https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4025

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC LAND MISC. SUIT NO. E034 OF 2026** **FLORAH MARTHA MUILI LEAH……..………………PLAINTIFF/APPLICANT** **VERSUS** **RICHARD NGWALO….……………………..1ST DEFENDANT/RESPONDENT** **PHILEMONA NZISA…….……………….….2nd DEFENDANT/RESPONDENT** **RULING** **Introduction** 1. Before the Court is a Notice of Motion dated 7th May 2026 brought under Sections 1A, 1B, 3A and 18 of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. In the Application, the Plaintiff/Applicant seeks the following orders: 2. ***Spent;*** 3. ***Machakos Chief Magistrate’s Court Environment and Land Case No. E037 of 2026 pending before Hon. L.B. Koech (SPM) be withdrawn and transferred to Kangundo Law Courts for hearing and determination.*** 4. ***That costs of the application be in the cause.*** 5. Application is supported by the affidavit of **Florah Martha Muili** **Leah** sworn on 7th May 2026. 1. The Application is opposed by the Respondents. The 1st Respondent filed a Replying Affidavit sworn by **Richard Ngwalo** on 8th June 2026 together with written submissions, while the 2nd Respondent opposed the application through a Replying Affidavit sworn by **Philemona Nzisa** on 8th June 2026. 2. The Application arises from a dispute relating to land parcel number **MATUNGULU/SENGANI/4443.** The relief sought is the withdrawal and transfer of **Machakos Chief Magistrate’s Court Environment and Land Case No. E037 of 2026 to Kangundo Law Courts** for hearing and determination. **Applicant’s case** 1. The Applicant’s case is that the Application is premised on Section 18 of the Civil Procedure Act, under which the Court may withdraw and transfer proceedings from one subordinate court to another competent subordinate court. The Applicant contends that the Machakos Chief Magistrate’s Court is competent to hear and determine the dispute and that the transfer sought is not premised on any alleged want of jurisdiction. 2. The Applicant argues that Kangundo Law Courts would be the more appropriate forum having regard to the proximity of the suit property, the convenience of the parties and witnesses and the efficient administration of justice. 3. It is submitted that the Court ought to consider the substance of the application rather than the terminology employed. Reliance was placed on ***Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates* [2013] eKLR** for the proposition that the Court should be guided by the substance of an application rather than the manner in which the relief sought has been described. 4. The Applicant further relied on ***Kamau & Another v Wanjiru & 9 Others (Misc. Civil Application E109 of 2025) [2026] KEHC 5346 (KLR)*** and ***M.M. (Minor) v Pastor John Njenga & Another [2013] eKLR***for the proposition that convenience of the parties and witnesses, accessibility and the efficient administration of justice are relevant considerations when determining an application for transfer of proceedings. **Respondents’ Case** 1. The Respondents oppose the application on the basis that the Applicant’s reliance on the location of the suit property effectively raises an issue of territorial jurisdiction. Their position is that if the Machakos Chief Magistrate’s Court lacks jurisdiction to entertain the dispute, then the proceedings before it are incompetent and incapable of transfer under Section 18 of the Civil Procedure Act. 2. The Respondents contend that Section 18 presupposes the existence of a competent suit capable of transfer and that a court cannot transfer proceedings that are a nullity. Reliance was placed on ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd*, *Phoenix of East Africa Assurance Company Limited v S.M. Thiga t/a Newspaper Service*** and ***Kagenyi v Musiramo*.** 3. The Respondents further contend that the power of transfer under the law presupposes the existence of a competent suit and cannot be invoked to cure proceedings that are a nullity. 4. The Respondents accordingly urged the Court to dismiss the application. They further contended that if the Court were to find that the Machakos Chief Magistrate’s Court lacked jurisdiction, the proper course would not be to order a transfer under Section 18 of the Civil Procedure Act, but to hold that the proceedings were incompetent and liable to be struck out. 5. The application was canvassed by way of written submissions. The Applicant filed written submissions on 10th June 2026, while the 1st Respondent filed submissions on 9th June 2026. The 2nd Respondent did not file any submissions. **Analysis and Determination** 1. I have considered the Application, the affidavits filed by the parties, the submissions of learned counsel and the authorities relied upon. The issue for determination is whether, in the circumstances of this case, the Court should exercise its discretion under Section 18 of the Civil Procedure Act to withdraw and transfer **Machakos Chief Magistrate’s Court Environment and Land Case No. E037 of 2026** to Kangundo Law Courts. 