https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4960

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MILIMANI** **ELC CASE NO. L E325 OF 2026** **ERIC MBAYA NKAABU ……………….....……… PLAINTIFF/APPLICANT** **VERSUS** **KENYA COMMERCIAL** **BANK LIMITED ………………...……..... 1ST DEFENDANT/RESPONDENT** **CONNEX INTERNATIONAL** **LIMITED ………………………..…….. 2ND DEFENDANT / RESPONDENT** **JOSRICK MERCHANTS** **AUCTIONEERS ……………….…..…… 3RD DEFENDANT/RESPONDENT** **RULING** 1. By a Plaint dated 15.7.2026, the Plaintiff seeks: 2. Declaration that the charge registered against Title No. NAIROBI/BLOCK 102/172 herein the suit property in favour of the 1st Defendant is fraudulent, illegal, null and void ab initio 3. An order directed at the Nairobi Land Registrar to cancel and expunge from their register the said charge and all entries relating thereto 4. Permanent injunction restraining the 1st Defendant, its agent or assignees from advertising for sale, selling, transferring or otherwise dealing with Title No. NRB/BLOCK 102/172 1. General damages for fraud 2. Exemplary damages 3. The main contention by the plaintiff is that he recently discovered that the suit property has been placed for public auction by the 3rd defendant at the instruction of the 2nd Defendant for 7th August 2026 in exercise of a statutory power of sale over default of Kshs. 23,260,047.92, yet he has had no corporate or business relationship with the 2nd Defendant. He says that there has never been or existed any transaction to guarantee any debt to the 2nd Defendant through its directors or shareholders 4. The Plaintiff avers that the alleged charge over his property was fraudulently and illegally procured and registered, for he has never consented to have his property used as security for any loan facility. The Plaintiff terms the said charge as based on forged documents. 5. By an application dated 15.7.2026, the Plaintiff now seeks for temporary orders of injunction to restrain the defendants from undertaking the scheduled public auction until the hearing and determination of the suit. He also seeks an order to compel the 1st Defendant to disclose to him and the court all the documents relating to its purported credit facility. Lastly seeks an order for the DCI Ruai Office to expedite and present its investigative report on the alleged forged charge documents 6. The Plaintiff deposes in his supporting affidavit that he is a complete stranger to the 1st defendant, that he is still in physical and actual possession of the original Certificate of title to the suit property and that was shocked to receive a notification of sale of his land leading to an official report to the DCI Ruai for investigations as per the annexture marked EMN-(1),(2) and (3) respectively 7. When the matter came up for interpartes hearing, none of the defendants appeared despite service with the court papers. Learned counsel for the applicant was directed to address the court on the issue of jurisdiction. The Plaintiff relied on written submissions dated 27.7.2026. 8. It is submitted by the plaintiff that the true character, pith and substance his claim is on the root of title, ownership and unlawful encumbrances which have been over suit property, placing the suit squarely on the exclusive jurisdiction of this court. Therefore the plaintiff urges the court to look at the true nature of the dispute rather than its peripheral details. 9. The plaintiff submits that this is a case where the 1st Defendant is trying to exercise a statutory power of sale under section 74 of the Land Act based on an alleged forged charge instrument which he never signed or consented to his land to be used as a collateral. 10. The Plaintiff submits that his cause of action is not based on a contractual dispute regarding interest rates, loan repayment, default of commercial banking terms, but on a title to his land allegedly unlawfully and fraudulently encumbered by the 1st Defendant through forged documents, without his knowledge or consent. Reliance is placed on **Cooperative Bank of Kenya Ltd vs Patrick Kangethe Njuguna & 5 Others [2017] KECA 79 (KLR)(formerly [2017] Eklr)** and in **Joseph Njuguna Nganga vs Equity Bank(K) Ltd & Others(2019) eKLR**, on the proposition that the dispute is not a commercial loan dispute, but goes to question of the validity of an interest in land, whose proper forum to determine is this court under Section 13(2)(a) and (d) of the ELC Act as read together with Article 162(2)(b) of the Constitution. 