https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4858

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELCLMISC E026 OF 2026** **PHILIP GITAU KINGATI…………………………………………1ST APPLICANT** **ANTONINAH NYOKABI GITAU………………………………2ND APPLICANT** **VERSUS** **HANNAH NYOKABI RURII………………………………….1ST RESPONDENT** **EDGAR KANJAMA RURII………………………………...…2ND RESPONDENT** **ALEX MUNGAI RURII……………………………………..…3RD RESPONDENT** **MERCY WAMBUI RURII…………………………………….4TH RESPONDENT** **(Sued as personal representative of the Estate of EDWARD RURII KANJAMBI) RUKAN LIMITED…………….………………..5TH RESPONDENT** **RULING** 1. This file was referred to the Environment and Land Court from the High Court Thika where the Applicants had filed a Notice of Motion Application dated 6/03/2026 under Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 18(1)(b)(iii), 1A(1), 1B, and 3A of the Civil Procedure Act, Cap 21 Laws of Kenya; and all other enabling provisions of law seeking the following: 2. Spent. 3. **THAT** an Order do issue for the transfer of **MC ELC E259 OF 2025** filed at the Chief Magistrate’s Court, Ruiru to the High Court at Thika for hearing and determination. 4. **THAT** such other and/or further relief be granted as this Honourable Court may deem fit and just to grant in the circumstances of this matter. 5. **THAT** the cost of this Application be in the cause. 6. The grounds upon which the Application is premised are supported by the Affidavit of **KEREN NJERI MWANGI** sworn on even date. The grounds of the Application are that the Applicants seek an urgent transfer of **MC ELC E259 OF 2025** from the Chief Magistrate’s Court at Ruiru to the High Court at Thika because their claim totaling Kshs. 26,000,000/**-** (comprising Kshs. 8,000,000/- in special damages and Kshs. 18,000,000/- for loss of bargain) exceeds the Magistrate Court’s statutory pecuniary jurisdiction of Kshs. 20,000,000/- under Section 7(1) of the Magistrates’ Courts Act. 7. Immediate intervention and priority hearing are necessary because the 1st to 4th Respondents, acting as personal representatives of the deceased's estate, have scheduled a Summons for Confirmation of Grant in **Succession Cause E407 of 2025** for 1/04/2026. If the estate is distributed prior to the resolution of the Applicants' claim and pending summary Judgment application, the Decree sought by the Applicants will be rendered nugatory, leaving no assets remaining to satisfy the debt. 8. The Deponent Keren Njeri Mwangi, an Advocate practicing at **Kimondo Mubea & Co. Advocates**, swore the Supporting Affidavit on behalf of the Applicants, deposing that in December 2025, instructions were received to file a suit against the 1st and 5th Respondents, the 1st to 4th Respondents being sued in their capacity as personal representatives of the Estate of the late Edward Kanjabi Rurii for the recovery of Kshs. 26,000,000/- (comprising Kshs. 8,000,000/- in special damages and Kshs. 18,000,000/- for loss of bargain) arising from an aborted land transaction with the deceased and the 5th Respondent Company due to misrepresentation and material non-disclosure. 9. Pursuant to these instructions, suit was instituted at the Chief Magistrate's Courtat **Ruiru via MC ELC E259 of 2025** annexed and marked as Exhibit **“KNM”**, wherein the Respondents subsequently entered appearance out of time through **M/s Mureithi & Mwaura Advocates LLP** without filing a Defence as shown via annexure and Exhibit **“KNM-2”**, prompting the Applicants to file an application for summary Judgment and priority hearing. 10. However, during preparation, she realized that filing the claim in the subordinate Court was a legal oversight on the part of the advocate, given that the quantum of Kshs. 26,000,000/- exceeds the Subordinate Court’s statutory pecuniary jurisdiction of Kshs. 20,000,000/- under Section 7(1) of the Magistrates’ Courts Act (Cap 10), an error of Counsel that ought not to be visited upon the Applicants who acted entirely on legal advice. 