https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5275

**REPUBLIC OF KENYA** **ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCMISC NO. E205 OF 2022** **EVEREADY SECURITY GUARDS LIMITED…..........................APPLICANT** **-VERSUS-** **ESTEEEM ENERGY LIMITED.............................................RESPONDENT** **RULING** 1. Before this court is the notice of motion dated 6th October 2025, filed by the respondent and it is expressed to be brought under **Articles 40,50** and **159** of the **Constitution** of Kenya and **Section 80** of the **Civil Procedure Act** and **Order 45** of the **Civil Procedure Rules** seeking the following orders: 2. ***Spent.*** 3. ***Spent.*** 4. ***This*** ***honourable court be pleased to review, vary, and or set aside its ruling and orders of 29th February, 2024 withdrawing from and transferring the civil suit in Nairobi Commercial Courts Civil Case No. E3624 of 2022; Esteem Energy Limited versus Eveready Security Guards Limited and find that the civil suit having been filed in a court without jurisdiction was incompetent and incapable of being validly transferred to this court.*** 5. ***Leave be and is hereby granted to the respondent to file a fresh and competent suit before this honourable court within seven (7) days of the order hereof.*** 1. ***Upon the grant of the leave in (d) above and the filing of the fresh and competent suit, the interim orders issued on 31st October, 2024 do apply until the fresh and competent suit is heard and determined.*** 2. ***In the alternative to prayer (d) above, leave be and is hereby granted to the respondent to amend the pleadings and prayers to its plaint dated 13th July, 2022 in terms of the annexed draft within seven (7) days of the order hereof.*** 3. ***In the alternative to prayer (d) above, leave be and is hereby granted to the respondent to amend the pleadings and prayers to its plaint dated 13th July, 2022 in terms of the annexed draft within seven (7) days of the order hereof.*** 4. ***The costs of this application be in the cause.*** 5. The application is premised on the grounds on its face. It is further supported by the affidavit of Hassan Ibrahim Issak sworn on even date. He deposed that the respondent is the owner of the parcel of land known as L.R No. 209/22665 (Original Number 209/5924), and that on 4th July 2022, the applicant trespassed onto the suit property without authority. It was deposed that these actions by the applicant forced the respondent to institute the suit in Nairobi chief magistrate’s commercial courts vide civil case no. E3624 of 2022; Esteem Energy Limited versus Eveready Security Guards Limited through the plaint dated 13th July, 2022. 6. The respondent deposed that the plaint was accompanied by a notice of motion dated 13th July, 2022 seeking injunctive orders, which application was granted and orders issued on 26th July, 2022. In response to the suit in the lower court, the applicant filed a defence and counterclaim dated 7th September, 2022 and a notice of motion of even dated seeking injunctive orders and striking out of the suit for want of jurisdiction. In addition, the applicant further commenced the instant miscellaneous cause through its originating notice of motion application dated 24th September, 2022. 7. The respondent deposed that they are aware that the court determined the originating notice of motion application in favour of the applicant through its rulings dated 29th February, 2024 and 31st October, 2024. Through the ruling delivered on 24th February 2024, the court withdrew the suit from the chief magistrate's court and transferred it to itself for determination, and that at paragraph 46 of the ruling, the court held that the order for withdrawal is on account of the subordinate court lack of pecuniary jurisdiction to handle the matter, as the value of the suit property was in excess of Kshs.40,000,000/-. 8. On the other hand, through the ruling delivered on 31st October 2024, this court issued a mandatory injunction restoring the applicant to the suit property, and a temporary injunction prohibiting any dealings pending the hearing and determination of this suit. The respondent deposed that the said civil case no. E3624 of 2022 is now listed for hearing on 28th October, 2025 in the instant miscellaneous cause, which date is fast approaching. 9. The respondent having appointed a new firm of advocates to represent it in this matter, they have been advised that there exists an error apparent on the face of the record that is sufficient to warrant the review, setting aside, and or varying of the orders of 29th February, 2024 as proceedings instituted before a court without jurisdiction are a nullity and cannot be transferred. 10. It was further deposed that this court has neither the jurisdiction to hear and determine an incompetent suit filed in a court without jurisdiction, nor can it determine proprietary interests in a miscellaneous cause instead of a substantive suit. The respondent deposed that unless this court urgently stays the instant proceedings and grants the orders sought, the respondent will be compelled to participate in proceedings before a court that has no jurisdiction and will have its proprietary interests in the suit property determined in a defective miscellaneous cause. 