Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherELC Case, plaint dated 20/8/2024 (Notice of Motion dated 20/8/2024)

Salim v Petro Soko Limited; Ecobank Kenya Limited (Interested Party) (Environment & Land Case E85 of 2024) [2025] KEELC 3894 (KLR)

Environment and Land Court
20 May 2025
3,101 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court refused to protect property in a loan dispute, ruling the case was commercial and belonged in the High Court.

What this practically means

#

Executive summary

#
The Plaintiff, Asha Kamene Salim, moved the ELC at Malindi by Notice of Motion dated 20/8/2024 seeking an inhibition and injunction over LR No. 9122/401 and 9122/402 pending arbitration, alleging that the Defendant, who had assisted her secure a loan from the Interested Party against the properties, breached their agreement of 30/8/2023 by refusing to make her a loan account signatory and thereafter purported to sell the properties. The Defendant alleged non-disclosure of her loan default and of a withdrawn suit. The Interested Party objected that under Section 7 of the Arbitration Act only the High Court could grant interim measures, and that its statutory power of sale had crystallised upon default. The court held, following Mungai Ngaruiya v Maha Properties, that the ELC is the constitutional successor of the pre-2010 High Court in land disputes and so could exercise Section 7 powers. However, on examining the agreement, it found the transfer to the Defendant was cosmetic security, the Defendant merely the Plaintiff's agent in procuring the loan, and the real dispute a commercial one over the charge and loan repayment. Relying on Cooperative Bank v Njuguna, it held such a dispute falls outside Article 162(2)(b) and Section 13 of the ELC Act. Invoking the overriding objective, the court declined the interlocutory orders and transferred the entire suit to the High Court at Malindi. No costs order was made.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the ELC has jurisdiction under Section 7 of the Arbitration Act, 1995 to grant interim measures of protection pending arbitration
  2. 2.Whether the Plaintiff is deserving of an interim measure of protection (inhibition and injunction) under Section 7 of the Arbitration Act, 1995 pending arbitration
  3. 3.Whether the dispute falls within the jurisdiction of the ELC as a matter relating to environment and land under Article 162(2)(b) and Section 13 of the ELC Act

Key legal issues

#
01

Jurisdiction of the ELC to grant interim measures under Section 7 of the Arbitration Act

Holding

The ELC has jurisdiction, as constitutional successor to the pre-2010 High Court in land disputes, notwithstanding the Arbitration Act's reference to the High Court

Reasoning

The Arbitration Act is a pre-2010 statute referring to the High Court. Article 162 established the ELC as a court of equal status with jurisdiction over environment and land matters. Relying on Mungai Ngaruiya v Maha Properties, the court held that for land disputes the ELC is the successor institution, so references to the High Court in the Arbitration Act encompass the ELC.

p. 3
02

Whether the dispute falls within the ELC's constitutional jurisdiction

Holding

No - the dispute is purely a commercial dispute over a charge and loan repayment, outside Article 162(2)(b)

Reasoning

The court examined the agreement and found the transfer to the Defendant was security/cosmetic, the Defendant merely an agent in procuring the loan, and the dominant issue the repayment of charge monies to the Interested Party. Following Cooperative Bank v Njuguna, a charge creates rights limited to realization of the security and has nothing to do with use of land, so the dispute is commercial and outside ELC jurisdiction.

p. 6
03

Whether interim orders could issue where the court lacks jurisdiction over the entire suit

Holding

No - a court must assess jurisdiction over the entire claim even at interlocutory stage before granting interim orders

Reasoning

Although the court could in a suitable case exercise Section 7 powers, the duty to evaluate jurisdiction over the entire suit at the interlocutory stage means interim orders cannot issue in a suit over which the court lacks jurisdiction. Hence the injunction and inhibition were refused and the suit transferred.

p. 5

Legal principles established

#
  • The ELC, as a court of equal status to the High Court, has jurisdiction under Section 7 of the Arbitration Act to grant interim measures of protection pending arbitration in land-related disputes
  • A charge securing repayment of money does not concern the use and occupation of or title to land and therefore does not fall within Article 162(2)(b) jurisdiction

Court orders

#
  1. 1.The suit is transferred to the High Court at Malindi for hearing and final disposal

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act; Section 7 of the Arbitration Act, 1995 invoked for interim measures

Relief refused

#

Order of inhibition over LR No. 9122/401 and LR No. 9122/402

The dispute is purely commercial (charge and loan repayment) and outside ELC jurisdiction

p. 6

Injunction restraining the Defendant from dealing with the suit properties

The court lacks jurisdiction over the entire suit, so no interim orders could issue

p. 5

Costs

No express costs order made

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.

the dispute between the parties is purely a commercial dispute over which this court can not exercise jurisdiction without going contrary to the provisions of the Section 13 of the Environment and Land Court Act and Article 162(2) (b) of the Constitution of Kenya 2010, and consequently I see no basis to grant an injunction as prayed.
p. 6Lack of ELC jurisdiction over commercial charge/loan dispute
I order that this suit is hereby be transferred to the High Court at Malindi for hearing and final disposal.
p. 6Final order - transfer of suit
even where a court may be possessed of jurisdiction to exercise power under the law in granting interim orders, it is the duty of this court to evaluate any suit even at the interlocutory stage and establish whether it is possessed of jurisdiction over the entire claim
p. 5Duty to assess jurisdiction over entire claim at interlocutory stage
It is not incompatible with an arbitration agreement for a party to request from the High Court, before or during arbitral proceedings, an interim measure of protection and for the High Court to grant that measure.
p. 3Section 7 Arbitration Act - interim measures

Issues in the judgment

#
minor

Party names are not stated in full anywhere in the judgment excerpt; only deponents' names (Asha Kamene Salim, Haitham Ali Shebe, Duncan Mutembete) identify the parties, and the suit number itself is not given

minor

The judgment does not state the disposal of the Notice of Motion itself distinctly, only transferring 'this suit'; the fate of prayers 4 and 5 is implicit in the jurisdiction finding

minor

No costs order is made despite prayer 6 seeking costs

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Salim v Petro Soko Limited; Ecobank Kenya Limited (Interested Party) (Environment & Land Case E85 of 2024) [2025] KEELC 3894 (KLR)", Case Analysis (2025). ELC Case, plaint dated 20/8/2024 (Notice of Motion dated 20/8/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3894/eng@2025-05-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.