https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3406

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MALINDI** **ELC CASE NO. E128 OF 2024** **SHISHILI TWO THOUSAND INVESTMENT LIMITED…PLAINTIFF** **VERSUS** **PETER MUNGA GICHUHI…………………………….1ST DEFENDANT** **I&M BANK LIMITED……………………………….….2ND DEFENDANT** **LAND REGISTRAR, KILIFI……………………………3RD DEFENDANT** **RULING** 1. On July 17, 2025, this Court ruled on the 2nd Defendant’s Preliminary Objection (PO) dated December 18, 2024, which asserted that the Plaintiff’s case against the 2nd Defendant should be dismissed with costs because this Court lacks jurisdiction to hear and decide issues involving charges and mortgages, which fall under the civil jurisdiction of the High Court. 2. That decision is reported as **Shishili Two Thousand Investment Limited v. Gichuhi & 2 others [2025] KEELC 5384 (KLR).** This is what the court held: ***“I fully agree with Ms. Akwana that matters related to charges, mortgages, and the collection of dues and rents fall under the jurisdiction of the High Court. This Court has consistently ruled in the same manner, citing relevant legal authorities, as seen in Amanye General Suppliers Limited and another v Rafiki Microfinance Bank Ltd & another (Environment and Land Case E078 of 2024) [2024] KEELC 13207 (KLR) (13 November 2024) (Ruling) (supra).*** ***However, a review of the pleadings filed so far reveals that neither party in these proceedings has submitted defenses in this case or provided affidavits to introduce the alleged charge documents or demonstrate that the charge was legally created to counter the Plaintiff's claim that its ownership rights have been circumvented by the creation of that charge, especially now that there is an assertion that the 1st Defendant did not complete the payment of the purchase price.*** ***In my view, this indicates that the PO was filed quite early in the proceedings, and the legal issue raised in the PO cannot be inferred from the materials and pleadings I have seen so far. Based on precedents and criteria established in the Mukisa Biscuit Case (supra), the current PO is not sustainable.*** ***Consequently, the PO dated December 18, 2024, is hereby dismissed with costs.”*** 1. The 2nd defendant is back with an application dated September 23, 2025, seeking orders that the Plaintiff's suit against it be struck out with costs on the ground that the Plaintiff's suit against the Bank is solely founded on a Charge. 2. The subject application is supported by the annexed Affidavit of Andrew Muchina, sworn on the 23rd September 2025. Annexed to the Supporting Affidavit at pages 24 to 57 is a copy of the Charge document dated 31st July 2023, confirming the Chargor as the 1st Defendant in respect of the suit property. The charged amount is KShs. 30,000,000.00 and USD 500,000.00. 3. The Plaintiff has filed a Grounds of Opposition dated October 2, 2025. The Respondent states that the Bank is a necessary party to these proceedings because of the Charge and that the Bank will not be prejudiced if the proceedings herein proceed before this Honorable Court. 4. The application was canvassed through written submissions. I acknowledge receipt of submissions from counsel for the 2nd Defendant/Applicant and from counsel for the Plaintiff/Respondent with much appreciation, as they went a long way to assist the court in reaching a determination on the issues raised in the motion under review. 5. Based on the materials and submissions from the parties, the issues for determination by this court are whether the suit against the 2nd Defendant should be struck out and who should bear the costs of the application. 6. Ms. Akwana, representing the 2nd Defendant, argues that the pleadings clearly show that the suit against the 2nd Defendant involves only a charge. The question of whether this Court can hear and decide a matter solely based on a Charge has now been settled by the Superior Courts. 7. Even if the creation of the charge is disputed, the predominant issue will still be the charge document, and there is no issue as to the use, occupation, or title to land for the ELC to consider. 8. As stated, the Plaintiff asserts that the bank is a necessary party in this matter and that the ELC has jurisdiction. 9. On whether this court has jurisdiction to address issues relating to charges. In the recent case of **Bank of Africa Kenya Limited & another v. TSS Investment Limited & 2 others (Civil Appeal E055 of 2022) [2024] KECA 410 (KLR) (26 April 2024) (Judgment)**, the Court of Appeal held that: ***“We form this view taking to mind this Court’s decision in the afore-cited case of Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others (supra) where it was held that the ELC only has jurisdiction to deal with disputes connected to “use” of land and contracts incidental to the “use” of land, which do not include mortgages, charges, collection of dues and rents which fall within the civil jurisdiction of the High Court. Moreover, a charge is a disposition that has no direct contractual relation to “use” (by a tenant or licensee) as in this case, of a chargor’s land. In view of the foregoing, we agree with learned counsel for the appellants that the learned Judge had no jurisdiction to entertain the respondents’ suit as pleaded.”*** 1. Further, the following decisions support the position that this court lacks jurisdiction deal with disputes involving charges, mortgages, and the collection of dues and rents - including **Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna and 5 others [2017] eKLR**, **Kinuthia v Kanyi and another (Environment and Land Case E007 of 2023) [2024] KEELC 1625 (KLR) (20 March 2024) (Ruling**), **Muyuka and another v Barclays Bank of Kenya and 2 others (Environment & Land Case E005 of 2021) [2023] KEELC 16581 (KLR) (29 March 2023) (Ruling), Thomas Mutuku Kasue v Housing Finance Company Ltd (HFC) and another [2021] eKLR,** **Amanye General Suppliers Limited and another v Rafiki Microfinance Bank Ltd & another (Environment and Land Case E078 of 2024) [2024] KEELC 13207 (KLR) (13 November 2024) (Ruling**), **Masumbuko v National Bank Kenya Ltd (Environment and Land Case 113 of 2020) [2024] KEELC 5454 (KLR) (23 July 2024) (Ruling**), **Dr. Martin Luther MC Were v James Mabango Ambundo (Environment and Land Case E211 of 2021)**, and **Re Estate of Aloysius Ndungu Gakunga (Deceased) [2019] KEHC 9273 (KLR)**. 2. Based on those relevant authorities and the fact that the Plaintiff’s suit against the 2nd Defendant is solely based on a charge, the court lacks jurisdiction to entertain the matter as between the Plaintiff and the 2nd Defendant. 3. Consequently, the motion application dated September 23, 2025, is allowed with costs. **Dated, signed, and delivered at Malindi virtually on this 14th day of May 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Mr. Lisanza for the Plaintiff** **Mr. Gathu, for the 1st Defendant** **Ms. Akwana, for the 2nd Defendant** **Ms.Maiyo for the 3rd Defendant** **Kendi: Court Assistant**