11. The applicant opposed the application vide the replying affidavit of Lucy Gathoni Wachira, the managing director sworn on 23rd April, 2026. The applicant deposed that it is the registered proprietor of the suit property as per certificate of title annexed and marked LGB-1, and has been in occupation and possession of the same since 1997 except for the short period of time that the respondent trespassed onto it. The applicant further deposed that on 29th February 2024, this court ordered for the transfer of the suit from the lower court to this court for hearing and determination. As a result of the said order, the entire court file in respect of the lower court matter was brought to this court for determination. 12. It was further deposed that the applicant proceeded to amend its defence and counterclaim based on what it had filed before the lower court and filed a pre-trial bundle in support of its case. That instead of amending its pleadings as it had been allowed to do on 31st March 2025, the respondent filed the instant application. Further, that as per **Order 45** of the **Civil Procedure Rules** and **Section 80** of the **Civil Procedure Act**, the respondent has not demonstrated sufficient cause that would warrant this court to set aside the order made on 29th February, 2024. 13. The application was canvassed through written submissions. The respondent filed written submissions dated 23rd April, 2026 while the applicant filed written submissions dated 14th May, 2026. I have considered the pleadings filed as well as the written submissions. The issue for determination is *whether the application has merit.* 14. The instant application by the respondent seeks among other orders, a review, variation , and or setting aside the orders of this court granted on 29th February, 2024 withdrawing and transferring the civil suit in Nairobi Commercial Courts Civil Case No. E3624 of 2022, from the subordinate court to this court. The respondent argued that the civil suit having been filed in a court without jurisdiction was incompetent and incapable of being validly transferred to this court. 15. **Section 80** of the **Civil Procedure Act** provides that:- ***“Any person who considers himself aggrieved—*** ***by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred;*** ***or*** ***by a decree or order from which its term on 1st October 1976, no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit”*** 1. **Order 45 Rule 1** of the **Civil Procedure Rules** provides that:- **“Any person considering himself aggrieved—** ***(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or*** ***(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”*** 1. The requirements necessary for orders of review to be granted have been widely elaborated by the courts. In the case of **Francis Njoroge v Stephen Maina Kamore [2018] eKLR** the court held that:- ***“Therefore, Order 45 of the Civil Procedure Rules, 2010 is very explicit that a court can only review its orders if the following grounds exist:-*** 1. ***There must be discovery of a new and important matter which after the exercise of due diligence, was not within the knowledge of the applicant at the time the decree was passed or the order was made; or*** 2. ***There was a mistake or error apparent on the face of the record; or*** 3. ***There were other sufficient reasons; and*** 4. ***The application must have been made without undue delay.”*** 5. The respondent’s reason for the review is that they argue that the said civil case no. E3624 of 2022 was transferred to this court without jurisdiction. In the case of **Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] KECA 250 (KLR)** it was held that:- ***“In numerous decided cases, courts, including this court have held that it would be illegal for the high court in exercise of its powers under Section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. 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.”*** 1. It is not disputed by the parties herein that the magistrate’s court lacked the pecuniary jurisdiction to handle the matter, hence why the applicant applied to have this court transfer the matter to itself to handle the same. While persuaded by the above authority, it is my finding that indeed there was an error to the effect that this court did not have the jurisdiction to transfer the suit particularly so where the magistrates’ court equally lacked the same jurisdiction. It would have been a different reason altogether if the suit was transferred on other grounds except pecuniary jurisdiction. With that said, it would be contrary to the law to allow the extension of injunction orders issued based on a flawed process. The most suitable approach is for the respondent to commence the suit on a clean slate. Let me also add that the court is hesitant to grant the orders allowing amendment of the plaint and the continued operation of the orders granted on 2. From the above, I find merit in the notice of motion dated 6th October 2025 and I grant the following orders:- 3. ***The orders issued on 29th February, 2024 withdrawing from and transferring the civil suit in Nairobi Commercial Courts Civil Case No. E3624 of 2022; Esteem Energy Limited versus Eveready Security Guards Limited are hereby set aside for want of jurisdiction.*** 4. ***Leave is hereby granted to the respondent to file a fresh suit before this court within seven (7) days from the date hereof.*** 5. ***I make no orders as to costs.*** It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY THIS** **12TH DAY OF AUGUST, 2026.** **HON. MBOGO C.G.** **JUDGE** **12/08/2026.** ***In the presence of:-*** *Mr. Benson Agunga – Court assistant* *Dr. Kamau Kuria for the Defendant* *Mr. Ndegwa holding brie for Mr. Ikua for the Respondent*