 13 of the Environment and Land Court Act must be understood within the constitutional remit of the Court and that a contract merely connected to land does not, without more, bring the dispute within the jurisdiction of the Environment and Land Court. 17. The court further held in Co-operative Bank of Kenya Limited v Patrick Kang’ethe Njuguna & 5 Others [2017] KECA 79 (KLR that” “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. On the other hand, the jurisdiction of the High Court over accounting matters is without doubt, for under BUSIA ELC LC NO. E006 OF 2024 – RULING Article 165(3) of Page 8 of 15 the

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Constitution provides inter alia, that; 1. subject to clause (5), the High Court shall have unlimited original jurisdiction in criminal and civil matters. For the above reasons, the appellant’s objection on jurisdiction was rightly dismissed.” 18. The same position was reaffirmed by the Court of Appeal in Bank of Africa Kenya Limited & Another v TSS Investment Limited & 2 Others [2024] KECA 410 (KLR). The Court held that: “The issues in contention in the suit, and the purpose for which the respondents moved the trial court for the injunctive relief sought and granted in the impugned ruling, were intended to forestall the 1st appellant’s exercise of its statutory power of sale over the suit properties based on the alleged tenancy relationship with the 3rd respondent. They were not matters relating to the environment, the use and occupation, the title to land as contemplated in article 162 of the Constitution, section 13 of the Environment & BUSIA ELC LC NO. E006 OF 2024 – RULING Page 9 of 15

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Land Court Act, and section 150 of the Land Act. Such matters could only be subject to litigation between the 1st and 2nd respondents as lessees, and the 3rd respondent as lessor. The Environment and Land Court only had jurisdiction to deal with disputes connected to “use” of land and contracts incidental to the “use” of land, which did not include mortgages, charges, collection of dues and rents which fell within the civil jurisdiction of the High Court. Moreover, a charge was a disposition that had no direct contractual relation to “use” (by a tenant or licensee) as in the instant case, of a chargor’s land. The trial court had no jurisdiction to entertain the respondents’ suit as pleaded.” 19. The distinction is important. A dispute may involve registered land and yet not be a dispute over title to land. Conversely, a dispute arising from a transaction involving land may properly fall within the jurisdiction of the Environment and Land Court where the substantive relief sought concerns ownership, BUSIA ELC LC NO. E006 OF 2024 – RULING Page 10 of 15

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registration, cancellation of title or another matter falling squarely within Article 162(2)(b) of the Constitution. 20. The 1st Defendant’s reliance on Aly Enterprises Limited v Absa Bank Kenya PLC & 5 Others [2025] KEELC 7685 (KLR) does not alter the position. In that case, the Court considered the predominant nature of the dispute and found that the substantive reliefs sought concerned ownership, title and registration of land. The decision therefore illustrates the importance of examining the actual reliefs sought rather than merely identifying the transaction from which the dispute originated. 21. In the present matter, the Plaintiff does not challenge the validity of his title to L.R. No. South Teso/Angoromo/3487, nor does he ask this Court to determine competing ownership rights over the property. His ownership of the property is, in fact, the basis upon which the property was offered as security to the 1st Defendant. 22. The gravamen of the Plaintiff’s complaint is that the 1 st Defendant, as chargee, is seeking to realize its security and that it allegedly failed to BUSIA ELC LC NO. E006 OF 2024 – RULING comply with the statutory Page 11 of 15

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requirements preceding the exercise of the power of sale. The Plaintiff disputes, among other things, the amount allegedly due, asserts that payments made were not credited, challenges the notices issued, questions the valuation of the property and seeks to restrain the intended sale. 23. The prayers in the Amended Plaint reinforce this conclusion. The principal relief sought is an injunction restraining the 1 st Defendant and its agents from selling or otherwise dealing with the property pursuant to the charge. The declaration sought regarding the purported auction is similarly directed at the process of realization of the security. The prayer for accounts arises from the loan and charge relationship between the Plaintiff and the 1st Defendant. 24. The prayer directed at the 3 rd Defendant, seeking to restrain registration of a transfer to a third party, is consequential to the intended exercise of the 1 st Defendant’s power of sale. It does not transform the underlying dispute into one concerning title or registration in the sense contemplated under Article 162(2)(b) of the Constitution. BUSIA ELC LC NO. E006 OF 2024 – RULING Page 12 of 15

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25. The fact that the dispute concerns a parcel of registered land is therefore not determinative. What is determinative is the substance of the controversy. In this case, the Court finds that the dominant character of the dispute is the enforcement of a charge and the exercise of the chargee’s statutory power of sale, rather than the use, occupation or title to land. 26. The Court is also alive to the provisions of Section 150 of the Land Act, which confer jurisdiction upon the Environment and Land Court and subordinate courts empowered by written law in disputes concerning land under the Act. However, that provision cannot be read in isolation or as conferring upon this Court unlimited jurisdiction over every dispute arising from a transaction in which land is used as security. The constitutional allocation of jurisdiction under Article 162(2) (b), as interpreted by the binding decisions of the Court of Appeal in Co-operative Bank and Bank of Africa, remains decisive. 27. Consequently, the fact that the Plaintiff’s claim is anchored upon a parcel of land does not confer jurisdiction upon this Court where, as here, the real dispute is the alleged BUSIA ELC LC NO. E006 OF 2024 – RULING Page 13 of 15

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indebtedness, the validity and compliance of statutory notices and the threatened exercise of the chargee’s power of sale. 28. The Court therefore finds that the present proceedings fall outside the jurisdiction of the Environment and Land Court. Having reached that conclusion, the Court cannot properly proceed to determine the merits of the Plaintiff’s complaints concerning the amount due, the alleged payments, the validity of the statutory notices, valuation or the intended auction. 29. As jurisdiction cannot be conferred upon a court by consent, acquiescence or the manner in which parties frame their submissions, the absence of a challenge to jurisdiction by the other parties would not cure the want of jurisdiction established herein. DISPOSITION 30. In the circumstances, the Court makes the following orders: a) The suit is hereby struck out for want of jurisdiction. b) The Plaintiff shall bear the costs of the suit payable to the 1st Defendant. BUSIA ELC LC NO. E006 OF 2024 – RULING Page 14 of 15

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31. It is so ordered. Ruling dated, signed and delivered in open Court on this 30th day of September 2026. C. MUGAMBI JUDGE 30TH SEPTEMBER 2026 BUSIA ELC LC NO. E006 OF 2024 – RULING Page 15 of 15

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