Introduction
1. This ruling addresses a preliminary issue regarding the jurisdiction of this Court to hear and determine the present suit. The proceedings are anchored upon a Plaint dated the 27th day of February 2025 , and formally filed before this Court on the 28th day of February 2025. The Plaintiff instituted the suit against the 1st Defendant, a registered financial institution , and the 2nd Defendant, who is her spouse.
2. The crux of the Plaintiff's claim revolves around five distinct parcels of land, namely L.R NO. Kajiado/Kaputiei North/121510, 121511, 121512, 121513, and 121514. The Plaintiff avers that she is a co-owner, beneficial owner, and an active contributor to the purchase and development of the said properties, which she asserts constitute matrimonial property. The dispute arose in or about July 2024, when the Plaintiff allegedly stumbled upon a notice from the 1st Defendant advertising the five subject properties for possible sale. Consequently, the Plaintiff alleges that the 1st and 2nd Defendants are attempting to irregularly and illegally dispose of, sell, or transfer the aforementioned parcels of land.
3. In particularizing her grievances, the Plaintiff asserts that she neither executed any charge nor provided any spousal consent to encumber the properties, alleging further that her signatures or marks were forged by the 1st Defendant. The Plaintiff additionally contends that the 1st Defendant failed to issue the mandatory forty-day statutory notice as required under Section 96(2) and (3) of the Land Act, 2012, relating to a legal charge, rendering the notification of sale premature and void ab initio. Furthermore, she claims that the Defendants breached their statutory duty by neglecting to conduct a property valuation as mandated by Section 97(2) of the Land Act, 2012, thereby invalidating the entire process.
4. Fearing irreparable loss and prejudice to her rights and contributions, the Plaintiff seeks declaratory orders declaring the charge and notification of sale illegal and void ab initio, alongside a permanent injunction restraining the Defendants, their agents, and servants from disposing of or transferring the properties. She also prays for general damages, interest at court rates, and the costs of the suit.
5. In view of the nature of the pleadings, the Court directed the parties to formally address it on the threshold issue of jurisdiction. This ruling is therefore formulated to determine whether this Honourable Court is clothed with the requisite jurisdiction to entertain the Plaintiff's claim before any consideration of the substantive merits of the suit can proceed.
Issues for determination
6. The central issue for determination is whether this Court, the Environment and Land Court (ELC), has the requisite jurisdiction to hear and determine the Plaintiff’s suit. The determination hinges on whether the core dispute constitutes a matter relating to the "use and occupation of, and title to, land" as contemplated under Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act, 2011.
Analysis and Determination
7. The jurisdiction of this Court is strictly conferred and limited by the Constitution and statute. As held by the Supreme Court in Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others [2012] eKLR:
"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. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation...."
8. The Plaintiff seeks a declaration that the charge over the suit properties is void ab initio and seeks an injunction to stop the sale of the properties. While the Plaintiff frames this as a matrimonial property dispute, this court opines that the substance of the claim is a challenge to a security instrument (a charge) created to secure a loan.
9. The binding authority on this distinction is the Court of Appeal decision in Co-operative Bank of Kenya Ltd -Vs- Patrick Kang'ethe Njuguna & 5 Others [2017] eKLR, which established a clear demarcation between "dispositions of land" and the "use of land". The Court of Appeal reasoned:
"By definition, a charge is an interest in land securing the payment of money or money's worth or the fulfillment 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... The creation of that relationship therefore, has nothing to do with use of the land... Indeed, that relationship is simply limited to ensuring that the chargee is assured of the repayment of the money he has advanced the chargor."
10. The Court further clarified:
"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 acquisition or conferment of an interest in land does not amount to use of that land."
11. Applying this to the present case, the Plaintiff’s suit fundamentally challenges the validity of a charge and the subsequent notification of sale. Following the Co-operative Bank precedent, such disputes regarding mortgages, charges, and the collection of dues fall outside the specific jurisdictional mandate of the ELC and instead belong to the general civil jurisdiction of the High Court.
12. Furthermore, in Bank of Africa Kenya Ltd & Another -Vs- TSS Investment Ltd & 2 Others (Civil Appeal No. E055 of 2022), the Court of Appeal reinforced that:
"...the ELC only has jurisdiction to deal with disputes connected to 'use' of land and contracts incidental to the 'use' of land, which do not include mortgages, charges, collection of dues and rents which fall within the civil jurisdiction of the High Court."
13. The Plaintiff's suit, while touching upon land, is essentially a challenge to the enforcement of a commercial security instrument, a charge, and not a dispute over land use, planning, or environmental protection as defined in Section 13 of the ELC Act.
14. Consequently, the Court lacks the jurisdiction to hear this claim. It cannot "breathe life into a matter that is, at its inception, void" by transferring it to the High Court. As noted in Kungu v Kamoche & another [2026] KEELC 724 (KLR), where jurisdiction is absent, there is no proceeding upon which statutory discretion to transfer may operate.
15. The court therefore makes the following orders:
a) The Court finds that it lacks the jurisdiction to entertain the Plaintiff's suit.
b) The Plaintiff's suit is hereby struck out, with costs to the 1st Defendant.
It is so ordered.
Dated, Signed and Delivered Virtually this 21st Day of May, 2026.
M.D. MWANGI
JUDGE
In the virtual presence of:
Mr. Atemba h/b for Mr. Waudo for the 1st Defendant
N/A by the Plaintiff and the 2nd Defendant
Court Assistant: Alex
M.D. MWANGI
JUDGE