11. Given that the primary cause of action remains a monetary claim for refund and damages, that this Honourable Court possesses the requisite jurisdiction to hear and determine the matter, making it just, fair, and equitable that the suit be transferred to this Court without causing any prejudice to the Respondents. Immediate transfer and certification of urgency are vital because the Respondents have filed a Summons for Confirmation of Grant scheduled for hearing on 13/04/2026 in **HC Succ E407 of 2025 (Milimani)** as annexed and marked as Exhibit **“KNM-3”**, in respect of which the Applicants have filed an application for stay of confirmation pending the determination of their claim, which is listed for directions on 13/04/ 2026 as annexed and marked as Exhibit **“KNM-4”**. 12. That unless this application is heard on a priority basis and the suit transferred, there exists a real risk that the deceased's estate will be distributed prior to the determination of the Applicants' suit, rendering any subsequent decree nugatory and leaving no assets to satisfy the claim. 13. Before the Application was heard the Respondents filed a Preliminary Objection (PO) dated 17/03/2026 challenging the jurisdiction of this Honorable Court to deal with the Application. The PO was raised on the following grounds: 14. **THAT** this Honorable Court lacks the jurisdiction to hear and determine the Applicant's Application for transfer as it is predicated upon a suit that is a nullity *ab initio* for want of pecuniary jurisdiction in the originating Court. 15. **THAT** the power of this Honorable Court to transfer a suit under Section 18 of the Civil Procedure Act is limited to suits that are competently and validly instituted in the Courts receiving them, and does not extend to curing or salvaging proceedings that were incompetent from the outset. 16. **THAT** where a suit is filed before a Court that lacks jurisdiction, no valid suit exists in the eyes of the law, and consequently, there is nothing capable of being transferred to another Court. 17. **THAT** further and in addition to the foregoing, this Honorable Court lacks the subject matter jurisdiction to entertain the transfer of a suit concerning land and/or interests in land, as such matters fall within the exclusive jurisdiction of the Environment and Land Court pursuant to Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act. 18. **THAT** the application is therefore misconceived, legally untenable, and an abuse of the process of this Honorable Court, and the same ought to be struck out with costs to the Respondents. 19. When the parties appeared in Court on 21/07/2026 they sought to canvass their Application by way of written submissions. 20. The centrality of jurisdiction in judicial proceedings is an uncompromising axiom of jurisprudence; without it, a Court cannot take a single step. As the classic dictum by Nyarangi JA in **Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1** established: ***“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings.”*** 1. In the present matter, the Applicants moved under Section 18(1)(b)(iii) of the Civil Procedure Act (Cap 21) seeking the transfer of **MC ELC E259 of 2025** from the Chief Magistrate’s Court at Ruiru to the Environment and Land Court (ELC). However, the Applicants openly concede that their claim of Kshs. 26,000,000/- strictly exceeds the pecuniary jurisdiction capped at Kshs. 20,000,000/- for Magistrates' Courts under Section 7(1) of the Magistrates’ Courts Act (Cap 10). The threshold question raised by the Respondents' Preliminary Objection is whether a Court possesses statutory power under Section 18 of the Civil Procedure Act to transfer and thereby salvage a suit that was an absolute nullity *ab initio* for lack of pecuniary jurisdiction in the originating Subordinate Court. 2. The Respondents’ Preliminary Objection strikes at the foundational competency of the suit, invoking the settled doctrine that a Court cannot transfer what does not legally exist. This legal principle was firmly reiterated by the Supreme Court of Kenya in **Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR,** where the apex Court held: ***“A Court’s jurisdiction flows from the Constitution or the statute or both. A Court cannot compensate for the lack of jurisdiction through craft, nor can it create jurisdiction where none exists.”