Absa Bank Kenya PLC v Benedict Simeon Ondieki Nyatangi
The bottom line
#Kenya's Environment and Land Court struck out Absa Bank's appeal, confirming it cannot hear mortgage and property sale disputes—those belong to the High 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 this court is vested with the requisite jurisdiction to hear and determine the present application as well as the appeal filed herein
- 2.Whether an Order for Stay of Proceedings can issue against the proceedings known as Eldoret MCELC Case No. E178 of 2025
- 3.Who shall bear the costs of the present Application
Key legal issues
#Jurisdiction of the ELC over chargee-chargor disputes
The ELC has no jurisdiction over disputes on charges, loan accounts and statutory power of sale; such matters fall outside Article 162(2)(b) and section 13 of the ELC Act
Relying on the binding Court of Appeal decision in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, the court held that a charge is a disposition of land, not a use of land. Section 13 of the ELC Act and section 150 of the Land Act make no provision for enforcement of a charge or exercise of statutory power of sale; such disputes fall within the High Court's civil jurisdiction. The court was therefore bound to strike out the appeal and application.
Whether stay of proceedings in the subordinate court could issue
Not determined on the merits; the application was struck out for want of jurisdiction
Having found no jurisdiction over the appeal, the court did not reach the merits of the stay of proceedings application. The second issue became moot once the threshold jurisdictional finding was made, and the application and appeal were both struck out.
Legal principles established
#- The Environment and Land Court lacks jurisdiction over disputes relating to charges, mortgages or the exercise of the statutory power of sale, which fall within the High Court's civil jurisdiction
- A court without jurisdiction must down its tools; jurisdiction flows only from the Constitution or statute
Court orders
#- 1.The Notice of Motion Application dated 15th April, 2026 is struck out
- 2.The appeal vide the Memorandum of Appeal dated 15th April, 2026 is struck out for want of jurisdiction
- 3.Each party to bear its own costs of the present Application as well as the Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court at Eldoret
- Eldoret MCELC Case No. E178 of 2025
- Jurisdiction invoked
- Article 162(2)(b) and (3) of the Constitution and section 13 of the Environment and Land Court Act
Relief refused
#Stay of all further proceedings in Eldoret MCELC Case No. E178 of 2025 pending appeal
The court lacked jurisdiction over the appeal and application, as the dispute concerns a charge and statutory power of sale, not land use
Costs
Each party to bear its own costs of the present Application as well as the Appeal.
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.
Where a court of law finds that it lacks the requisite jurisdiction to entertain and/or hear and determine a suit then the court is duty bound to down its tools.
the Environment and Land Court is not vested with the jurisdiction to entertain disputes relating to charges, mortgages or the exercise of the statutory power of sale.
this court finds that the Notice of Motion Application dated 15th April, 2025 is not merited and is hereby Struck Out.
Similarly, the appeal vide the Memorandum of Appeal dated 15th April, 2026 be and is hereby Struck Out for want of jurisdiction.
Each party to bear its own costs of the present Application as well as the Appeal.
Issues in the judgment
#Date of the Notice of Motion inconsistently stated as 2026 and 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Absa Bank Kenya PLC v Benedict Simeon Ondieki Nyatangi", Case Analysis (2026). ELC Land Appeal No. E010 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5722/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.