https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3372

Kariuki v Chaka Limited & 3 others (Environment and Land Miscellaneous Case E206 of 2019) [2026] KEELC 3372 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3372 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Miscellaneous Case E206 of 2019 CG Mbogo, J June 4, 2026 Between Wilson M Kariuki Applicant and Chaka Limited 1st Respondent Hon David Kiprono Sudi 2nd Respondent Eunice Kabue Sudi 3rd Respondent and Family Bank Limited Objector Ruling 1.Before me is the notice of motion dated 28th November, 2025 filed by the objector, and it is expressed to be brought under Order 22 Rule 51 of the Civil Procedure Rules and Sections 1A,1B and 3A of the Civil Procedure Act seeking the following orders:- 1.Spent. 2.That pending the hearing and determination of this application, there be a stay of execution of the decree in favour of the applicant as against the respondents, in so far as it relates to motor vehicle registration number KBZ 055K and the intended advertisement/sale of the said motor vehicle by public auction or otherwise is hereby stayed. 3.That the proclamations by the applicant of motor vehicle registration number KBZ 055K pursuant to the decree passed on 21st March, 2023 and the warrants of attachment issued by this court to Jagon Dries Auctioneers dated 19th November, 2025 be raised forthwith and Motor Vehicle KBZ 055K be released to the objectors. 4.That costs be provided. 2.The application is premised on the grounds on its face. It is further supported by the affidavit of Joan Gachomba, the assistant manager legal services employed of the objector sworn on even date. She deposed that the applicant instructed its agents, Jagon Dries Auctioneers, to proclaim motor vehicle registration number KBZ 055 who proceeded to attach the motor vehicle vide the proclamation notices dated 19th November, 2025. 3.The objector deposed that the bank has a legal interest in the motor vehicle which ranks in priority to that of the applicant, having advanced a loan facility to the 2nd respondent of Kshs.1,800,000.00/= with the motor vehicle registered in the joint names of the 2nd respondent and itself to protect their interests. The objector deposed that it was not aware of the suit until now, since it was not a party to the suit. 4.It was deposed that the loan is still outstanding in the sum of Kshs.1,470,245.35/= and that the objector’s rights have not been extinguished. The objector contended that if the motor vehicle is sold or attached in the execution of the decree, its legal interest, protected in statute as a secured creditor, will be defeated and it will suffer prejudice as the loan will remain exposed and thus will not recover the full amount due and owing. 5.The applicant filed his replying affidavit sworn on 26th January, 2026 in response thereto. He deposed that the auctioneers filed their bill of cost which was duly taxed and certified by the deputy registrar on 28th of February 2023, at Kshs.1,876,300/=. Thereafter, they received a certificate of taxation and proceeded with execution, leading to the lawful attachment of the motor vehicle on 5th of April, 2023. 6.He deposed that the respondents took out a loan after the subject motor vehicle, had already been proclaimed in execution proceedings, noting that the loan was obtained on 2nd October, 2024, when the said motor vehicle was already under execution and therefore encumbered by a prior legal claim. Further, the objector either knew or ought to have known, after thorough due diligence, that the motor vehicle was subject to execution, and cannot now claim ignorance or priority. 7.Further to this, that at the time the objector obtained the orders stopping the sale of the motor vehicle, the vehicle had already been sold on 28th November, 2025, rendering the said orders moot. He deposed that the objector’s remedy, if any, lies against the respondents and not against a completed court-sanctioned execution process. 8.The objector filed a further affidavit sworn on 20th February, 2026. The objector reiterated the contents of its supporting affidavit and deposed that there were no valid or subsisting proclamations or warrants of attachment over motor vehicle at the time it advanced the loan facility and subsequently registered its security interest. The objector went on to depose that although the applicant alleges a prior proclamation in April 2023, no evidence has been exhibited to demonstrate that such proclamation remained lawfully in force or was supported by valid and subsisting warrants as of 4th October, 2024. 9.It was further deposed that the attachment carried out on 19th November, 2025 was irregular and unlawful as the applicant and/or auctioneer purported to attach property in which the objector held a perfected and registered security interest without first addressing or settling that secured interest. It was also deposed that the allegation that the motor vehicle was sold on 28th November, 2025 is denied, as no sufficient evidence has been placed before this court to demonstrate that a lawful and completed sale took place. 10.The objector deposed that the motor vehicle remains registered in the joint names of the objector and the 2nd respondent, annexing a copy of the records as dated 20th February, 2026. They contend that the applicant’s assertion that execution takes precedence over its registered interest is legally untenable, as a decree-holder cannot acquire or pass better rights than those held by the judgment debtor, whose interest was already encumbered by the objector’s perfected security. 11.The court directed that the application be canvassed by way of written submissions. The objector filed its written submissions dated 9th April, 2026. By the time of writing this ruling, the applicant had not filed his written submissions. Be that as it may, I have considered the application, the replies thereof and the written submissions filed by the objector. The issue for determination is whether the application has merit. 12.The application herein involves motor vehicle registration number KBZ 055K, over which a decree was issued on 21st March, 2023 and the warrants of attachment issued dated 19th November, 2025. The objector seeks to stay and have the said motor vehicle released to them as they have a registered legal interest over the same. It is unclear to me why this application has been filed in this court. It is trite law that the jurisdiction of this court is limited to disputes relating to the environment, use, occupation, and title to land as enshrined under Article 162(2)(b) of the Constitution. 13.The subject matter of this application being a motor vehicle and the dispute raised by the objector that the same was security for a loan, is commercial in nature, which means that this court is not clothed with the requisite jurisdiction to handle this matter. The only reason that the motor vehicle was brought into this miscellaneous application before the court was through execution to satisfy a court decree. 14.The classic case on jurisdiction is The Owners of the Motor Vessel “Lilian S” Vs Caltex Oil (Kenya) Ltd (1989) KLR 1, where Nyarangi JA held as follows:-“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 15.Having found that I have no jurisdiction to handle the application before me, I must highlight further that I do not have the power to transfer this application to a court of competent jurisdiction. As the learned judges of the Court of Appeal in the case of Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR found that:-“Jurisdiction is a weighty fundamental matter and to allow court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign. It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks, parties cannot even seek refuge under the “O2” principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the situation. In the same way, a court of law should not through what can be termed as judicial craftsmanship sanctify an otherwise incompetent suit through a transfer.In Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & Another [2012] eKLR, it was held as follows: “It is therefore trite that where a suit is instituted before a tribunal having no jurisdiction, such a suit cannot be transferred under section 18 aforesaid to a tribunal where it ought to have been properly instituted. The reason for this is that a suit filed in a court without jurisdiction is a nullity in law and whatever is a nullity in law is in the eyes of the law nothing and therefore the court cannot purport to transfer nothing and mould it into something through a procedure known as “transfer”. In other words, courts can only transfer a cause whose existence is recognized by law.” 16.Having found that this court has no jurisdiction to handle this matter, I must down my tools and dismiss the notice of motion dated 28th November, 2025. I make no order as to costs.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 4TH DAY OF JUNE, 2026.HON. MBOGO C.G.JUDGE04/06/2026.In the presence of:Ms. Vena Atieno - Court assistantMr. Gitau for the ObjectorMr. Morara for the RespondentAngatia Associates for the Applicant – absent