https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5261

**REPUBLIC OF KENYA** **IN THE ENVIRONMENTAL AND LAND COURT** **AT KWALE** **MISCELLANEOUS APPLICATION NO. E018 OF 2025** **IN THE MATTER OF SECTIONS 1A, 1B, ЗA AND 18 OF THE CIVIL PROCEDURE ACT, CAP 21** **- BETWEEN -** **MWANASHA NASSOR OMARI………………………. 1ST APPLICANT** **SENGA ALI FERUNZI AND 6 OTHERS** ***(Suing as Administrators of the estate*** ***of ALI FERUNZI SALIM)* ……………………………………… 2ND APPLICANT** **- VERSUS -** **FERUNZI SALIM MWATSOLOZI …………………… 1ST RESPONDENT** **MOHAMED SALIM FERUNZI ………………………. 2ND RESPONDENT** **THE LAND REGISTRAR (KWALE) ………………… 3RD RESPONDENT** **RULING** 1. **Introduction** 2. This Honourable Court was called upon to make a determination onto the Notice of Motion application dated 19th September, 2025 filed by the 1st and 2nd Applicants herein (Hereinafter referred to as "The Applicants"). The application was brought pursuant to the provisions of Sections 1A, 1B, 3A and 18 of the Civil Procedure Act, Cap. 21. It sought an order that the suit being Kwale CMCC ELC No. E041 of 2025, currently pending before the Senior Principal Magistrate’s Court at Kwale to be transferred to the Principal Magistrate’s Court at Msambweni for hearing and determination. 3. Upon service, the application was vehemently opposed by the 1st and 2nd Respondents herein through filing of Replying Affidavits dated 29th January, 2026 and………respectively. The 3rd Respondent neither participated in the application nor filed any response thereto whatsoever. 4. **The case by the 1st & 2nd Applicants** 5. The Notice of Motion application sought for the following orders:- 6. ***Spent.*** 7. ***That Kwale CMCC ELC No. E041 of 2025 pending before the Senior Principal Magistrate’s Court, Kwale, be transferred to the Principal Magistrate’s Court, Msambweni for hearing and determination; and*** 8. ***That costs be in the cause.*** 9. The application was premised upon the grounds, testimonial facts and the averments made out under the 11 Paragraphed Supporting Affidavit sworn on 19th September, 2025 by MS. MWANASHA NASOR OMAR, the 1st Applicant, with the authority of her co-Applicants as evidenced by the Authority to Act annexed thereto and marked as "MNO - 1". The Deponent averred as follows that:- 10. He was the 1st Applicant herein having been given authority to swear affidavit on behalf of other Applicants. Annexed herewith and marked as "MNO - 1" was a copy of the authority to act. 11. He was well conversant with matters in issue. 12. With other Applicants, they instituted civil suit ***“CMELC NO. E041 OF 2025***” at Kwale Law Courts. Annexed herewith and marked as "MNO - 2" was a copy of the Plaint. 13. The cause of action arose in Msambweni, Sub-County 14. The 1st and 2nd Respondents were residing in Msambweni. 15. Msambweni Law Court was seized with proper territorial jurisdiction to hear and determine the matter to its conclusion. 16. It would be more convenient and just if the matter was transferred to Msambweni Law Court. 17. His Advocate informed him, which information he believed to be true, that he inadvertently filed the matter in Kwale, instead of Msambweni. 18. No prejudice shall be suffered by the Respondent if this Honourable Court granted the orders sought. 19. The application was made in good faith. 20. What he had deponed to herein was true to the best of his knowledge, belief and sources of information disclosed. 21. **Response to the Application by the 1st Respondent** 22. In opposing the application, the 1st Respondent, Mr. Ferunzi Salim Mwatsolozi, swore a Replying Affidavit on 29th January, 2026, on his own behalf and on behalf of the 2nd Respondent. He deposed that:- * + - 1. He was the 1st Defendant/Respondent, well versed with the matters herein, hence competent to swear this affidavit on his own behalf and on behalf of the 2nd Defendant/Respondent. 2. He had read, and the contents of the Notice of Motion Application dated 19th September, 2025 together with its Supporting Affidavit of Mwanasha Nassor Omar sworn on the same date, had been explained to him by his advocate. 3. Where necessary, he had sought Counsel from his advocate on record which advise he verily belief to be true and thus wish to respond as below: - 4. The instant application was mischievous and drafted as a way of wasting this Honourable Court's precious time. Hence, the said application was opposed in its entirety and ought to be dismissed with costs to the Defendants/Respondents. 