Al-Ghaafiry (Suing as the Lawful Attorney of Mrs Bintali Kibamba) v Izwe Loans Kenya Ltd (Land Case E013 of 2021) [2025] KEELC 905 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a borrower's bid to stop a bank selling charged land, ruling loan disputes belong in the High Court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the preliminary objection raised is merited
- 2.Whether the orders sought in the application should be granted
- 3.Whether the suit can be salvaged by transfer to the High Court
Key legal issues
#Whether the preliminary objection was properly raised as a pure point of law
It was properly raised since, if upheld, the suit would be disposed of without ascertaining facts.
Applying Mukisa Biscuits, the court held that the objection on jurisdiction was a point of law arising from the pleadings which, if successful, would dispose of the suit preliminarily without the need to ascertain facts.
Whether the ELC has jurisdiction over a claim to restrain exercise of statutory power of sale over charged land
No. The claim is a commercial dispute over loan amounts and enforcement of a charge, outside the ELC's jurisdiction.
Relying on Bank of Africa Kenya Ltd v TSS Investment Ltd and Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, the court held that the ELC has jurisdiction over disputes connected to use of land and contracts incidental to use, which do not include mortgages and charges. The user of the land here was only to secure a loan; the prayers sought (permanent injunction against sale and declaration on the valuation) were derivative of the loan and charge arrangements.
Whether the suit could be salvaged by transfer to the High Court
No. A court lacking jurisdiction has no power to transfer; the suit is dead on arrival.
Following Albert Chaurembo Mumba and Equity Bank v Bruce Mutie Mutuku, the court held that transfer is unavailable where the court lacks jurisdiction ab initio; there is nothing capable of transfer.
Legal principles established
#- The ELC's jurisdiction is limited to disputes relating to environment and the use and occupation of, and title to land; claims over enforcement of statutory power of sale under a charge, and related valuation disputes, are commercial disputes for the High Court.
- A court without jurisdiction cannot transfer a suit to a court with jurisdiction.
Court orders
#- 1.Preliminary objection sustained
- 2.Suit struck out for lack of jurisdiction
- 3.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act
Relief refused
#Temporary injunction restraining the Defendant from transferring, alienating, advertising for sale, selling or dealing in Plot No. KWALE/RAMISI PHASE II SCHEME/1079
The court found it had no jurisdiction to hear the dispute, which is a commercial dispute over a loan facility and charge falling within the High Court's jurisdiction
Transfer of the suit to the High Court Commercial Division
A court without jurisdiction has no power to transfer a suit; there is nothing to transfer
Costs
No orders as to costs - 'Costs are the discretion of the court and since there is still a loan to repay, I will therefore make no orders as to costs.'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the premises, this court finds and holds that it has no jurisdiction to hear and determine this dispute. I must down my tools. The suit is hereby stuck ofi.
Costs are the discretion of the court and since there is still a loan to repay, I will therefore make no orders as to costs.
suits filed before courts without jurisdiction, the said courts have no power to transfer the suit. Indeed, the suit is dead on arrival and this court cannot purport to be a mortician. There is nothing to transfer.
… a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.
the claim herein is solely a commercial dispute over the amounts owed by the plaintifi.
Issues in the judgment
#The judgment states the suit is 'stuck ofi' (struck out) but does not expressly set out numbered final orders; the disposition is embedded in the narrative closing paragraph.
The defendant is referred to only as 'Zenith'/'the Defendant' bank while the valuer is 'Zenith Management Valuers'; the exact corporate name of the defendant bank is not clearly stated.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Al-Ghaafiry (Suing as the Lawful Attorney of Mrs Bintali Kibamba) v Izwe Loans Kenya Ltd (Land Case E013 of 2021) [2025] KEELC 905 (KLR)", Case Analysis (2025). ELC Case dated 4/03/2024 (Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/905/eng@2025-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.