https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4798

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **MISC. APPLICATION NO. E032 OF 2025** **JOSEPH KINYUA KIRAGU (Suing as the administrator** **of the estate of the late** **KATHINA WATHIMU alias KATHINA THIRIMU)................APPLICANT** **VERSUS** **VIRGINIA WEKANDU GATUMU & 7 OTHERS…....……..RESPONDENT** **RULING** 1. Vide the Notice of Motion application dated 08/10/2025, the Applicant is seeking inter alia, that this Honorable Court withdraw Embu Magistrate’s Court ELC Case No. E044 of 2023 from that Court and transfer it to itself for trial and disposal; that costs be in the cause. 2. The application is based on grounds on the face of the application supported by the affidavit of the Applicant, Joseph Kinyua Kiragu sworn on 08/10/2025. He states that on 17/07/2025, the Honorable Magistrate ordered that he makes this application to transfer the suit to this Court as the Magistrate Court lacks pecuniary jurisdiction to determine the suit. He avers that this was pursuant to an application made before the Magistrate Court that the Court lacked the pecuniary jurisdiction as the suit lands being, Gaturi/Githimu/8831, 8832, 8835, 8836, 8837, 8839 and 8840 were valued at Kshs. 23 million. He avers that this Court has the competent jurisdiction and the Respondents will suffer no prejudice if the orders sought are granted. He annexed a copy of the valuation report. 3. The 3rd Respondents advocate Njeru Ithiga in opposition to the application filed a replying affidavit dated 18/02/2026. He avers that the Magistrate Court found that it had no pecuniary jurisdiction to hear and determine the suit and downed its tools and advised the parties to take the requisite steps. He contends that the Applicant ought to have filed a fresh suit before the court with jurisdiction instead of seeking orders to transfer an incompetent suit as a suit filed in a court without jurisdiction is a nullity in law and incapable of being transferred to another court. He contends that the ELC Court has no power or discretion under section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction. 4. The 4th Respondent’s advocate, Ondago Okoth also filed a replying affidavit dated 20/02/2026. He deposes that the power to transfer suits between courts is provided for under section 18 of the Civil Procedure Act and that the power is ordinarily exercised by the High Court or by a court of equal status within its specialized jurisdiction in circumstances where the originating court it properly seized of jurisdiction but another forum would be more appropriate fro purposes of convenience, expediency or in the interests of justice. He contends that the power of transfer does not extend to validating or sanitizing proceeding instituted before a court that lacked the jurisdiction from the outset and that where a court lacks jurisdiction ab initio, there is no competent suit capable of being transferred to another court. He urges that any purported transfer or continuation of the suit before this court would be legally untenable. 5. The 5th and 6th Respondents advocate, Joe Kathungu Advocate equally filed a replying affidavit dated 19/02/2026 in opposition to the application. He avers that the application is bad in law, lacks merit and is an abuse of the court process. He contends that this Court lacks jurisdiction to transfer a null and void suit to itself or to any other Court. The 7th and 8th Respondents filed grounds of opposition dated 27/02/2026 on the same grounds raised by the 5th and 6th Respondents. 6. The parties agreed to canvass the application by way of written submissions. The Applicant filed submissions dated 28/04/2026 through the firm of Muthoni Ndeke and Company Advocates. He submitted that this Court is clothed with the requisite jurisdiction under section 18(1) of the Civil Procedure Act to withdraw and transfer the suit from the subordinate court to itself for hearing and determination. He submitted that he did not deliberately file a suit before a court without jurisdiction and that the circumstances of the case justify the exercise of this Court’s discretion in favour of the transfer in the interest of justice and in line with Article 159(2)(d) of the Constitution. 7. He argued that striking out the suit and compelling the Applicant to file a fresh suit would elevate procedural technicalities over substantive justice particularly where the dispute concerns land rights and where proceedings had already commenced before the subordinate court. He further argued that the overriding objective under sections 1A and 1B of the Civil Procedure Act obligates the Court to facilitate the just, expeditious, proportionate and affordable resolution of disputes. That the transfer would serve these objectives and prevent unnecessary delay, duplication of proceedings and additional costs to the parties. He urged that the Respondents would not be prejudiced by the orders sought. 