Sherali (Suing as Legal Representative of the Estate of Husein Sherali Jivraj alias Husein Sherali alias Huseinali Esmail Sherali Jivraj (Deceased)) v Kenya Deposit Insurance Corporation & 2 others (Environment and Land Case E120 of 2025) [2026] KEELC 4408 (KLR)
The bottom line
#A Kenyan court struck out a fraud challenge to a bank charge because claims about how a charge was created belong in the High Court, not the Land Court.
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 Plaintiff has capacity to maintain the suit
- 2.Whether the suit is barred under Section 4(1)(2) and 7 of the Limitation of Actions Act
- 3.Whether the court has jurisdiction to hear and determine the suit
- 4.Whether the Plaintiff ought to be granted leave to institute and continue with the suit against the Defendants, in particular the 3rd Defendant under liquidation
Key legal issues
#Whether the ELC has jurisdiction over the Plaintiff's suit
The court lacked jurisdiction because the predominant issue is the fraudulent process by which the charge was registered, a matter within the High Court's purview
The court adopted the dominant-issue test from Co-operative Bank v Kangethe Njuguna as reiterated in Joel Kyatha Mbaluka. Examining the plaint, the gravamen was fraud and unlawfulness in the acquisition and registration of the charge securing a Ksh 18,000,000 credit facility, not the use, occupation of, or title to land. Jurisdiction over that question lies with the High Court, so the ELC could not entertain the suit or grant leave under the Insolvency Act.
Legal principles established
#- In determining whether the ELC has jurisdiction, the consideration must be the dominant issue in the dispute and whether it relates to the environment and the use, occupation of, and title to land
Court orders
#- 1.The Notice of Motion application dated 27th October, 2025 is struck out with costs
- 2.The Plaint dated 27th October, 2025 is struck out with 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 and the Environment and Land Court Act (jurisdiction of the ELC); leave sought under Section 432(2) of the Insolvency Act
Relief refused
#Leave to commence and institute the suit against the 3rd Defendant under liquidation under Section 432(2) of the Insolvency Act
The court found the predominant issue in the dispute is the fraudulent process by which the charge was acquired, which falls within the jurisdiction of the High Court, not the ELC; having no jurisdiction, the court struck out the application and the plaint
Costs of the application borne by the Defendants
Costs of the application were awarded to the Defendants/1st Defendant by striking out the application with costs
Costs
The Notice of Motion application dated 27th October, 2025 was struck out with costs; the Plaint dated 27th October, 2025 was struck out with 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.
The Notice of Motion application dated 27th October, 2025 is hereby struck out with costs.
The Plaint dated 27th October, 2025 is hereby struck out with no orders as to costs.
in construing whether the ELC had jurisdiction in a matter, the consideration must be the dominant issue in the dispute and whether that issue relates to the environment and the use and occupation of, and title to, land
the predominant issue in this case is the process of how the charge registered on 25th September, 2009 was acquired which falls within the purview of the High Court
Issues in the judgment
#Judgment does not identify the parties by name; defendants are referred to only by number, and the identities of the 1st to 4th Defendants must be inferred from context
Date of the ruling is not stated in the judgment text; the date recorded is inferred from the latest filings (submissions dated 15th April, 2026) and the signature block
The plaint is dated 27th October, 2025, the same date as the application seeking leave to institute the suit, indicating the suit was filed before leave was obtained - the very defect raised by the Defendants
1st Defendant's Grounds of Opposition dated 2nd April, 2026 postdate the 2nd Defendant's Replying Affidavit sworn 13th March, 2026, though listed earlier in the judgment; also an internal numbering anomaly (two paragraphs numbered 3)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sherali (Suing as Legal Representative of the Estate of Husein Sherali Jivraj alias Husein Sherali alias Huseinali Esmail Sherali Jivraj (Deceased)) v Kenya Deposit Insurance Corporation & 2 others (Environment and Land Case E120 of 2025) [2026] KEELC 4408 (KLR)", Case Analysis (2026). ELC Case of 2025 (application dated 27th October, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4408/eng@2026-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.