https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8659

Kimani & 2 others (Suing as Administrators of the Estate of the Late Pius Kimani Mwaura) v Lango Supermarkets Ltd (Civil Appeal E980 of 2024) [2026] KEHC 8659 (KLR) (Civ) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 8659 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E980 of 2024 WA Okwany, J June 18, 2026 Between John Mwaura Kimani 1st Appellant Monicah Njoki 2nd Appellant Nancy Wanjiru Kimani 3rd Appellant Suing as Administrators of the Estate of the Late Pius Kimani Mwaura and Lango Supermarkets Limited Respondent Ruling 1.This ruling is in respect to the Respondent's Preliminary Objection dated 7th October 2025 challenging the jurisdiction of this Court to entertain the appeal and the Appellants' application dated 1st October 2025 seeking to transfer the appeal to the Environment and Land Court (ELC). 2.The Respondent contends that the dispute concerns land and tenancy rights and therefore falls within the exclusive jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. It argues that since the appeal was filed before a court lacking jurisdiction, it is a nullity incapable of transfer. 3.The Appellants, on the other hand, concede that the appeal was filed in the wrong forum but urge the Court to invoke its powers under Section 18 of the Civil Procedure Act, Sections 1A and 3A thereof, and its inherent jurisdiction to transfer the appeal to the Environment and Land Court in the interests of substantive justice. Issues for Determination 4.I have carefully considered the pleadings filed herein and the parties’ respective submissions. I find that the main issues for determination are: -a.Whether the Preliminary Objection raises a pure point of law.b.Whether this Court has jurisdiction to entertain the appeal.c.Whether this Court has power to transfer the appeal to the Environment and Land Court.d.What orders should issue as to costs. Analysis and Determination 5.The law governing preliminary objections was settled in Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696, where the Court held that a preliminary objection must raise a pure point of law capable of disposing of the matter without recourse to evidence. 6.The objection herein challenges the jurisdiction of this Court. Jurisdiction is a pure question of law and may be raised at any stage of proceedings. The Preliminary Objection is therefore properly before the Court. 7.I note that the memorandum of appeal challenges a decision of the Business Premises Rent Tribunal concerning a landlord-tenant dispute arising from leased premises. The grounds of appeal relate to termination of tenancy, alleged breach of lease terms, user of premises and occupation rights. 8.Article 162(2)(b) of the Constitution mandates Parliament to establish a court with the status of the High Court to hear and determine disputes relating to the environment and the use, occupation and title to land. 9.Section 13(2) of the Environment and Land Court Act confers upon the Environment and Land Court jurisdiction over disputes relating to land, leases, tenancies, licences and other interests in land. 10.In Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Ltd & 2 Others [2012] eKLR the Supreme Court emphasized that a court's jurisdiction flows from the Constitution or statute and cannot be assumed or expanded by judicial craft. 11.Having considered the nature of the appeal and the reliefs sought, I am satisfied that the dispute concerns landlord-tenant rights arising from occupation and use of land and falls within the jurisdiction of the Environment and Land Court. 12.Accordingly, I find that this Court lacks jurisdiction to hear and determine the substantive appeal. 13.On the central issue of whether the Appeal may nevertheless be transferred to the Environment and Land Court, the Respondent relied on several authorities including; Owners of Motor Vessel "Lillian S" vs. Caltex Oil (Kenya) Ltd [1989] KLR 1 and Equity Bank Limited vs. Bruce Mutie Mutuku t/a Diani Tour Travel [2016] eKLR for the proposition that proceedings instituted before a court lacking jurisdiction are a nullity and incapable of transfer. 14.The Appellants, however, urge the Court to adopt the more recent jurisprudence recognizing the constitutional status of the High Court and courts of equal status and permitting transfer where the matter was filed in the wrong superior court. 15.I have considered the decision cited by the Appellants in Kaunda vs. Wambua [2025] KEELC 802 (KLR) where the Court held that the High Court and courts of equal status possess the constitutional and inherent power to transfer matters between themselves where justice demands such transfer. 16.I am persuaded that a distinction must be drawn between a matter filed in a court completely devoid of judicial authority over the subject matter and a matter filed in one superior court instead of another superior court of equal constitutional status. 17.The High Court, the Environment and Land Court and the Employment and Labour Relations Court are all superior courts established under the Constitution and exercising judicial authority under Article 159. 18.Section 18 of the Civil Procedure Act empowers the High Court to transfer proceedings, while Sections 1A and 3A preserve the Court's overriding objective and inherent powers to facilitate the just, proportionate and efficient resolution of disputes. 19.The mistake herein was not filing before a tribunal or subordinate court lacking constitutional competence, but filing before the High Court instead of the Environment and Land Court, a court of equal status. 20.My view is that striking out the appeal would elevate form over substance, occasion unnecessary delay and expense, and compel the parties to recommence proceedings despite the dispute already being before a superior court of competent constitutional standing. 21.Article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities. 22.In the circumstances of this case, and in the interests of substantive justice, I find that the appropriate course is not to strike out the appeal but to transfer it to the court vested with the requisite jurisdiction. 23.The Respondent's objection therefore succeeds only to the extent that this Court lacks jurisdiction to determine the appeal on the merits. It however fails insofar as it seeks the striking out of the appeal. 24.Accordingly, I make the following orders:a.The Preliminary Objection dated 7th October 2025 is upheld to the extent that this Court lacks jurisdiction to hear and determine the appeal.b.The prayer seeking striking out of the appeal is declined.c.Pursuant to Section 18 of the Civil Procedure Act, Sections 1A and 3A thereof, Article 159(2)(d) of the Constitution and the inherent powers of the Court, Civil Appeal No. E980 of 2024 is hereby transferred to the Environment and Land Court at Nairobi for hearing and determination.d.The Deputy Registrar shall forthwith transmit the court file to the Deputy Registrar of the Environment and Land Court.e.Costs of the Preliminary Objection shall abide the outcome of the appeal before the Environment and Land Court.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE 2026.HON. W A OKWANYJUDGEIn the presence of;Ms Kiarie for Ndungu for AppellantMs Mwangi for Maingi for RespondentAbdirizak - Court Assistant