5. The crux of the matter was that the 1st Applicant herein previously approached the Lower Court at Kwale Law Courts on or about the 12th July, 2024, by way of Application and Plaint dated even date pursuant to the civil suit “***Kwale MCELC No. E037 of 2024: Mwanasha Nassor Omar - Versus - Ferunzi Salim Mwatsolozi, Mohamed Salim Ferunzi, & The District Land Registrar – Kwale,*** whereby they (the 1st and 2nd Defendants/Respondents) through the Law firm of Messrs. Lawrence Obonyo Legal Advocates filed a Preliminary Objection dated 4th September, 2024 together with a Replying Affidavit dated on 12th September, 2024. Attached herewith was a copy of the Applicant's Certificate of Urgency, Preliminary Objection dated 4th September, 2024 and Replying Affidavit which were marked as “FSM - 1(a)(b)(c) ") 6. The said Application and Suit were instituted through the Law firm of Messrs. Mutanu & Co. Advocates, Jiwaji Building, 1st Floor, Digo Road, P.O BOX 105272-80100, Mombasa, Telephone No:072729577/0715728377, E-Mail address; mutanufm@gmail.com; 7. On the said Application dated 12th July, 2024, the 1st Applicant herein sought for Orders of temporary injunction against them over their own suit property known as Kwale/Msambweni “A"/96. The grounds on which the application was premised were disclosed on the face of the sworn affidavit of Mwanasha Nassoro Omar dated 12th July, 2024. 8. They filed a Preliminary Objection dated 4th September, 2024 whereby they challenged the territorial jurisdiction of the Court. Furthermore, they filed their Replying Affidavit dated the 12th September, 2024. 9. Their Advocates on record even proceeded to file written submissions on the Applicant's Application. 10. Before the matter would be set down for Ruling by Honorable Lewa, the Applicant through her Advocates on record, (Ms. M'Mbaka Advocate holding brief) sought to withdraw the matter and informed the Court that they would file it in Msambweni Law Courts. 11. Sometimes in July, 2025, he was once again served with an Application filed under Certificate of Urgency and Plaint all dated 26th June, 2025, case number “***Kwale MCELC/E041 of 2025: Mwanasha Nassor Omar, Senga Ali Ferunzy and 6 Others – Versus - Ferunzi Salim Mwatsolozi, Mohamed Salim Ferunzi, & The District Land Registrar – Kwale”*** initiated by the Law firm of Messrs. Birir & Company Advocates having been filed at Kwale Law Courts. This Suit bore a striking resemblance to the Suit withdrawn by the Law firm of Messrs. Mutanu & Company Advocates - case number “***Kwale MCELC No. E037 of 2024: Mwanasha Nassor Omar - Versus - Ferunzi Salim Mwatsolozi, Mohamed Salim Ferunzi, & The District Land Registrar – Kwale”*** 12. The service by the Law firm of Messrs. Birir & Company Advocates came as a shock to him for the reasons that they had indulged the Applicant, who had intimated in Court that they would have their suit filed in Msambweni, and immediately after proceeded to instruct Mr. Birir Advocate to institute the suit in Kwale, with the full knowledge that they had initially been before Hon. Lewa, Kwale Law Courts. 13. They instructed the Law firm of Messrs. Wanjiku Omari & Company Advocates to come on record and oppose the Application and Suit. Instantly, their Advocates on record, filed a Notice of Appointment of Advocates dated 29th August, 2025, and filed a Preliminary Objection dated 8th September, 2025, which sought Kwale MCELC/E041/25 to be dismissed on account of being in breach to “***the doctrine of Res Judicata”*** to Kwale MCELC/E037/2024, which earlier suit having been filed by the Applicant herein was withdrawn for lack of the Kwale Court's Territorial Jurisdiction at the first instance, being that Msambweni Law Courts was vested with the requisite territorial jurisdiction. Attached herewith was a copy of the Notice of Appointment and Preliminary Objection dated 8th September, 2025 which was marked as "FSM - 2". 14. Tit was only until the Applicants were served with the Preliminary Objection dated 8th September, 2025, that their Counsel, Mr. Birir, rushed to this Honourable Court to save their dying horse. 15. The intentional actions of the Applicants herein had been malicious and they took great displeasure at the extent they were willing to go to deny them peaceable enjoyment of land that truly belong to them. 16. The actions of the Applicants herein had occasioned they financial constraints they were well off, they were small scale business people, who were just trying to earn a decent living, which may not be possible as long as the Applicants keep dragging them to Court. 17. In the civil case of Kwale MCELC/E037/2024, they had to incur substantial legal fees, similarly to the Kwale MCELC/E041/2025, and now the instant suit, they still had to pay their Advocate on record to defend this instant Miscellaneous Application ELC Misc. App. E016 of 2025. So far, they had incurred almost a sum of Kenya Shillings Two Hundred Thousand (Kshs. 200,000/=) in defending these three (3) cases. 18. Thus, the actions of the Applicants herein were not welcome as they had occasioned his brother and him great financial distress, which they we will be seeking to recover as costs should the instant Application be entertained by this Honourable Court, prior to the matter being referred to Msambweni. 19. It was noteworthy that the Applicants herein were forum shopping at their expense as the Suit Property Kwale/Msambweni “A"/96 belonged to them having inherited the land from their late father Ali Ferunzi Salim who died on 10th April, 1984. 