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ELCStruck OutNkubu SPMC Civil Case No. E104 of 2023 (appeal to Environment & Land Court at Meru)

Kinanu v Capital Sacco Limited & another (Environment and Land Appeal E002 of 2025) [2025] KEELC 7219 (KLR)

Environment & Land Court
23 October 2025
BEB M Eboso
2,198 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it cannot hear mortgage or charge disputes; such cases belong in the High Court, and wrongly-filed suits cannot be transferred.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (B M Eboso, Judge, dated 23 October 2025) determines a jurisdictional question raised suo motu in an appeal against the judgment of the Senior Resident Magistrate's Court at Nkubu (R Ongira, SRM, 17 December 2024), which had dismissed the appellant's suit challenging the sale of land parcel Nkuene/L-Mikumbune/683 by public auction in exercise of the 1st respondent's chargee's statutory power of sale. The appellant had charged the land to secure a loan of about Kshs 800,000–840,000 and alleged the auction was fraudulent and illegal, conducted without notice, at an undisclosed location, and below market value. The respondents maintained the sale followed all statutory requirements after loan default. When the appeal came before the ELC Judge for directions, the court invited submissions on its own jurisdiction. Relying on binding Court of Appeal authority — Co-operative Bank v Kangethe Njuguna, Bank of Africa v TSS Investment, and Diamond Trust Bank v FHH — the court held that mortgage/charge disputes, including challenges to statutory notices and to the exercise of the statutory power of sale, fall outside the ELC's jurisdiction and belong to the High Court's civil jurisdiction. The court further held, following Phoenix of East Africa Assurance v Thiga and Equity Bank v Bruce Mutie Mutuku, that a suit filed without jurisdiction is a nullity that cannot be transferred to a competent court. The appeal was accordingly struck out, with each party bearing their own costs because the jurisdictional objection was raised by the court, not the parties.

Questions the Court framed

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

  1. 1.Whether the Environment and Land Court has jurisdiction to entertain an appeal arising from a mortgage/charge dispute concerning the chargee's statutory power of sale
  2. 2.Whether the appeal, if filed in a court lacking jurisdiction, can be transferred to the High Court
  3. 3.Who should bear the costs of the aborted appeal

Key legal issues

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01

Whether the ELC has jurisdiction over a mortgage/charge dispute

Holding

The ELC lacks jurisdiction; the dominant issue was whether the chargee's statutory power of sale had crystallised, which is a commercial matter for the High Court

Reasoning

The court characterized the suit as a mortgage dispute because it challenged the 1st respondent's right and manner of exercising the chargee's statutory power of sale. Relying on binding Court of Appeal decisions (Co-operative Bank v Kangethe Njuguna; Bank of Africa v TSS Investment; Diamond Trust Bank v FHH), the court held such disputes are excluded from the ELC's jurisdiction under Section 13 of the ELC Act, which covers only disputes connected to the 'use' of land.

p. 3
02

Whether the appeal could be transferred to the High Court

Holding

No; an appeal filed in a court without jurisdiction is a nullity incapable of transfer

Reasoning

Following Phoenix of East Africa Assurance v Thiga and Equity Bank v Bruce Mutie Mutuku, the court held that jurisdiction must exist at filing; a suit filed devoid of jurisdiction is dead on arrival and cannot be remedied by transfer under Section 18 of the Civil Procedure Act, party consent, the overriding objective, or Article 159 of the Constitution.

p. 4
03

Costs of the aborted appeal

Holding

Each party to bear own costs because the jurisdiction issue was raised by the court, not the parties

Reasoning

Since the respondents never raised the jurisdictional objection and both parties were 'comfortably participating in an illegality', the court declined to award costs to any party, directing that each bear their respective costs of the aborted appeal.

p. 5

Legal principles established

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  • The Environment and Land Court lacks jurisdiction over mortgage/charge disputes, including challenges to the exercise of a chargee's statutory power of sale; such disputes fall within the civil jurisdiction of the High Court
  • A suit filed in a court lacking jurisdiction is a nullity that cannot be transferred to a court with jurisdiction
  • Where a court lacks jurisdiction, it must down its tools

Court orders

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  1. 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. 2.Parties will bear their respective costs of the appeal

The bench

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

BE
majority

Wrote the judgment

On appeal from
Senior Resident Magistrate's Court at Nkubu
SPMC Civil Case No. E104 of 2023
Jurisdiction invoked
Article 162(2)(b) and the Environment and Land Court Act, Section 13 (jurisdiction question raised suo motu by the court)

Relief refused

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Transfer of the appeal to the High Court

A suit filed in a court without jurisdiction is a nullity and cannot be transferred

p. 4

Costs

Parties will bear their respective costs of the appeal (each party bears their own 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.

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
p. 5Final orders – striking out for want of jurisdiction
The prevailing law is that the Environment and Land Court does not have jurisdiction to entertain mortgage/charge disputes.
p. 4ELC jurisdiction over mortgage/charge disputes
Jurisdiction is everything. Without it, a court has no power to make one more step.
p. 4Lilian S principle
A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied.
p. 4Non-transferability of a suit filed without jurisdiction

Issues in the judgment

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minor

Duplicate paragraph numbering: two paragraphs are both numbered 18

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, "Kinanu v Capital Sacco Limited & another (Environment and Land Appeal E002 of 2025) [2025] KEELC 7219 (KLR)", Case Analysis (2025). Nkubu SPMC Civil Case No. E104 of 2023 (appeal to Environment & Land Court at Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7219/eng@2025-10-23

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