2. The power of this Court to withdraw and transfer proceedings from one subordinate court to another is provided for under **Section 18** of the Civil Procedure Act. The section provides: ***“18. Power of High Court to withdraw and transfer case instituted in subordinate court*** ***(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; or*** ***(b) withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—*** ***(i) try or dispose of the same; or*** ***(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or*** ***(iii) retransfer the same for trial or disposal to the court from which it was withdrawn.*** ***(2) Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.”*** 1. The power conferred by Section 18 is discretionary. Like all judicial discretion, it must be exercised judiciously and upon settled principles. The Court does not order transfer merely because another forum may appear more convenient to a party. The relevant inquiry is whether, having regard to all the circumstances of the case, transfer would better serve the interests of justice, promote the efficient administration of justice and avoid unnecessary expense or hardship. 2. The circumstances that guide the exercise of this discretion were considered in ***David Kabungu v Zikarenga & 4 others*, Kampala HCCS No 36 of 1995** where Okello J stated that; ***“Section 18 (1) (b) of the***[***Civil Procedure Act***](https://kenyalaw.org/akn/ke/act/1924/3)***gives the court the general power to transfer all suits and this power may be exercised at any stage of the proceedings even suo moto by the court without application by any party. The burden lies on the applicant to make out a strong case for the transfer. A mere balance of convenience in favour of the proceedings in another court is not sufficient ground though it is a relevant consideration. As a general rule, the court should not interfere unless the expense and difficulties of the trial would be so great as to lead to injustice. What the court has to consider is whether the applicant has made out a case to justify it in closing the doors of the court in which the suit is brought to the plaintiff and leaving him to seek his remedy in another jurisdiction… it is well established principle of law that the onus is upon the party applying for a case to be transferred from one court to another for due trial to make out a strong case to the satisfaction of the court that the application ought to be granted. There are also authorities that the principal matters to be taken into consideration are, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship, and if the court is left in doubt as to whether under all the circumstances it is proper to order transfer, the application must be refused… Want of jurisdiction of the court from which the transfer is sought is no ground for ordering transfer because where the court from which transfer is sought has no jurisdiction to try the case, transfer would be refused…”*** 1. The foregoing decision identifies the principles governing the exercise of the Court's discretion under section 18 of the Civil Procedure Act. The discretion is not exercised merely because another forum appears more convenient. Rather, the applicant bears the burden of demonstrating sufficient cause to justify the withdrawal and transfer of the proceedings in the interests of justice. 2. The first question then is whether ***Machakos Chief Magistrate's Court Environment and Land Case No. E037 of 2026*** is capable of transfer under section 18 of the Civil Procedure Act. That question turns on the Respondents' contention that the Machakos Chief Magistrate's Court lacks jurisdiction because the suit property is situated within the territorial jurisdiction of Kangundo Law Courts. 3. The determination of that issue requires a distinction between jurisdiction of the court and the place where proceedings ought to be instituted. 4. Jurisdiction concerns the legal authority conferred upon a court to hear and determine a dispute. Where such authority is absent, the court cannot take any further step in the matter. The provisions relating to the place of suing, however, serve a distinct purpose. They regulate the forum in which proceedings should ordinarily be instituted and are concerned with considerations of convenience, accessibility and efficient administration of justice. 5. Sections 11 to 15 of the Civil Procedure Act provide for the place where suits ought to be instituted. These provisions regulate the appropriate forum for purposes of convenience and efficient administration of justice. 