20. He swore this Affidavit in opposition to the Plaintiff/ Applicant's Application dated 19th September, 2025 and pray that it be dismissed with costs. 21. What was deponed to hereinabove was true to the best of his knowledge, information and belief. 23. **Submissions** 24. On 25th February, 2026, this Honorable Court directed the Applicants, through their Counsel, to file a Supplementary Affidavit, leave for which they had sought, together with their written submissions, within fourteen (14) days, and the Respondents were granted corresponding leave of fourteen (14) days upon service. 25. Regrettably, and as at the time of the drafting of this Ruling, the Applicants had neither filed nor served any Supplementary Affidavit nor any written submissions in support of their own application, notwithstanding the express directions of this Court. 26. This notwithstanding, the 1st and 2nd Respondents, on their part, dutifully filed their written submissions. Nonetheless, the Court still proceeded to determine the application on the strength of the material availed on the record and on its merit. 27. **The Written Submissions by the 1st and 2nd Respondents** 28. As indicated above, the Law firm of Messrs. Wanjiku Omari & Company Advocates filed their written submissions on behalf of the 1st & 2nd Defendants herein dated 23rd April, 2026. M/s Wanjiku Advocate commenced her submissions by providing a brief background of the matter. The Learned Counsel proceeded to frame two (2) issues for determination, namely: whether the Miscellaneous Application herein was merited; and whether the 1st and 2nd Respondents were entitled to costs. 29. On the first issue, the Learned Counsel anchored her submissions on the provision of Section 12 of the Civil Procedure Act, Cap. 21 on the place of instituting suits relating to immovable property, The Counsel averred that the said provision was couched in mandatory terms, and that the Applicants were mandated to institute their suit within the local limits of the jurisdiction in which the suit property was situate or where the Defendants reside or work for gain, being Msambweni. On this point, the Counsel relied on the decision of this very Court (Hon. L. L. Naikuni, J.) in the case of:- “***Helmann – Versus - Mbogo & Another (Environment & Land Case 60 of 2014) [2025] KEELC 3458 (KLR) (25 April 2025) (Ruling)”***, which quoted with approval the case of “***David Kabungu – Versus - Zikarenga & 4 Others, Kampala HCCS No. 36 of 1995”***, to the effect that the burden lies on the applicant to make out a strong case for transfer, and that a mere balance of convenience in favour of proceedings in another Court, though a relevant consideration, was not a sufficient ground. 30. The Learned Counsel further relied on the case of: “***Hangzhou Agrochemicals Industries Limited – Versus - Panda Flowers Limited [2012] eKLR”***, on the factors to be considered on an application for transfer, including the motive and character of the proceedings, the nature of the relief sought, the interests of the litigants, the convenient administration of justice and the possibilities of undue hardship, and on the holding therein that if the Court was left in doubt as to whether, under all the circumstances, it was proper to order the transfer, the application must be refused. The Learned Counsel averred that the instant application was made in bad taste and bad faith. The Applicants never denied that, on two occasions in the same Lower Court at Kwale, the Respondents’ Counsel were compelled to file Preliminary Objections on territorial jurisdiction; that the trial Court in Kwale MCELC No. E037 of 2024 had already graciously granted the Applicants a chance to remedy their wrong by allowing a withdrawal without costs on the understanding that the suit would be filed at the Msambweni Law Courts. The Applicants did not even dispute that the parties were wrongly before the Kwale Magistrates’ Courts, the suit property falling squarely within Msambweni Sub - County. 31. The Counsel additionally cited the decision of the Court of Appeal in the case of: “***Allan Fwamba Malilo – Versus - Tai Construction Company Limited”***, where the Learned Judges of Appeal declined to treat the issue of the territorial jurisdiction of a court as a mere procedural technicality to be discarded, observing that the Civil Procedure Act contained elaborate details regarding the place of suing which should not be disregarded, lest untold hardship and injustice be occasioned to litigants by way of suits being filed indiscriminately before any court. The Learned Counsel further aligned herself with the position that jurisdiction must exist at the time of the filing of the suit, as held by the Court of Appeal in the case of:- “***E.A. Assurance Company Limited – Versus - S.M. Thiga t/a Newspaper Services (2010) KLR”***, and submitted that if the Court where the matter was first filed was divested of jurisdiction from the onset, then the Applicants could not purport to seek to transfer a dead suit. 32. In conclusion, the Counsel contended that the Applicants had approached equity with unclean hands, that no cogent reason was given why the suit was filed at Kwale and not at Msambweni, and that the application ought to be dismissed with costs to the 1st and 2nd Respondents, who have been dragged through three (3) suits at an unreasonable financial constraint. 