https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12914

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYERI** **ELCA NO. 38 OF 2024** **ANN WAMBUI MWANGI...................…………………………APPELLANT** **-VERSUS-** **ESTHER WAITHIRA KING’ORI………...………………….RESPONDENT** ***This is an appeal from the Judgment dated 17th March 2022, rendered in Nyeri Chief Magistrate’s Court Case No. 5 of 2021, presided over by Hon. Nelly Kariuki, SPM.*** **JUDGMENT** 1. The Appellant lodged an appeal before this Court challenging the judgment rendered on 17th March 2022 in **Nyeri Chief Magistrate’s Court Case No. 5 of 2021**, presided over by Hon. Nelly Kariuki, SPM. 2. The Appellant submitted a Memorandum of Appeal dated 18th March 2022, outlining the grounds of appeal that the Learned Trial Magistrate erred both in law and fact by dismissing the case due to lack of jurisdiction and by ruling that specific performance could not be granted. The Appellant respectfully requests that: 3. **The judgment of the Court dated 17th March 2022, be reviewed and/or set aside, and judgment shall be entered in favour of the Appellant.** 4. **The Appellant be awarded the costs of the suit in the Lower Court together with the costs of this appeal.** **Summary of the suit before the Trial Court** 1. The suit before the Trial Court was instituted by Plaint dated 16th December 2020, in which the Plaintiff, who is the Appellant herein, averred that on or about the 23rd October 2015, the Plaintiff and the Defendant entered into an agreement for the sale of land known as LR. No. Gakawa/Githima Block 3/Mikumbune/85, measuring 0.7720 hectares, registered in the Defendant’s name, with the consideration price of Ksh.1,000,000/= as mutually agreed. 2. On the date of the material agreement, the Plaintiff remitted Kshs.168,819.39/= in cash to the Defendant as a deposit. Furthermore, she contributed Kshs.231,180.61 to *‘Time U Sacco Society Ltd’* to settle a loan facility secured by the vendor. 3. Subsequently, on 21st November 2015, the Plaintiff remitted, and the Defendant acknowledged receipt of Kshs. 600,000/= as complete and final settlement for the transfer of the subject land. Both parties endorsed the acknowledgement receipt in the presence of a High Court Advocate at Nanyuki. 4. The Defendant committed to transferring the land parcel to the Plaintiff and secured approval from the Land Control Board, Kieni East. However, the Defendant subsequently declined to sign the transfer documents without providing any explanation. 5. The Plaintiff consequently requested an order for specific performance and associated costs. 6. The Defendant failed to appear to defend her case. The Plaintiff was the sole witness heard on 30 November 2021 and adopted her witness statement along with the bundle of documents as her primary evidence. 7. Judgment was delivered on 17 March 2022, in which the Trial Court held that the suit land, LR. No. Gakawa/Githima Block 3/Mikumbune/85, measuring 0.7720 Ha, is situated in Meru County, Nkubu Sub-County, and falls outside the Court's territorial jurisdiction. 8. Secondly, the Trial Court determined that the nature of the prayers lacked specificity and did not specify an actionable request capable of enforcement through a Court order, further emphasizing that Court orders cannot be issued without purpose. The Court considered this latter point to be an objection and accordingly struck it out. The Appellant hereby appeals from this decision. 9. The Respondent also neglected to make an appearance in this appeal, notwithstanding multiple affidavits of service on record submitted by the Appellant herein. 10. The Appellant submitted written arguments, which the Court has duly reviewed and considered. **Analysis and Determination** 1. The foundation of this appeal rests upon the judgment issued on 17th March 2022 in **Nyeri Chief Magistrate’s Court Case No. 5 of 2021** by Hon. Nelly Kariuki, SPM, whereby the suit was dismissed due to lack of jurisdiction, and the order for specific performance was deemed neither sufficiently clear nor actionable. Consequently, the matters for consideration in this appeal are as follows: 2. **Did the Trial Court err in striking out the suit for want of jurisdiction?** 3. This constitutes a first appeal; consequently, this Court bears the obligation to reassess and re-analyze the evidence submitted to the Trial Court independently and impartially. In executing this review, the Court must consider that the Trial Court had the benefit of observing and hearing the witnesses directly. Refer to **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123**. 4. The Trial Court in this matter determined that the suit property, LR. No. Gakawa/Githima Block 3/Mikumbune/85, encompassing an area of 0.7720 hectares, is located within Meru County. Consequently, the Court found that it lacked territorial jurisdiction and therefore dismissed the suit. 5. However, in my considered opinion, the fact that the subject matter falls outside a Court’s territorial jurisdiction does not justify the striking out of a suit. The Court of Appeal sitting in Nakuru, in the case of **Moi Teaching and Referral Hospital & 3 others v Gikenyi B & 152 others (Civil Appeal E107 & E116 of 2024 (Consolidated)) [2025] KECA 937 (KLR) (23 May 2025) (Judgment)**, on a similar issue articulated the following: ***“We will next address the argument faulting the trial judge for entertaining the petition despite lacking territorial jurisdiction to hear and determine the case. The appellants’ argument is that the petition should have been filed where the respective State agencies sued are headquartered. Territorial jurisdiction is the power of a court to hear and determine a case based on the geographical location of the events or individuals involved in the suit. It refers to the court's competence to exercise its authority within a specific geographical area. However, an objection to territorial jurisdiction and pecuniary jurisdiction is different from an objection to jurisdiction over the subject-matter. An objection for want of territorial jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit.