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ELCOtherNot stated in the judgment (Notice of Motion dated 23/02/2025)

Mukuru v NCBA Bank Limited & another (Environment and Land Case E027 of 2025) [2026] KEELC 1331 (KLR)

Environment and Land Court
5 March 2026
MOMOGENI
3,436 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's land court refused to hear a property owner's bid to stop a bank auction, ruling the dispute was commercial and belongs in the High Court.

What this practically means

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Executive summary

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The Plaintiff, a Director of Kendal Energy Solutions Limited, moved the Environment and Land Court at Thika by Notice of Motion dated 23/02/2025 seeking a declaration that a 22/01/2025 notice was unlawful, an interim restraining order, and a permanent injunction against the 1st and 2nd Respondents to stop the auction of LR No. 4953/29/IV in Thika, alleging non-compliance with Section 90 of the Land Act and the Auctioneers Rules. He also filed a Plaint seeking a permanent injunction. The 1st Respondent (the Bank) opposed, asserting the debt was about Kshs 269 Million against a loan of over Kshs 237 Million, that all statutory notices were issued, that the Applicant sued in his personal capacity for property owned by a company, and that the application was a delay tactic. The Bank also filed a Preliminary Objection dated 27/03/2025 contending that the dispute was commercial, not a land dispute, relying on Co-operative Bank v Kangethe Njuguna. The Court applied Mukisa Biscuits, Lillian S and Karisa Chengo, and adopted the predominant purpose test, holding that procedural challenges to the statutory power of sale over a charge are commercial matters outside the ELC's specialized jurisdiction under Article 162(2)(b). The Preliminary Objection was upheld, and the Notice of Motion and Plaint were transferred to the Thika High Court Commercial Division, with costs to the 1st Defendant. The auction question was not determined on the merits.

Questions the Court framed

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

  1. 1.Whether the Court has the requisite jurisdiction to entertain the application and subsequent suit, given that the dispute is alleged to be commercial rather than a land dispute

Key legal issues

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01

Whether the ELC has jurisdiction over a challenge to the statutory power of sale exercised under a charge

Holding

The Court lacks jurisdiction; procedural challenges to the statutory power of sale are matters of commercial law and the law of securities, not land disputes

Reasoning

The Court applied the predominant purpose test from Co-operative Bank v Kangethe Njuguna. The plaintiff did not deny the charge or the underlying debt of about Kshs 269 Million. His grievances (defective notice, failure to serve a 45-day redemption notice, lack of 90-day notice) were procedural challenges to debt recovery. Following Karisa Chengo, the ELC is a court of limited specialized jurisdiction under Article 162(2)(b), and land as mere security does not confer land jurisdiction.

Legal principles established

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  • Where a dispute is primarily a debt-collection exercise involving a charge over land as collateral, the matter belongs in the High Court Commercial Division, not the ELC
  • The fact that land is security for a loan does not automatically transform a commercial default into a land dispute for ELC purposes

Court orders

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  1. 1.The Preliminary Objection dated 27/03/2025 is found to be merited
  2. 2.The Plaintiff's Notice of Motion dated 23/02/2025 and the Plaint of even date are transferred to the Thika High Court Commercial Division
  3. 3.Costs of the Preliminary Objection and the Application are awarded to the 1st Defendant

The bench

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

MO
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act

Relief refused

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Declaration that the notice dated 22nd January 2025 was unlawful and irregular; restraining and permanent injunction against the sale/auction of LR No. 4953/29/IV

The Court found it lacked subject-matter jurisdiction over what is essentially a commercial dispute over enforcement of a financial charge, and transferred the matter instead

p. 7

Costs

Costs of the Preliminary Objection and the Application are awarded to the 1st Defendant.

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.

The Preliminary Objection is well-founded. This Court lacks the subject-matter jurisdiction to adjudicate what is essentially a commercial dispute over the enforcement of a financial charge.
p. 7Jurisdiction - ELC and commercial debt recovery
The Plaintiff's Notice of Motion dated 23/02/2025 and the Plaint of even date are hereby transferred to the Thika High Court Commercial Division.
Final orders - transfer of suit
Jurisdiction is everything. Without it, a Court has no power to make one more step.
p. 6Jurisdiction - Lillian S principle
the fact that land is the security for a loan does not automatically transform a commercial default into a land dispute for ELC purposes.
p. 7Predominant purpose test

Issues in the judgment

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minor

Date discrepancy: the application and submissions timeline runs through 2025 but the judgment is dated 2026, and paragraph 10 refers to a newspaper advert 'dated 10/02/2025' while paragraph 5 says it appeared on 20/02/2025; also the notice is variously dated 22nd January 2025 and 22/01/2025

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, "Mukuru v NCBA Bank Limited & another (Environment and Land Case E027 of 2025) [2026] KEELC 1331 (KLR)", Case Analysis (2026). Not stated in the judgment (Notice of Motion dated 23/02/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1331/eng@2026-03-05

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