https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3946

Keitany v Kenya Railways Corporation (Environment and Land Miscellaneous Case E106 of 2025) [2026] KEELC 3946 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEELC 3946 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Miscellaneous Case E106 of 2025 CG Mbogo, J June 30, 2026 Between Jospeh Kiplagat Keitany Applicant and Kenya Railways Corporation Respondent Ruling 1.Before me is the notice of motion dated 28th April, 2025 filed by the applicant, and it is expressed to be brought under Article 165(6) of the Constitution, Section 3 & 19(2) of the Environment and Land Court Act, Section 18 of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules seeking the following orders:-1.Spent.2.Pending the hearing and determination of this application, there by a stay of proceedings and/or further proceedings in Milimani Commercial Magistrates Court ELC Case No. E412 of 2023; Joseph Kiplagat Keitany v Kenya Railways Corporation.3.Milimani Commercial Chief Magistrate Court ELC Case No. E412 of 2023; Joseph Kiplagat Keitany V Kenya Railways Corporation be withdrawn from the Chief Magistrate’s Court and transferred to the Environment and Land Court at Nairobi for hearing and determination.4.This honourable court be pleased to make such further orders as it deems fit and just.5.Costs of this application be in the cause. 2.The application is premised on the grounds on its face. It is further supported by the affidavit of the applicant sworn on even date. He deposed that he is the registered proprietor of LR. No. 209/13322 (currently Nairobi Block 54/7, Makongeni), located near city stadium off jogoo road which he has enjoyed quiet possession for many years until 2021, when employees or agents of the respondent began harassing him and attempted to fence off portions of the land. 3.The applicant deposed that he had instituted a case in the milimani commercial court (ELC Case No. E412 of 2023) on 2nd October 2023, seeking a permanent injunction against the respondent. Further, that owing to the conflicting valuation reports on the value of the suit property, the magistrates court lacks pecuniary jurisdiction to hear and determine the matter. 4.He deposed that since the property value appreciated and yet the respondent was challenging the magistrate’s court’s jurisdiction based on these values, the suit ought to be transferred to this court for hearing and determination. The applicant urged the court that it was in interest of justice to have the matter transferred since the dispute has been pending since October 2023. 5.The application was opposed vide the respondent’s grounds of opposition dated 15th May, 2025 on the following grounds:-1.The application is premature, speculative and an abuse of the court process since the issue of jurisdiction is still pending determination Milimani MCELC No. E412 of 2023: Joseph Kiplagat Keitany Vs Kenya Railways Corporation.2.It is speculative for the applicant to apply to transfer the suit from the lower court on the basis that the jurisdiction of the trial court is being challenged before the lower court makes a determination whether it has jurisdiction or not.3.This court lacks jurisdiction to entertain the present application to transfer in view of the pending application challenging the jurisdiction of the lower court.4.The application offends the doctrine of sub judice under Section 6 of the Civil Procedure Act because: -a.The instant application seeks to transfer the suit to this court on account the lower does not the pecuniary jurisdiction over the subject matter of the suit.b.The issue of jurisdiction is pending hearing and determination before the lower court.c.Section 6 of the Civil Procedure Act prohibits this court from proceeding with an issue that is pending before another court of competent jurisdiction.5.The allegations that the value of the suit property was unknown at the time of filing the suit is neither here nor there because it is the duty of an applicant to exercise due diligence and ascertain the value the subject matter of a suit prior to filing the suit. Failure to do so cannot be used as a basis to sustain a defective action.6.Whichever way the court addresses the instant application, the same must fail because of the following reasons: -a.The only question is whether the lower is whether the value of the suit property exceeds pecuniary jurisdiction of the Chief Magistrates Court.b.In the event the value of the suit property exceeds the Kshs.20 Million pecuniary jurisdiction of the lower court, then the lower court must down its tools and dismiss the suit for want of jurisdiction.c.In such an eventuality, there will be nothing to transfer since as suit filed in a court without jurisdiction is nullity ab initio.d.On the other hand, the value of the suit property falls within the pecuniary jurisdiction of the lower court, then the matter ought to proceed for hearing and determination before the lower court in accordance with Section 11 of the Civil Procedure Act requires a suit to be heard in the court of the lowest grade competent to try suit unless there are more than one subordinate courts with competent jurisdiction to try the suit.7.The instant application is an abuse of the court process because it is merely intended to evade/circumvent the outcome of the application challenging the jurisdiction of the lower court. Section 3A of the Civil Procedure Act empowers this court to make necessary orders to prevent abuse of court process. 