*** ***Courts must always strive to strike a balance between the principles of territorial jurisdiction, the right to access justice and the right to have any dispute determined by the Court, a key cornerstone of the Rule of law. Decisions on objections citing territorial jurisdictional should be made on a case-by- case basis, taking into account the specific circumstances of the case and the potential impact on the party's ability to access justice.”*** 1. In the case of **Matete v Co-operative Bank of Kenya Ltd (Civil Appeal E539 of 2024) [2026] KEHC 1661 (KLR) (Civ)**, the Court found as follows: ***“The trial court, no doubt, had substantive jurisdiction to hear the matter. It fell within its pecuniary jurisdiction.*** ***Territorial jurisdiction is not substantive. It is administrative, and, therefore, procedural. It is meant for the convenience of the parties, to have disputes settled within the areas where the cause of action arise, to facilitate easier attendance in court by witnesses, among other factors. Territorial jurisdiction cannot trump or override substantive jurisdiction. A suit could be dismissed, for being filed in a court lacking substantive jurisdiction, but not where territorial jurisdiction lacks. A court lacking territorial jurisdiction, ought not strike out a suit, but it should, instead, invite the parties to apply for transfer of the matter to the court with jurisdiction.*** ***Substantive jurisdiction goes to substance, and lack of it cannot be overridden by Article 159 of the Constitution. Territorial jurisdiction is administrative and procedural, it is provided in the Civil Procedure Act, which governs procedure, and not by the Magistrate’s Court Act, Cap 10, Laws of Kenya, which provides for substantive jurisdiction. Territorial jurisdiction can be overrun by Article 159 of the Constitution, as a technicality of procedure.”*** 1. In any case, the Land Control Board that granted consent for the transfer of the subject land is the Kieni East Board, situated within Nyeri County. Additionally, there exists a letter dated 17th August 2020 in the Plaintiff’s collection of documents, found on page 19 of the Record of Appeal, authored by the Chief of Githima Location, and addressed to the Nyeri County Land Registrar. This letter confirms that the subject land is located in Gathiuru Sub-Location within Githima Location, in Nyeri County. Consequently, the Trial Magistrate erred in concluding that the case did not fall within her territorial jurisdiction. 2. **Did the Trial Court err in finding that the prayer for specific performance was not sufficiently specific to an action capable of enforcement by a Court order?** 3. The Trial Magistrate concluded, towards the conclusion of paragraph 3 of her judgment, that: ***“Secondly, while direct, the nature of prayers is not specific and does not provide an actual action capable of enforcement by a court order. Court orders cannot be issued in vain. Consequently, the Plaintiff can only rectify her omissions as required by the law in the circumstances”*** 1. The Plaintiff, in her Plaint, articulated three prayers: an order for specific performance, the costs of the suit, and any other relief that the Court may consider appropriate. Accordingly, the Trial Court was addressing the prayer for specific performance. 2. The Appellant referenced the case of Reliable Electrical Engineers (K) Ltd v Mantrac Kenya Limited [2006] KEHC 2855 (KLR), wherein Justice Maraga (as he then was) determined that: ***“Specific performance, like any other equitable remedy, is discretionary and the court will only grant it on the well settled principles.*** ***The jurisdiction of specific performance is based on the existence of a valid, enforceable contract. It will not be ordered if the contract suffers from some defect, such as failure to comply with the formal requirements or mistake or illegality, which makes the contract invalid or unenforceable. Even where a contract is valid and enforceable specific performance will, however, not be ordered where there is an adequate alternative remedy. In this respect damages are considered to be an adequate alternative remedy where the claimant can readily get the equivalent of what he contracted for from another source. Even where damages are not an adequate remedy specific performance may still be refused on the ground of undue influence or where it will cause severe hardship to the defendant.”*** 1. The Trial Court did not render a decision regarding the validity and enforceability of the Agreement for Sale. Nonetheless, from a legal perspective, the Agreement for Sale dated 23rd October 2014 satisfies all requisite conditions. It is documented in writing, explicitly states the terms, and was duly executed by both parties with proper witnessing. Additionally, acknowledgements of various payments towards the consideration amount were recorded, with the final acknowledgement dated 21st November 2015, signifying that the full payment for the suit property has been made and confirming this as the final instalment. Furthermore, Consent from the Land Control Board was obtained. Consequently, there is no indication that the Agreement is unenforceable in any manner. Specific performance remains the most appropriate remedy for such agreements. 2. The Trial Court determined that the request for specific performance lacked sufficient specificity and did not delineate a precise action capable of enforcement through a Court order. The remedy of specific performance stems from the provisions of the Sale Agreement. Clause 7 of the Sale Agreement dated 23rd October, 2015, stipulates that the Vendor is obliged to deliver the completion documents to the purchaser to facilitate the transfer. This would have been the appropriate order for the Trial Court to issue to provide a remedy for the Respondent’s breach. 3. In conclusion, the Trial Court erred in dismissing the suit for the reasons outlined above, and the present Appeal is hereby upheld as prayed, with the Appellant's requests in the Lower Court granted, along with costs awarded in this appeal and at the Lower Court. **Dated, signed, and delivered virtually at Nyeri on this 5th day of August 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Mr. Gori for the Appellant** **Denis - Court Assistant** **In the Absence of:** **The Respondent (in person)**