33. In the alternative, and without prejudice, the Counsel urged that even if the Court were inclined to allow the application, the Applicants ought still to be condemned to pay the Respondents’ costs of all the three (3) suits. 34. **Analysis and Determination** 35. This Honorable Court has keenly and conscientiously considered the Notice of Motion application dated 19th September, 2025, the Supporting Affidavit and the annexures thereto, the Replying Affidavit sworn on 29th January, 2026 together with all its annexures, the written submissions by the 1st and 2nd Respondents, the cited authorities and the relevant provisions of the Constitution of Kenya, 2010 and the law. 36. In order to arrive at a just, fair, reasonable and informed decision, the Court has framed the following three (3) salient issues for its determination:- 37. ***Whether the Chief Magistrate’s Court at Kwale is seized of the territorial jurisdiction to hear and determine Kwale CMCC ELC No. E041 of 2025;*** 38. ***Whether the Notice of Motion application dated 19th September, 2025 seeking the transfer of Kwale CMCC ELC No. E041 of 2025 to the Principal Magistrate’s Court at Msambweni is merited; and*** 39. ***Who should bear the costs of the application.*** ***ISSUE No. a). Whether the Chief Magistrate’s Court at Kwale is seized of the territorial jurisdiction to hear and determine Kwale CMCC ELC No. E041 of 2025;*** 1. Prior to embarking on the analysis under this sub – heading, the Honourable Court wishes extrapolate on the brief background on the subject matter. For proper context, it holds that the main substratum at the heart of the underlying litigation between the parties is all that piece or parcel of land known as Title Number Kwale/Msambweni "A"/96 - The suit property. It is situated within Msambweni Sub - County in the County of Kwale. The Applicants, being the widow and children of the late Ali Ferunzi Salim and suing as the duly appointed Legal Administrators of his estate, contend that the suit property was their ancestral land which the 1st and 2nd Respondents fraudulently caused to be registered in their names, and were issued with a Certificate of Title Deed on 15th December, 2023. 2. On their part, the 1st and 2nd Respondents maintain that they are the legitimate beneficial owners of the suit property, having inherited it from their own late father, also known as Ali Ferunzi Salim, whom they insist was an entirely different person from the Applicants’ deceased. 3. Resultantly, in the course of time, the parties have been embroiled in protracted litigation process over the said subject matter. The litigation history between the parties, which was of central significance to the instant application, may be summarised as hereunder. The 1st Applicant first approached the Chief Magistrate’s Court at Kwale on or about 12th July, 2024 vide Kwale MCELC No. E037 of 2024, through the Law firm of Messrs. Mutanu & Company Advocates, seeking inter alia orders of temporary injunction against the 1st and 2nd Respondents over the suit property. As a rejoinder, the 1st and 2nd Respondents, through the Law firm of Messrs. Lawrence Obonyo Legal Advocates, filed a Notice of Preliminary Objection dated 4th September, 2024 challenging the territorial jurisdiction of that Court, together with a Replying Affidavit sworn on 12th September, 2024 and written submissions. Before the said Preliminary Objection could be set down for ruling, the 1st Applicant, through her Counsel, sought to withdraw the matter, and on 16th October, 2024 the suit was marked as withdrawn, with the Court being informed that the suit would be filed afresh at the Msambweni Law Courts. Notably, the 1st and 2nd Respondents willingly indulged the 1st Applicant by forgoing their costs of the withdrawn suit on that understanding. 4. However, instead of instituting the fresh suit at the Msambweni Law Courts as intimated, the Applicants, now through the Law firm of Messrs. Birir & Company Advocates, filed Kwale MCELC No. E041 of 2025 vide a Plaint and application all dated 26th June, 2025, once again at the Kwale Law Courts. In response to this, the 1st and 2nd Respondents thereafter instructed the Law firm of Messrs. Wanjiku Omari & Company Advocates, who filed a Notice of Appointment dated 29th August, 2025 together with a Notice of Preliminary Objection dated 8th September, 2025, challenging the competence of the said suit on the twin grounds of being in breach of the Doctrine of Res Judicata and want of territorial jurisdiction. 