Mutethia t/a Times & Seasons Chemicals v Absa Bank Kenya PLC & another (Environment and Land Case E075 of 2025) [2026] KEELC 990 (KLR)
The bottom line
#A Kenyan land court refused to stop a bank's property auction, ruling the real fight over loan accounts belongs to the High Court, and transferred the case there.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to determine the dispute, the same having been challenged by the 1st Defendant
- 2.Whether the predominant dispute is one of accounts outstanding under the credit facility rather than the charge or injunction
- 3.Whether a temporary injunction should issue restraining the sale of the suit property pending hearing of the suit
Key legal issues
#Jurisdiction of the ELC over a chargee's exercise of statutory power of sale where the real dispute is over loan accounts
The ELC's jurisdiction under Section 13(2) of the Environment and Land Court Act and Article 162(2)(b) does not extend to determining questions of accounts or outstanding debts; where the predominant issue is accounts, the matter belongs to the High Court.
The court relied on the Court of Appeal's decision in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, which held that a charge does not constitute use of land and that where the cause of action concerns tabulation of sums owing rather than the validity of the charge, jurisdiction lies outside the ELC. Here the parties do not dispute the charge or the debt, only the accounts, making accounts the predominant issue.
Remedy where two courts have concurrent jurisdiction
Rather than striking out the suit, the court exercised its discretion to transfer it to the High Court, guided by the force-cases model of deferring to the court with jurisdiction over the primary subject matter.
Citing Justice F. Gikonyo's ruling in Dominic & 3 Others v County Government of Narok, the court held that inherent powers permit a court not to exercise a jurisdiction it has, to protect the integrity of judicial processes and defer to the court best placed to determine the predominant issue. Dismissal for want of jurisdiction would be drastic since the ELC is not wholly without jurisdiction.
Whether to grant a temporary injunction restraining sale of the suit property
The application for injunction was not granted; all temporary orders were vacated upon transfer of the suit to the High Court.
Because the court found the predominant dispute to be accounts, which it could not determine, granting injunctive relief would not settle the real dispute. The court instead transferred the whole suit and vacated any interim orders, leaving the injunction question to be dealt with by the High Court.
Legal principles established
#- Where courts have concurrent jurisdiction, a court may decline to exercise its jurisdiction in favour of the court with jurisdiction over the predominant subject matter, as an exercise of discretion in the interest of justice.
- A court without jurisdiction cannot grant any orders, however meritorious the case.
Court orders
#- 1.This suit be and is hereby transferred to the Thika High Court for Mention on 3/03/2026 for further directions as to hearing.
- 2.Any temporary orders issued are hereby vacated.
- 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; Section 13 of the Environment and Land Court Act; Section 150 of the Land Act
Relief refused
#Temporary injunction restraining sale, transfer or disposal of Kiambu/Municipality Block 111/46
The predominant dispute is over accounts, a matter outside or better suited to the High Court's jurisdiction; the court instead transferred the suit and vacated temporary orders
Striking out the suit for lack of jurisdiction as sought by the 1st Defendant
Both courts have concurrent jurisdiction and the predominant issue lies with the High Court, making transfer rather than dismissal the just course
Costs
I 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.
A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
This suit be and is hereby transferred to the Thika High Court for Mention on 3/03/2026 for further directions as to hearing.
Any temporary orders issued are hereby vacated.
I make no orders as to costs.
Rather, this is a case where two Courts have concurrent jurisdiction but the predominant dispute is with the High Court.
Issues in the judgment
#The judgment does not disclose the full names of the parties or the suit's case number; the caption is only a Notice of Motion dated 29/04/2025.
The 1st Defendant's response is described both as opposing the application and as seeking striking out of the entire case, and the deponent is variously referred to as representing the Defendant and the 1st Defendant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutethia t/a Times & Seasons Chemicals v Absa Bank Kenya PLC & another (Environment and Land Case E075 of 2025) [2026] KEELC 990 (KLR)", Case Analysis (2026). Notice of Motion dated 29/04/2025 (suit at Thika Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/990/eng@2026-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.