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ELCStruck OutMiscellaneous Application (ELC), involving Notice of Motion dated 29/9/2025

Karimi v Kenya Commercial Bank Ltd & another; Magwata (Interested Party) (Environment and Land Miscellaneous Case E024 of 2025) [2025] KEELC 6905 (KLR)

Environment and Land Court
2 October 2025
1,887 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a bid to stop a bank auction, ruling that disputes over the validity of a mortgage belong in the High Court.

What this practically means

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Executive summary

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Charity Karimi registered a miscellaneous application in the Environment and Land Court together with a notice of motion dated 29/9/2025 seeking ex parte interlocutory injunctions restraining Kenya Commercial Bank Ltd from auctioning land parcel N.Tharaka/Marimanti/3335. Her substantive petition, challenging the validity of the charge over the matrimonial home for want of spousal consent under Section 79(3) of the Land Act and the Matrimonial Property Act, had not been registered. Counsel Mr Asewe submitted the dispute concerned a land right within the court's jurisdiction under Article 162(2)(b) of the Constitution and Section 13(2)(f) of the ELC Act. The court directed submissions on jurisdiction and framed two ex parte questions: whether the ELC has prima facie jurisdiction over the dominant issue, and whether the applicant had made out a case for ex parte injunctive relief. Holding that the dominant issue was the validity of a charge - a commercial matter for the High Court under the Court of Appeal's binding decisions in Co-operative Bank v Kangethe Njuguna, Diamond Trust Bank v FHH and Bank of Africa v TSS Investment - the court found the ELC lacked jurisdiction. Invoking Phoenix of E.A. Assurance v Thiga, Equity Bank v Mutie and the Lillian S principle, the court declined to transfer the matter suo motu, holding a suit filed without jurisdiction is a nullity that cannot be transferred. The application was struck out with no order of costs, with liberty to file a competent suit in a court seized of jurisdiction.

Questions the Court framed

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

  1. 1.Whether, prima facie, the Environment and Land Court has jurisdiction to entertain the dominant issue in this dispute
  2. 2.Whether the applicant has made out a case for an interim ex parte injunctive relief

Key legal issues

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01

Jurisdiction of the ELC over a dispute concerning the validity of a charge for want of spousal consent

Holding

The ELC has no jurisdiction; the dominant issue is the validity of the charge, a commercial matter for the High Court per Co-operative Bank v Kangethe Njuguna and Diamond Trust Bank v FHH

Reasoning

The court held the dispute is not about title, occupation or use of land but about the validity of the charge registered by the Bank. Following binding Court of Appeal authority, disputes over mortgages and charges are commercial matters for the High Court. Even a plea under the Matrimonial Property Act does not lie in the ELC. Stare decisis binds the court.

p. 2
02

Whether the court can transfer the suit to the High Court suo motu

Holding

No; a suit filed without jurisdiction is a nullity and cannot be transferred

Reasoning

Relying on Phoenix of E.A. Assurance v Thiga, Equity Bank v Bruce Mutie Mutuku and the Lillian S principle, the court held that jurisdiction must exist when a suit is filed, that a suit filed without jurisdiction is dead on arrival, and that transfer powers cannot be used to sanctify an incompetent suit. The applicant must withdraw and file afresh.

p. 4
03

Whether the ex parte injunctive relief could issue

Holding

No; the application could not be anchored on an unregistered miscellaneous application without a substantive suit

Reasoning

The court noted that the substantive petition had not been registered and was not before the court; only a miscellaneous application had been registered. Interim orders can only issue on an application anchored on a substantive suit, so the notice of motion stood to be struck out as anchored on nothing.

p. 2

Legal principles established

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  • Disputes over the validity of mortgages or charges fall within the civil jurisdiction of the High Court, not the Environment and Land Court
  • A suit filed in a court without jurisdiction is a nullity that cannot be transferred to a competent court; it must be withdrawn and filed afresh
  • Interim orders can only issue on an application anchored on a substantive suit

Court orders

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  1. 1.The miscellaneous application is struck out for having been filed in a court not seized of jurisdiction
  2. 2.No award of costs
  3. 3.The applicant is at liberty to file a competent suit and application in a court seized of jurisdiction

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13(2)(f) of the Environment and Land Court Act (raised on the question of the court's own jurisdiction)

Relief refused

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Interlocutory injunctive orders restraining Kenya Commercial Bank Ltd from auctioning land parcel number N.Tharaka/Marimanti/3335

The Environment and Land Court lacks jurisdiction over the dominant issue (validity of a charge); the application was also anchored on no registered substantive suit

p. 3

Costs

No award of costs - 'There will be no award of costs.'

Quotable passages

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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, this suit is struck out on the ground of want of jurisdiction on part of the Environment and Land Court. There will be no award of costs. It is so ordered.
p. 4Final orders - striking out for want of jurisdiction
Jurisdiction is everything. Without it a court has no power to make one more step.
p. 4The Lillian S principle, as adopted by the court
The applicant will be at liberty to file a competent suit and application in a court seized of jurisdiction.
p. 4Liberty to file afresh in the competent court
Whichever way one looks at this dispute, the Environment and Land Court has no jurisdiction to entertain this dispute.
p. 3Absence of ELC jurisdiction over charge-validity disputes

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Karimi v Kenya Commercial Bank Ltd & another; Magwata (Interested Party) (Environment and Land Miscellaneous Case E024 of 2025) [2025] KEELC 6905 (KLR)", Case Analysis (2025). Miscellaneous Application (ELC), involving Notice of Motion dated 29/9/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6905/eng@2025-10-02

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