6. In ***Paulo Anyanzwa Kutekha v Steel Structures Limited [2018] KEHC 7136 (KLR)*** the Court considered the effect of the provisions relating to place of suing and held: ***“4. The procedural statute on the other hand was (and still is) the Civil Procedure Act, Cap 21 which commenced operation on 31st January 1924. This Act, in various provisions (sections 11, 12, 13, 14 and 15), provides for places of suing. These provisions are obviously administrative in nature with the intention that the place of suing be governed by certain rules for purposes of convenience, to minimize costs, etc. These provisions under the Civil Procedure Act cannot have been intended to oust, and should not be interpreted as ousting, the country-wide jurisdiction of Resident Magistrates’ Courts conferred by the substantive statute, the Magistrate’s Courts Act, Cap10. In any event, this Act came in time much later than the Civil Procedure Act, Cap 21. Under rules of interpretation and construction, the latter statute is deemed to amend the earlier statute where there is an apparent conflict.*** ***5. The remedy for not following guidelines provided in sections 11, 12, 13, 14, and 15 of the Civil Procedure Act regarding the place of suing would not be, in all justice, the striking out of the suit, because of the country-wide jurisdiction conferred by the substantive Act, Cap 10; it would lie in an appropriate order for costs, or the exercise of the High Court’s power to withdraw and transfer cases instituted in subordinate courts under section 18 of the Civil Procedure Act.”*** 1. A similar position was taken in ***Betty Nyamusi Machora v Betty Nyanduko Makori* [2018] eKLR** where Majanja J observed: ***“In my view, section 15 of the CPA provides for the convenient forum of instituting a suit. It does not divest the Magistrates Court of jurisdiction, hence a Defendant who is dissatisfied with the place where the suit has been filed is entitled to invoke section 18 of the CPA and apply to the High Court to transfer the suit to the appropriate forum. This position still obtains following repeal of the MCA. The Magistrates Court Act, 2015 provides for the jurisdiction of the Magistrates Court on the basis of subject matter and/or its value; it does not limit the territorial jurisdiction of the Magistrates Court.”*** 1. This distinction was recognised in ***Esther Mugure Karegi v Penta Tancom Limited [2016] eKLR,*** where the Court held that filing a suit at a court station other than that contemplated under the provisions relating to place of suing does not necessarily render the proceedings a nullity. The Court stated: ***“To my mind, freeing the interpretation from the constraints of technicality and eager to do substantive justice would lead to a conclusion that sections 14 and 15 are procedural sections aimed at guiding parties on the appropriate place for suing. Suing in the “wrong” court as far as geographical location is concerned does not, however, necessarily make the suit a “nullity.” Such a suit may be a suitable candidate for transfer under section 18 of the Civil Procedure Act to the appropriate Court.”*** 1. The same approach was adopted in ***AN ((Minor Suing Through Next Friend and Father ABK)) v Wanjala* [2023] KEHC 18024 (KLR),** where the Court stated: ***“The position which I find more persuasive is that stated in such cases as***[***Sustainable Management Services vs. New Mitaboni FCS***](https://kenyalaw.org/akn/ke/judgment/kehc/2017/3781)***[2017] eKLR (D. Kemei, J),***[***Paulo Anyanzwa Kutekha vs. Steel Structures Limited***](https://kenyalaw.org/akn/ke/judgment/kehc/2018/7136)***[2018] eKLR (Waweru, J) and***[***Peter Ouma Nyapara vs. Willis Ouma Okoth***](https://kenyalaw.org/akn/ke/judgment/kehc/2021/6232)***[2021] eKLR (Wendoh, J), that sections 14 and 15 of the***[***Civil Procedure Act***](https://kenyalaw.org/akn/ke/act/1924/3)***do not quite deal with jurisdiction of courts handling certain classes of civil cases, but rather they are more of guidelines to parties on where to file suits, and that these provisions deal with administrative issues, with respect to having suits filed in a manner which is sensitive to the convenience of the parties, and that filing a suit contrary to these administrative guidelines ought not render the suit incompetent, and such suits would be amenable to transfer under section 18 of the***[***Civil Procedure Act***](https://kenyalaw.org/akn/ke/act/1924/3)***. That argument is further buttressed by sections 1A, 1B and 3A of the***[***Civil Procedure Act***](https://kenyalaw.org/akn/ke/act/1924/3)***, on substantive justice and overriding objectives, and Article 159 of***[***the Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***, with respect to not giving too much attention to technicalities of procedure.”*** 1. The principle emerging from these authorities is that provisions relating to the place of suing regulate the forum in which proceedings should ordinarily be instituted. They do not, by themselves, determine the jurisdiction of a court or render proceedings incompetent where the court is otherwise vested with authority to hear and determine the dispute. A suit filed in a forum that is inconvenient or not the preferred forum may, in an appropriate case, be transferred under section 18 of the Civil Procedure Act. 2. The Respondents’ contention is that because the suit property is situated within the area served by Kangundo Law Courts, the Machakos Chief Magistrate’s Court lacks jurisdiction to entertain the proceedings. The question therefore is whether the location of the suit property affects the jurisdiction of the court or merely determines the appropriate forum for hearing the dispute. 