11. The Plaintiff submits that the cause of action and the reliefs sought in the suit are build upon a direct threat to his constitutional right to property under Article 40 of the Constitution which arose or was engineered via a fraudulent land transaction, between the defendant without his knowledge or consent. 12. The Plaintiff urges the court not to refer the dispute to any other division of the court, otherwise will amount to denial of his right to a specialized forum. He submits that the splitting the cause of action unnecessarily and which shall cause a procedural delay that could allow the scheduled public auction to proceed unfairly. 13. Jurisdiction refers to the authority of the court or forum to entertain, hear and determine a suit as held in **Republic vs Karisa Chengo (2017) eKLR**. It is a creature by the Constitution and statute or both. Without jurisdiction a court downs its tools as held in the Land mark case of the **Owners of Motor Vessel “Lilian S” vs Caltex Oil(K) Ltd (1989) eKLR**. Anything done without jurisdiction is a nullity in law. 14. A court’s jurisdiction cannot be expanded through judicial craft or innovation as held in **Samuel Kamau Macharia & Another vs Kenya Commercial Bank Ltd & Another (2012) klr.** 15. As held in **Meguel Cartons Ltd vs Diesel Case Ltd & others Civil Application No. E008 OF 2023** a court must in limine be satisfied that the Plaintiff has properly invoked, its jurisdiction otherwise without it cannot make any more step. 16. The jurisdiction of ELC to hear and determine disputes involving charge instruments was discussed in **Cooperative Bank (K) Ltd vs Patrick Kangethe Njuguna & Others (2017) eKLR**. The court held that a charge is a disposition in land rather than ‘use’ of land making a claim based on it falls outside the ELC mandate. 17. In **Joel Kyatha Mbaluka vs Dantel Ochieng Ogolla(2019) eKLR** and **Bank of Africa (K) Ltd and another vs TSS Investment Ltd and Another (Civil Appeal No. E055 of 2022)(2024) KECA 410B(KLR) (SUPRA)** the Court of Appeal reiterated the holding in Patrick Kangethe Case that land “use” deals with use of surface, airspace or ground below rather than security interests created over the land. 18. In **Consolidated Bank of Kenya Ltd vs Mukindia & Another** (**Civil Appeal No. E105 of 2026[2026]KECA 1381 (KLR) (10TH JULY 2026)(Judgment)**, the Court of Appeal reiterated that the ELC only has jurisdiction to deal with disputes connected to “use” of land and that contracts incidental to the “use” of the land which do not include charges and mortgages. 19. Learned Counsel for the Plaintiff herein has submitted that the court should find the character, piths and substance of the dispute as per the cause of action disclosed in the current suit as falling under it and not engage in its peripheral details to deny the Plaintiff the right to have the suit adjudicated on merits before this court. 20. A cause of action is defined as a statement of facts and law which gives rise to a cause of complaint by the Plaintiff. It is the reason which gives a party the right to sue as held in **DT Dobie (k) Ltd vs Muchina (1980) eKLR** 21. In this suit, the Plaintiff’s main dispute is that there is an intended public auction of his land by the 3rd Defendant at the instructions of the 1st Defendant based on an alleged default of a loan facility, whose charge is said to have been fraudulently and illegaly procured using alleged forged documents by the 2nd Defendant disclosed. 22. The court finds that the predominant issue is on the propriety of the charge documents as opposed to use of the land which does not fall within the jurisdiction of the court. 23. The upshot is that the court finds it prudent to strike out the suit brought by way of a plaint dated 15.7.2026 for lack of jurisdiction, with no orders as to costs. 24. Orders accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 27TH DAY OF JULY 2026** **HON. JUSTICE C.K. NZILI** **JUDGE** **In the presence of:** Court Assistant: Julius Mr. Licheli for the Applicant