*** 1. Building upon this principle, Kenyan Courts have consistently ruled that Section 18 of the Civil Procedure Act contemplates the transfer of suits that were *validly and competently* filed in a Court possessing the jurisdiction to entertain them in the first instance. As Madan JA famously observed in the Court of Appeal decision of **Anarita Karimi Njeru v Republic (No. 1) [1979] eKLR:** ***“If a Court has no jurisdiction to entertain a suit, it has no jurisdiction to make any order in it, except an order dismissing or striking out the suit.”*** 1. Consequently, when a suit is instituted in a Subordinate Court lacking pecuniary jurisdiction, the proceedings are void *null and void*, leaving no valid suit capable of being transferred or salvaged by a superior Court. 2. Many decisions made in our Courts have repeatedly tackled this exact conflict between Advocate error and lack of pecuniary jurisdiction, uniformly upholding the Preliminary Objections. In **Elijah Sikona & 2 Others v Daniel Ncharo Ene Memusi [2020] eKLR,** the High Court held that Section 18 cannot be invoked as a conduit to bypass statutory jurisdictional limits, stating: ***“Section 18 of the Civil Procedure Act presupposes that the suit was properly lodged in a Court with jurisdiction. Transfer powers cannot be used to cure or breathe life into a nullity. Where the subordinate Court lacked pecuniary jurisdiction from the onset, the suit is dead at birth.”*** 1. Similarly, decisions in other jurisprudence mirrors this strict approach; as Lord Denning M.R. famously declared in the English case of **MacFoy v United Africa Co. Ltd [1961] 3 All ER 1169**: ***“If an act is a nullity, it is in law a void path. It is automatically null and void without more ado... You cannot put something on nothing and expect it to stay there. It will collapse.”*** 1. While the Applicants urge the Court not to visit the Advocate's oversight upon the litigants pursuant to the overriding objectives under Sections 1A and 1B of the Civil Procedure Act, procedural equity cannot override statutory and constitutional limits on jurisdiction. 2. Finally, the transfer to and allocation within the Environment and Land Court addresses the subject-matter aspect under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; yet, it does not cure the defect of originating pecuniary incompetence. The Court of Appeal in **Phoenix of EA Assurance Company Limited v S. M. Thiga t/a Coral Ridge Spur Restaurant [2019] eKLR** explicitly held: ***“Jurisdiction cannot be conferred by consent of parties, nor can it be assumed by the Court on grounds of sympathy, convenience, or advocate's mistake.”*** 1. Because the originating Plaint at the Ruiru Chief Magistrate's Court was filed in excess of statutory limits, no valid proceedings exist to be transferred under Section 18. Therefore, the Respondents’ Preliminary Objection is legally meritorious: the proper recourse in law is for the subordinate suit to be struck out for want of pecuniary jurisdiction, leaving the Applicants at liberty to institute a fresh, competent suit directly before the Environment and Land Court alongside their requisite interim applications regarding the pending Succession Cause. **Determination and Final Orders** 1. Having carefully considered the Applicants’ Notice of Motion, the Supporting Affidavit, the Respondents’ Preliminary Objection, and the relevant statutory and constitutional framework alongside binding precedent, this Court makes the following findings: 2. ***The Respondents' Preliminary Objection dated 17/03/2026 is merited and is thus upheld.*** 3. ***The Applicants’ Notice of Motion dated 6/03/2026 seeking the transfer of MC ELC E259 of 2025 be and is hereby dismissed.*** 4. ***The suit filed at the Subordinate Court, namely Ruiru MC ELC E259 of 2025, being a nullity ab initio for want of pecuniary jurisdiction, be and is hereby struck out.*** 5. ***The Applicants are at liberty to file a fresh suit competently before the Environment and Land Court of proper jurisdiction, alongside any interlocutory applications as they may deem fit.*** 6. ***The costs of the Preliminary Objection and the Application are awarded to the Respondents.*** **DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 27TH DAY OF JULY 2026.** **…………..…………** **MOGENI J** **JUDGE** **In the presence of:** Miss Mwangi holding brief for Kimondo Mubea for the Applicants Respondents - Absent Mr. Melita - Court Assistant **……………………….** **MOGENI J** **JUDGE**