Duncan & 2 others v Family Bank Limited & another (Environment and Land Case E026 of 2021) [2026] KEELC 2364 (KLR)
The bottom line
#The Environment and Land Court struck out landowners' bid to stop a bank auction, ruling that charge disputes 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 a suit whose gravamen is to restrain a chargee's exercise of its statutory power of sale arising out of a charge
- 2.Whether the Plaintiffs are entitled to a permanent injunction and a declaration that title L.R No. Ngong/Ngong/59915 is null and void
Key legal issues
#Whether the ELC has jurisdiction over a dispute whose gravamen is a chargee's statutory power of sale
The ELC lacks jurisdiction; mortgage and charge disputes fall within the High Court's civil jurisdiction
Article 162(2)(b) confines the ELC to environment and land use, occupation and title disputes. A charge is an interest in land limited to realization of security, not 'use' of land. Following the Court of Appeal in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, contracts incidental to the ELC's jurisdiction do not include mortgages and charges. The Plaintiffs' suit sought to restrain exercise of the statutory power of sale, so the court struck it out.
Legal principles established
#- The ELC's jurisdiction is constitutionally limited and cannot be expanded by judicial craft
- A court without jurisdiction must down its tools
- The mere involvement of land does not automatically confer jurisdiction on the ELC
Court orders
#- 1.The suit is struck out for lack of jurisdiction
- 2.Costs of the suit are awarded to the Defendants
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 and Section 13 of the Environment and Land Court Act
Relief refused
#Permanent injunction restraining the Defendants from auctioning, advertising for sale or interfering with the Plaintiffs' quiet occupation of L.R No. Ngong/Ngong/59915
The court lacked jurisdiction to entertain the suit, as the dispute concerns a charge and the chargee's statutory power of sale, which falls outside the ELC's jurisdiction
Declaration that title L.R Ngong/Ngong/59915 is null and void for having been irregularly and fraudulently obtained
The entire suit was struck out for want of jurisdiction before any merits determination
Costs
Costs to the Defendants
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.
The jurisdiction of the specialized courts is limited to the matters provided for in Article 162(2)… and cannot be expanded by judicial craft.
they do not include mortgages, charges, collection of dues and rents which fall within the civil jurisdiction of the High court.
This court finds and holds that it lacks the jurisdiction to entertain this matter as filed. This court can do nothing else but to down its tools. The suit is hereby struck out with costs to the Defendants. Ordered accordingly.
Issues in the judgment
#Judgment dated 28th April 2026, which appears to be an apparent error given the plaint of 28th April 2021 and events described; recorded as printed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Duncan & 2 others v Family Bank Limited & another (Environment and Land Case E026 of 2021) [2026] KEELC 2364 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2364/eng@2026-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.