5. It is on the heels of the said Preliminary Objection that the Applicants moved this Honorable Court vide the instant Miscellaneous Application seeking the transfer of the said suit to the Msambweni Law Courts. That is adequate on the brief facts. 6. Now back to the issues under this sub-heading. Ideally, the Honourable Court shall be examining whether the Chief Magistrate’s Court at Kwale is seized of the territorial jurisdiction to hear and determine Kwale CMCC ELC No. E041 of 2025. The significance of jurisdiction to any judicial proceeding cannot be gainsaid. Jurisdiction is everything, and a Court of law can only act where it is clothed with jurisdiction. The celebrated and “*Classicus Locus”* pronouncement on this subject remains that of the Court of Appeal in the case of: “***The Owners of the Motor Vessel "Lillian S" – Versus - Caltex Oil (Kenya) Limited (1989) KLR 1”***, where Nyarangi, JA (as he then was) famously held that jurisdiction is everything, and that without it, a Court has no power to make one more step, and must down its tools the moment it holds that it is without jurisdiction. 7. The place of instituting suits relating to immovable property is governed by the provision of Section 12 of the Civil Procedure Act, Cap. 21, which provides as follows:- **"Subject to the pecuniary or other limitations prescribed by any law, suits - (a) for the recovery of immovable property, with or without rent or profits; (b) for the partition of immovable property; (c) for the foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property; (d) for the determination of any other right to or interest in immovable property; (e) for compensation for wrong to immovable property; ... shall be instituted in the court within the local limits of whose jurisdiction the property is situate: Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the Defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the court within the local limits of whose jurisdiction the property is situate, or in the court within the local limits of whose jurisdiction the Defendant actually and voluntarily resides or carries on business, or personally works for gain."** 1. From a plain and literal reading of the above provision, the provision is couched in mandatory terms through the deployment of the peremptory word "shall". A suit for the determination of a right to or interest in immovable property, or for compensation for wrong thereto, must be instituted in the court within **the local limits** (Emphasis is mine) of whose jurisdiction the property is situate. Applying the said provision to the instant circumstances, it is common ground, and indeed wholly undisputed by the Applicants, that the suit property, Title Number Kwale/Msambweni "A"/96, is situate within Msambweni Sub – County of the County of Kwale; that the 1st and 2nd Respondents reside within Msambweni Sub-County; and that the cause of action arose within Msambweni Sub-County. Indeed, these very facts constitute the first three grounds on the face of the Applicants’ own application. It follows, as night follows day, that the court within the local limits of whose jurisdiction the suit property is situate, and which is therefore seized of the requisite territorial jurisdiction, is the Principal Magistrate’s Court at Msambweni, and not the Chief Magistrate’s Court at Kwale. 2. The Applicants themselves have candidly conceded as much. At paragraph 8 of the Supporting Affidavit, the 1st Applicant deposed that her Advocate informed her that he "inadvertently" filed the matter at Kwale instead of Msambweni. The grounds on the face of the application equally concede that it is the Msambweni Law Court which is duly vested with jurisdiction to hear and determine the matter. In saying so, I seek refuge from the case of: “***Allan Fwamba Malilo – Versus - Tai Construction Company Limited (Supra)”***, cited by the Respondents, the Court of Appeal was emphatic that the issue of the territorial jurisdiction of a court cannot be treated as a procedural technicality as envisaged under the provision of Article 159 ( 2 ) ( d ) of the Constitution of Kenya, 2010 to be discarded. Neither, can the elaborate provisions of the Civil Procedure Act, Cap. 21 regarding the place of suing should not be overlooked. Otherwise untold hardship and injustice may be occasioned to litigants by way of suits being filed indiscriminately before any court. This Court respectfully associates itself fully with that binding pronouncement. 