6.The respondent also filed a replying affidavit sworn by Stanley Gitari the Ag. General manager legal services on 15th May, 2025. The respondent deposed that there was a pending application dated 6th February, 2025 in milimani commercial court which challenged the pecuniary jurisdiction of the subordinate court to hear the matter. It was deposed that the present application was an attempt to evade the jurisdiction challenge already pending in the trial court. 7.It was further deposed that if the property’s value exceeded the trial court's jurisdiction, the original suit was nullity ab initio hence the court has no authority to transfer a suit that was filed in a court lacking jurisdiction in the first place. The respondent urged the court to dismiss the application with costs since it lacked the jurisdiction to transfer a suit from a court that itself did not have the jurisdiction to hear. 8.The application was canvassed through written submissions. The applicant filed his written submissions dated 5th December, 2025 while the respondent filed its submissions dated 9th March, 2026. This court has carefully considered the application, the replies thereof and the written submissions. The issue for determination is whether this court ought to transfer the matter before the subordinate court for hearing and determination by this court. 9.Section 18 of the Civil Procedure Act which provides that;“(1)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—a.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; orb.withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—i.try or dispose of the same; orii.transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; oriii.retransfer the same for trial or disposal to the court from which it was withdrawn.” 10.In deciding whether a suit ought to be transferred from a subordinate court to this court, the question that a party should first satisfy is whether the court from where the matter is sought to be transferred had jurisdiction to handle the matter. This is because jurisdiction is everything, as was stated in the case of Owners of the Motor Vessel “Lillian S” V Caltex Oil (Kenya) Ltd [1989] eKLR. 11.In the instant case, it is not in dispute that there is a pending suit before the magistrates’ court in ELC case no. E412 of 2023 between the parties touching on the suit property. It is also not in dispute that there is a pending application dated 6th February, 2025 by the respondent before the said subordinate court challenging the pecuniary jurisdiction of the court. It is also not in contention that both parties filed conflicting valuation reports dated 23rd December, 2024 for Kshs.24,000,000 and 11th March, 2025 for Kshs.18,000,000 respectively. 12.Notably, the application is still pending before the subordinate court, yet the applicant has filed the present application seeking withdrawal and transfer of the suit to this court. In view of the pending application, the instant application offends Section 6 of the Civil Procedure Act which provides as follows:“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” 13.Even if the subordinate court found that it had no jurisdiction to hear and determine this suit, this court cannot on the grounds of jurisdiction transfer the suit on similar grounds. The Court of Appeal in the case of Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tours & Travel [2016] eKLR stated as follows:-In numerous decided cases, courts, including this court have held 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 with jurisdiction would be to muddle up the waters and allow confusion to reign. A court of law cannot through what can be termed as judicial craftsmanship sanctify an otherwise incompetent suit through a transfer.” 14.From the above, it is evident that want of jurisdiction is not a ground for transfer of suit. The possible option for the applicant would be to perhaps withdraw the suit and file the same in a court with competent jurisdiction. Having said the above, I find the instant application an abuse of the court process and offending Section 6 of the Civil Procedure Act. 15.Therefore, the notice of motion dated 28th April, 2025 is hereby dismissed with costs to the respondent.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 30TH DAY OF JUNE, 2026.HON. MBOGO C.G.JUDGE30/06/2026.In the presence of:Ms. Benson Agunga - Court assistantMs. Kerubo holding brief for Mr. Kiprono for the ApplicantNo appearance for Mr. Ndegwa & Sitonik Advocates for the Respondent