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ELCStruck OutELC Case of 2025 (application dated 27th October, 2025)

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)

Environment and Land Court
24 April 2026
1,610 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Ombwayo J) dealt with the Plaintiff's Notice of Motion dated 27th October, 2025 seeking leave under Section 432(2) of the Insolvency Act to commence and maintain a suit against the 3rd Defendant, a bank under liquidation by the 4th Defendant (a receiver appointed by the Central Bank). The Plaintiff, administrator ad litem of the estate of Hussein Sherali Jivraj, alleged that the Defendants fraudulently charged the suit property, Mombasa Block I/409, on 25th September, 2009 as security for a Ksh 18,000,000 credit facility without the beneficiaries' consent, and sought a declaration that the charge was illegal and fraudulent, plus general and aggravated damages. The 1st and 2nd Defendants opposed, arguing lack of capacity, abuse of process under Section 56(2) of the Kenya Deposit Insurance Act, that suits against companies in liquidation require prior leave, and that the dominant issue concerned the charge, outside the court's jurisdiction. The court applied the dominant-issue test from Co-operative Bank of Kenya v Kangethe Njuguna as reiterated in Joel Kyatha Mbaluka, examined the plaint, and found the predominant issue was the fraudulent process by which the charge was acquired, a matter for the High Court. The court therefore struck out the application with costs and struck out the plaint with no orders as to costs.

Questions the Court framed

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

  1. 1.Whether the Plaintiff has capacity to maintain the suit
  2. 2.Whether the suit is barred under Section 4(1)(2) and 7 of the Limitation of Actions Act
  3. 3.Whether the court has jurisdiction to hear and determine the suit
  4. 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

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01

Whether the ELC has jurisdiction over the Plaintiff's suit

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Motion application dated 27th October, 2025 is struck out with costs
  2. 2.The Plaint dated 27th October, 2025 is struck out with no orders as to costs

The bench

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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

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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

p. 4

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

p. 4

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

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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 Notice of Motion application dated 27th October, 2025 is hereby struck out with costs.
p. 4Final orders - application struck out
The Plaint dated 27th October, 2025 is hereby struck out with no orders as to costs.
p. 4Final orders - plaint struck out
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
p. 3Dominant-issue test for ELC jurisdiction
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
p. 4Court's finding on jurisdiction

Issues in the judgment

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material

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

minor

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

minor

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

minor

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

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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, "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.