3. In the premises, the Court finds and holds, without any hesitation whatsoever, that the Chief Magistrate’s Court at Kwale was not, and is not, seized of the territorial jurisdiction to hear and determine Kwale CMCC ELC No. E041 of 2025, it having been instituted therein in flagrant contravention of the mandatory provision of Section 12 of the Civil Procedure Act, Cap. 21. In any case the Court is clothed with the jurisdiction to hear and determine the matter under the provision of Section 13 of the Environment & Land Court Act, No. 19 of 2011. ***ISSUE No. b)*** ***Whether the Notice of Motion application dated 19th September, 2025 seeking the transfer of Kwale CMCC ELC No. E041 of 2025 to the Principal Magistrate’s Court at Msambweni is merited*** 1. Under this sub heading the power of this Honourable Court to transfer suits s donated by the provision of Section 18 of the Civil Procedure Act, Cap. 21 Laws of Kenya. Section 18 donates power to this Court to transfer suits and states as follows: - **“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. This principle is reinforced by the Overriding Objective under the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the Environment & Land Court Act, No. 19 of 2011 which obliges courts to facilitate just, expeditious, and proportionate and affordable resolution of civil disputes. However, efficiency cannot override the requirement that a suit must exist in law before it can be transferred. 2. Section 1B(1) of the said Act provides as follows:- **“For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims-** **(a) the just determination of the proceedings;** **(b) the efficient disposal of the business of the Court;** **(c) the efficient use of the available judicial and administrative resources;** **(d) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and** **(e) the use of suitable technology:”** 1. The provision of Article 165 (6) of the Constitution of Kenya, 2010 further gives the High Court Supervisory jurisdiction in the following terms:- **“(6) The High Court has supervisory jurisdiction over the subordinate Courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior Court.”** 1. The provision of Article 162(2) (b) of the Constitution on the other hand empowers Parliament to **“establish Courts with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to land.”** In this regard and pursuant to Article 162 (3) or the Constitution, Parliament enacted the Environment and Land Court Act, Act No. 19 of 2011. The provision of Section 13 of the Environment and Land Court Act outlines the jurisdiction of the Environment and Land Courts as follows:- **(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.** **(2) In exercise of its jurisdiction under Article 162 (2)(b) of the Constitution, the Court shall have power to hear and determine disputes-** **a) Relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;** **b) Relating to compulsory acquisition of land;** **c) Relating to land administration and management;** **d) Relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and** **e) Any other dispute relating to environment and land.** 1. Under the provision of Sections 17 and 18 of the Civil Procedure Act, Cap. 21 upon an application by a party, or on its own motion, the High Court may transfer the suit to another sub - ordinate Court with territorial jurisdiction, when justice of the case demands such action. It is also instructive that if no objection as to place of suing is raised in the subordinate Court in the first instance, it cannot be raised on appeal unless there has been a consequent failure of justice – Section 16. 2. In the case of: ***“Hangzhou Agrochemicals Industries Limited – Versus - Panda flowers Limited [2012] eKLR”*** the Court held: - ***“……In my view, which view I gather from authorities and from the law, the Court should consider such factors as the motive and the character of the proceedings, the nature of the relief or remedy sought, the interests of the litigants and the more convenient administration of justice, the expense which the parties in the case are likely to incur in transporting and marinating witnesses, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship. 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. Being a discretionary power, the decision whether or not to exercise it depends largely on the facts and circumstances of a particular case.”*** 1. The power to transfer a suit is discretional vested onto the Court. The burden of providing sufficient reasons of the transfer rests with the Applicant. In the case of ***“David Kabungu – Versus - Zikarenga & 4 others Kampala HCCS No. 36 of 1995”***, the Court had the following to say on the circumstances under which the order to transfer suits may be granted:- ***“Section 18 (1) of the Civil Procedure Act, Cap. 21 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 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 or the suit has been filed in a particular court for the purposes of working injustice. What the court has to consider is whether the Applicant has made a case to justify it in closing doors of the court on which the suit is brought to the Plaintiff and leaving him to seek his remedy in another jurisdiction …….. It is a 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 expenses, interest of justice and possibilities to undue hardship and if the court is left in doubt as to whether under all the circumstances it is