3. The Respondents’ contention cannot, in the circumstances of this case, be sustained. In light of the foregoing authorities, the location of the suit property raises a question as to the appropriate forum for the hearing of the proceedings and does not deprive the Machakos Chief Magistrate’s Court of jurisdiction to determine the dispute. 4. The authorities relied upon by the Respondents, including ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd, Phoenix of East Africa Assurance Company Limited v S.M. Thiga t/a Newspaper Service and Kagenyi v Musiramo,*** are distinguishable. They concern circumstances where the courts lacked the legal authority to entertain the disputes before them, unlike the present case where the issue is the appropriate place for the exercise of jurisdiction. 5. It is important to emphasise that the Court’s conclusion is not that section 18 of the Civil Procedure Act may be invoked to cure proceedings instituted before a court lacking jurisdiction. Rather, the conclusion is that no jurisdictional defect has been demonstrated in the present case. The issue raised concerns the appropriate forum for the hearing of the dispute and not the competence of the court to determine it. 6. It follows that ***Machakos Chief Magistrate's Court Environment and Land Case No. E037 of 2026*** is properly before a court of competent jurisdiction and is therefore amenable to transfer under section 18 of the Civil Procedure Act. 7. Having reached that conclusion, the remaining question is whether the Applicant has established sufficient grounds for the exercise of the Court’s discretion to order the transfer sought. 8. The overriding objective under sections 1A and 1B of the Civil Procedure Act requires the Court to facilitate the just, expeditious, proportionate and affordable resolution of disputes. The same objective is reflected in section 3 of the Environment and Land Court Act. 9. The dispute herein concerns land. The Applicant has demonstrated that the suit property is situated within Matungulu and falls within the territorial jurisdiction of Kangundo Law Courts. That geographical connection is a relevant consideration in determining whether the proceedings should be transferred. 10. The location of the suit property is not, by itself, determinative of the question whether transfer should be ordered. However, in a dispute concerning land, the *situs* of the property is a relevant consideration, particularly where it bears upon access to the subject matter, convenience of parties and witnesses and the efficient conduct of proceedings. In the circumstances of this case, I am satisfied that it provides sufficient justification for the exercise of discretion under section 18 of the Civil Procedure Act. 11. Further, disputes relating to land may, depending on the circumstances, require consideration of the physical location and characteristics of the subject property. While this consideration does not determine jurisdiction, it is a legitimate factor in assessing the convenience and efficient conduct of proceedings. 12. I have also considered whether the Respondents will suffer any prejudice if the matter is transferred. No specific prejudice has been demonstrated. The transfer will not deprive the Respondents of any substantive right or occasion any procedural disadvantage in the prosecution of their case. In the circumstances, I am satisfied that the interests of justice favour the transfer sought. 13. Taking into account the nature of the dispute, the location of the suit property, the convenience of the parties and witnesses and the overriding objective of facilitating the expeditious and affordable determination of disputes, I am satisfied that the Applicant has established sufficient cause for the exercise of this Court’s discretion under section 18 of the Civil Procedure Act. 14. The Notice of Motion dated 7th May 2026 is accordingly allowed. **Orders** 1. Consequently, Court makes the following orders: 2. ***Machakos Chief Magistrate’s Court Environment and Land Case No. E037 of 2026*** is hereby withdrawn and transferred to Kangundo Law Courts for hearing and determination. 3. The Deputy Registrar shall facilitate transmission of the court file to Kangundo Law Courts. 4. The proceedings already undertaken before the Machakos Chief Magistrate’s Court shall remain part of the record, and the trial court shall proceed in accordance with Section 18(2) of the Civil Procedure Act. 5. Costs of the application shall be in the cause. It is so ordered. **Delivered and Dated at Machakos this 2nd day of July, 2026.** **HON. J. N. KUYIONI** **JUDGE** **02.07.2026** **Ruling delivered virtually through Microsoft Teams Video Conferencing Platform** In the presence of; Catherine Court Assistant. Ms. Ngunyi for the Applicant. Mr. Mokaya for the 1st Respondent. No appearance for the 2nd Respondent.