Kiriinya & another v Consolidated Bank Limited & another (Environment and Land Appeal E009 of 2023) [2025] KEELC 6816 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a mortgage dispute appeal, confirming such cases belong in the High Court, not the ELC.
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 Environment and Land Court has jurisdiction to entertain an appeal arising from a mortgage/charge dispute, in particular service of the chargee's statutory notice under Section 90 of the Land Act
- 2.Whether, if the court lacks jurisdiction, the appeal can be transferred to the High Court under Section 18 of the Civil Procedure Act
- 3.Who should bear the costs of the appeal
Key legal issues
#Whether the ELC has jurisdiction over a dispute on service of a chargee's statutory notice under Section 90 of the Land Act
It does not; mortgage/charge disputes fall outside ELC jurisdiction and within the High Court's civil jurisdiction
Following binding Court of Appeal authority (Co-operative Bank v Kangethe Njuguna, Diamond Trust Bank v FHH, Bank of Africa v TSS Investment), mortgage and charge disputes, including restraining exercise of statutory power of sale, are commercial matters for the High Court. ELC jurisdiction over contracts must be understood as incidental to the 'use' of land, which charges are not. Under stare decisis this court is bound.
Whether the appeal could be transferred to the High Court
No; a suit filed without jurisdiction is a nullity incapable of transfer
Relying on Phoenix of East Africa Assurance v S.M. Thiga and Equity Bank v Bruce Mutie Mutuku, the court held that transfer under Section 18 of the Civil Procedure Act cannot sanctify an incompetent suit; the only remedy is withdrawal and fresh filing in a competent court.
Costs
Each party to bear their own costs because the erroneous designation of the case as a land case contributed to the appeal being lodged in the wrong court
The court found that the lower court matter was an ordinary commercial/civil dispute erroneously designated as a land case, and neither party sought proper re-designation; this misdesignation caused the appeal to be filed in the ELC, justifying no order as to costs.
Legal principles established
#- The Environment and Land Court lacks jurisdiction to entertain mortgage/charge disputes, including disputes over service of the chargee's statutory notice under Section 90 of the Land Act; such matters fall within the civil jurisdiction of the High Court
- A suit filed in a court without jurisdiction is a nullity, dead on arrival, and cannot be cured by transfer to a competent court; jurisdiction cannot be conferred by consent or by the overriding objective
Court orders
#- 1.The appeal is struck out on the ground that the Environment and Land Court does not have jurisdiction to entertain a mortgage/charge dispute
- 2.Parties will bear their respective costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Lower court (not specified; erroneously designated as a land case)
- Jurisdiction invoked
- Jurisdiction of the Environment and Land Court under the ELC Act and Article 162(2) framework; Section 18 Civil Procedure Act raised on transfer
Relief refused
#Transfer of the appeal to the High Court under Section 18 of the Civil Procedure Act as urged by the appellants' counsel
A suit filed in a court lacking jurisdiction is a nullity and cannot be transferred; the only remedy is withdrawal and filing afresh in a competent court
Costs
Parties will bear their respective costs of the appeal
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 end, for the above reasons, this appeal is struck out on the ground that the Environment and Land Court does not have jurisdiction to entertain a mortgage/charge dispute. Parties will bear their respective costs of the appeal.
it is the finding of this court that this appeal was filed in a court that lacks jurisdiction to entertain the appeal.
Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.
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.
Issues in the judgment
#The names of the parties and the case number of the appeal and of the lower court proceeding are not stated anywhere in the judgment, limiting identification of the matter
The judgment describes the matter as an appeal but does not identify the court below or the case decided there, stating only that the lower court matter was 'erroneously designated'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiriinya & another v Consolidated Bank Limited & another (Environment and Land Appeal E009 of 2023) [2025] KEELC 6816 (KLR)", Case Analysis (2025). Not stated in judgment (memorandum of appeal dated 3/8/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6816/eng@2025-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.