proper to order transfer, the duplication 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 could be refused……”*** 1. The fate of an application to transfer a suit instituted in a court bereft of jurisdiction was authoritatively settled as far back as the case of “***Kagenyi – Versus - Musiramo & Another (1968) EA 43”***, where Sir Udo Udoma, CJ held that an order for the transfer of a suit from one court to another cannot be made unless the suit has, in the first instance, been brought in a court which has jurisdiction to try it. That time-honoured principle was affirmed by the Court of Appeal in the case of “***E.A. Assurance Company Limited – Versus - S.M. Thiga t/a Newspaper Services (Supra)”***, where it was held that jurisdiction must exist as at the time of the filing of the suit, and that a suit filed in a court devoid of jurisdiction is a nullity ab initio and stillborn; and further in the case of: “***Equity Bank Limited – Versus - Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR”***, where the Learned Judges of Appeal emphatically held that it is not possible in law to transfer a suit which is a nullity, for the transfer would not cure the congenital defect; a nullity begets nothing, and remains a nullity wherever it is taken. 2. Applying the above settled principles to the instant application, the inescapable conclusion is that the Applicants have invited this Honorable Court to undertake a legal impossibility. Having found under the first issue that Kwale CMCC ELC No. E041 of 2025 was instituted before the Chief Magistrate’s Court at Kwale in contravention of the mandatory provision of Section 12 of the Civil Procedure Act, and that the said Court was divested of territorial jurisdiction from the very onset, the said suit is, with respect, a stillbirth. There is, in the eyes of the law, no competent suit capable of being transferred to the Principal Magistrate’s Court at Msambweni. This Court cannot, under the guise of the provision of Section 18 of the Civil Procedure Act, Cap. 21 breathe life into that which was dead on arrival. To borrow the language of the Court of Appeal, a transfer cannot cure a nullity. 3. Even if the Court were wrong in the above finding, and the matter fell to be determined purely as an exercise of discretion, the Court would still, in the peculiar circumstances of this case, have declined to exercise its discretion in favour of the Applicants, for the following reasons. First, the conduct of the Applicants leaves a great deal to be desired. The record demonstrates, without contradiction, that the Applicants first filed Kwale MCELC No. E037 of 2024 at the Kwale Law Courts; that upon the Respondents raising a Preliminary Objection on territorial jurisdiction, the Applicants withdrew the suit on 16th October, 2024 upon their own representation to the trial Court that they would file afresh at the Msambweni Law Courts, on the strength of which representation the Respondents magnanimously forewent their costs; and that the Applicants thereafter turned around and filed Kwale MCELC No. E041 of 2025 before the self-same Kwale Law Courts. No explanation whatsoever, beyond a terse and wholly unconvincing claim of inadvertence by Counsel, has been proffered for this volte-face. Equity aids the vigilant, and he who comes to equity must come with clean hands. The Applicants’ hands, on the material before this Court, are anything but clean. 4. Secondly, guided by the considerations enumerated in the case of “***Hangzhou Agrochemicals Industries Ltd (Supra)”***, including the motive and the character of the proceedings, the interests of the litigants and the possibilities of undue hardship, the Court takes into account the uncontroverted deposition by the 1st Respondent that the Respondents, who are small-scale business people of modest means, have been dragged through three (3) sets of proceedings, namely Kwale MCELC No. E037 of 2024, Kwale MCELC No. E041 of 2025 and the instant Miscellaneous Application, at a cumulative expense of almost Kenya Shillings Two Hundred Thousand (Kshs. 200,000.00) in legal fees, all on account of the Applicants’ repeated and unexplained disregard of the elementary rules on the place of suing. The Court in Hangzhou (supra) held that if the Court is left in doubt as to whether, under all the circumstances, it is proper to order the transfer, the application must be refused. This Court entertains no doubt at all; the circumstances militate decisively against the grant of the orders sought. 