8. The 3rd Respondent filed submissions dated 08/05/2026 through the firm of Njeru Ithiga & Company Advocates. He submitted that there are limitations to the powers provided for under section 18 of the Civil Procedure Act and one of them is that the suit sought to be transferred ought to be competent in terms of having been filed in a court of competent jurisdiction. He cited the Court of Appeal case of Equity Bank Ltd vs Bruce Mutie Mutuku T/A Diani Tour Travel (2016) Eklr in support of that position. He submitted that where a suit is filed in a court that lacks jurisdiction to entertain it, the suit is incompetent ab initio and would not be available for transfer as is in the instant case. He urged that the application herein is frivolous, a clear and deliberate abuse of court process and a waste of judicial time and therefore should be struck out with costs to the 3rd Respondent. 9. I have considered the application, the responses thereto and the parties' submissions. I find that the issue for determination is whether this Court has jurisdiction to withdraw and transfer Embu Magistrate's Court ELC Case No. E044 of 2023 to itself for hearing and determination. 10. The Applicant seeks to have this Court transfer the suit, originally filed before the Magistrate's Court, to this Court for hearing and determination on the ground that the Magistrate's Court lacks the pecuniary jurisdiction to hear and determine the suit. The application is made pursuant to the ruling of the lower court dated 17/07/2025 in which the court found that it lacked pecuniary jurisdiction to determine the suit based on a valuation report by Agility Valuers Limited which found that the suit lands have a value of Kshs. 23,000,000/=. 11. The Applicant argues that this Court has jurisdiction to transfer the suit under Section 18(1) of the Civil Procedure Act. The Respondents, on the other hand, have argued that the lower court case, having been filed in a court without competent jurisdiction, was void ab initio and, therefore, this Court has no power to transfer a void suit. 12. Section 18(1) of the Civil Procedure Act provides that— 13. On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage— 14. transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or 15. withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter— 16. try or dispose of the same; or 17. transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or 18. retransfer the same for trial or disposal to the court from which it was withdrawn. 19. The scope of the Court's powers under Section 18 of the Civil Procedure Act has been considered in numerous decisions. in the case of [Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] KECA 250 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/250/eng%402016-10-14) the Court of Appeal stated as follows: “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. 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.” 1. See also the case of [Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/767/eng%402019-05-10) where the Court of Appeal observed as follows: “Decided cases on this issue are legion and we cannot cite all of them. The case of **Joseph Muthee Kamau & Another v. David Mwangi Gichure & Another (2013) eKLR**is however on all fours and addresses the issue raised by Ms. Wambua as to whether the subordinate court could still hear the suit but only allow the maximum damages allowable within its pecuniary jurisdiction. The Court succinctly settled this point in the following words:- “**When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that; the most famous being Kagenyi v. Musirambo (1968) EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claimed exceeds the court’s pecuniary jurisdiction.** We hold that jurisdiction cannot be conferred at the time of delivery of judgment. Jurisdiction does not operate retroactively. Jurisdiction must exist at the time of filing suit or latest at the commencement of hearing.” 1. From the above, it is not in doubt that the power conferred upon the Court under Section 18 of the Civil Procedure Act is exercisable only in respect of a competent suit. Where a suit is instituted before a court which lacks jurisdiction, such a suit is incompetent ab initio and there is no valid suit capable of being withdrawn and transferred to another court. 2. In the circumstances, I find that this Court lacks the jurisdiction to withdraw and transfer Embu Magistrate's Court ELC Case No. E044 of 2023 to itself for hearing and determination. The Applicant's remedy, if so advised, lies in instituting a fresh suit before a court of competent jurisdiction. 3. Consequently, I find no merit in the Notice of Motion dated 08/10/2025. The same is hereby dismissed with costs to the Respondents. **DATED, DELIVERED AND SIGNED AT EMBU THIS 23RD DAY OF JULY, 2026.** **……………………………………** **HON. E.C CHERONO** **ELC JUDGE, EMBU** In the presence of; 1. Githinji H/B Njeru Ithiga for the 3rd Respondent 2. Mr. Ondago H/B Mr. Kimathi for the 4th Respondent 3. Mr. Muriithi H/B for Mr. Kiongo for the 7th & 8th Respondents 4. 1st Respondent in person-present 5. 2nd Respondent in person-present 6. Ruth C/A