Jurisdiction of the Environment and Land Court and Charges
Author : CS. Kevin Wakwaya
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- Rachier & Amollo LLP, Mayfair Center 5th Floor
Jurisdiction of the Environment and Land Court and Charges
CS. Kevin Wakwaya
Article Overview
This insight examines the ongoing jurisdictional debate on whether disputes involving charge instruments should be heard by the Environment and Land Court (ELC) or the High Court. It reviews the Court of Appeal’s position in Co-operative Bank of Kenya Limited v Patrick Kang’ethe Njuguna & 5 others [2017] eKLR, later reiterated in subsequent decisions, which held that a charge is a disposition in land rather than “use” of land, and therefore falls outside the ELC’s mandate.
The author critiques that approach as overly literal and inconsistent with the Land Act’s own definition of “court” and the statutory scheme that channels land disputes under the Land Act to the ELC. The article argues that treating charges as outside “use” of land produces absurd outcomes and unjustifiably narrows the ELC’s constitutional and statutory remit.
“If a disposition were held to constitute land use, an absentee landlord with a subsisting legal charge… would always be said to be ‘using’ his land…”
Key takeaways
- Court of Appeal position: a charge is a disposition and not “use of land”, so disputes on charges belong in the High Court, not the ELC.
- Definition of “use” applied by the Court: the Court associated land use with utilisation of the surface, airspace, or ground below for its adapted purpose, distinguishing it from security interests created over land.
- Reaffirmed jurisprudence: the Patrick Kang’ethe position is noted as reiterated in later decisions, including Joel Kyatha Mbaluka v Daniel Ochieng Ogola [2019] eKLR and Bank of Africa Kenya Ltd & another v TSS Investment Ltd & others (Civil Appeal No E055 of 2022, decision delivered 26 April 2024).
- Statutory critique (Land Act): the author highlights that under the Land Act, “court” is defined as the ELC, and sections that allow chargees to seek relief refer to “the court”, raising the question why that should mean the High Court.
- Absurdity and inconsistency risk: the article argues that if “use” excludes interests created over land, it could also exclude other dispositions like leases, which would be an illogical narrowing of ELC jurisdiction.
- Policy angle: the discussion points out that the National Land Use Policy recognises commercial uses as key land uses, and securitisation through charges can fit within that commercial context.
- Jurisdiction clauses cited: the author references Section 150 of the Land Act and Section 101 of the Land Registration Act as granting jurisdiction over disputes under those Acts, without carving out charges.
- Conclusion: the piece calls for revisiting the Court of Appeal approach, arguing it limits the ELC contrary to Article 162 and the wording and intent of land statutes.