5. Thirdly, and finally, the Applicants’ own indolence in the prosecution of this very application speaks volumes. Despite the directions issued by this Court on 25th February, 2026, the Applicants filed neither the Reply for which they themselves had sought leave, nor any written submissions in support of their own application. A party who moves the Court and thereafter abandons its own application to its fate cannot be heard to complain if the Court finds, as this Court hereby finds, that no strong case, or any case at all, has been made out for the exercise of its discretion. For the avoidance of doubt, however, nothing in this Ruling determines the merits of the parties’ competing claims of ownership over the suit property, nor does it bar the Applicants from instituting, if so advised, a fresh and properly constituted suit before the court seized of the requisite territorial jurisdiction, being the Msambweni Law Courts, subject of course to any applicable law, including the law of limitation of actions. Equally, the Preliminary Objection dated 8th September, 2025 pending before the trial Court in Kwale CMCC ELC No. E041 of 2025 remains for disposal before that Court in accordance with the law. 6. The upshot of the foregoing analysis is that the Notice of Motion application dated 19th September, 2025 is devoid of merit and is for dismissal. ***ISSUE No. c). Who should bear the costs of the application*** 1. It is now well established that the issue of Costs is at the discretion of the Court. Costs means the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. 2. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 Laws of Kenya holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. 3. See the cases of:- ***“Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR*** and ***“Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR***, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. 4. This very Court have well stated in previous precedence and most especially in the case of:- ***“Sagalla Lodge Limited – Versus - Samwuel Mazera Mwamunga & another (Suing as the Executors of Eliud Timothy Mwamunga – Deceased) [2022] eKLR”***, (LL. Naikuni J) that: ***“58. The Black Law Dictionary defines “Cost” to means, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”.*** ***The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. The issue of Costs is the discretion of Courts. From this provision of the law, it means the whole circumstances and the results of the case where a party has won the case. The events in this case is that the Notice of Motion application dated 7th December, 2021 by the Plaintiff has succeeded and hence they are entitled to costs of the application and that of the Defendants dated 21st December, 2021.”*** 1. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. In the case of ***“Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR***, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 2. The 1st and 2nd Respondents have successfully resisted the application. Beyond that, the Court has found that the Respondents have been subjected to a needless multiplicity of proceedings and considerable financial strain occasioned entirely by the manner in which the Applicants have elected to conduct this litigation. The Respondents, having been dragged before this Court to oppose an application that ought never to have been brought, deserve to be compensated for the trouble taken in defending the same. Accordingly, the Court awards the costs of the instant application to the 1st and 2nd Respondents, to be borne by the Applicants jointly and severally. 3. **Conclusion and Disposition** 4. Ultimately, having conducted such an elaborate, in-depth and analytical review of the framed issues herein, the Honorable Court finds that the Notice of Motion application dated 19th September, 2025 by the 1st and 2nd Applicants lacks merit in its entirety. Consequently, for the avoidance of any doubt, the Court proceeds to make the following orders:- 5. **THAT the** **Notice of Motion application dated 19th September, 2025 by the 1st and 2nd Applicants be and is hereby dismissed.** 6. **THAT for the avoidance of doubt, the dismissal of the said application shall not be construed as a determination of the merits of the parties’ competing claims over the parcel of land known as Title Number Kwale/Msambweni "A"/96, nor as a bar to the institution by the Applicants, if so advised, of a fresh and properly constituted suit before the court seized of the requisite territorial jurisdiction, subject to the applicable law;** 7. **THAT the Preliminary Objection dated 8th September, 2025 pending in Kwale CMCC ELC No. E041 of 2025 shall be disposed of by the trial Court in accordance with the law.** 8. **THAT the costs of the application are awarded to the 1st and 2nd Respondents, to be borne by the Applicants jointly and severally; and** 9. **THAT the file be and is hereby ordered closed.** **IT IS SO ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT KWALE THIS ………23RD ….……DAY OF ……JULY..……..2026.** **……………………………….** **HON. MR. JUSTICE L. L. NAIKUNI** **ENVIRONMENT AND LAND COURT** **AT** **KWALE** **Ruling delivered in the presence of:** * + - * 1. Mr. Daniel Disii, the Court Assistant. 2. Mr. Birir, Advocate for the 1st and 2nd Applicants. 3. Mr. Nyariki Advocate holding brief for Ms. Wanjiku Omari, the Learned Counsel for the 1st and 2nd Respondents. 4. No appearance for the 3rd Respondent.