https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3703

Kiage v Ongoncho (Environment and Land Miscellaneous Case E006 of 2026) [2026] KEELC 3703 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 3703 (KLR) Republic of Kenya In the Environment and Land Court at Nyamira Environment and Land Miscellaneous Case E006 of 2026 DO Ohungo, J June 17, 2026 Between Patrick Moirongo Kiage Applicant and Grace Nyanchama Ongoncho Respondent Ruling 1.By Notice of Motion dated 4th March 2026, the Applicant is seeking the following orders:1.That this Honourable Court be pleased to order the transfer of Nyamira Magistrate’s Court ELC Case No. 14 of 2020 to the Environment and Land Court at Nyamira for hearing and determination.2.That this Honourable Court be pleased to direct that the entire lower court file be called for and placed before this Court.3.That the pleadings already filed in the Magistrate’s Court be adopted as properly filed in this court.4.That costs be in the cause. 2.The application is supported an affidavit sworn by the Applicant on 4th March 2026. He deposed that he filed Nyamira MCELC No. 14 of 2020 and that the Subordinate Court delivered a ruling which stated that it lacked jurisdiction to hear and determine the matter advising the parties to move to this Court for appropriate orders and directions. 3.The Respondent opposed the application through Notice of Preliminary Objection dated 16th March 2026 on the following grounds:1.That the Application is incompetent, misconceived and bad in law as the suit sought to be transferred Namely Nyamira Magistrate’s Cort ELC Case No. 14 of 2020 was filed before a court that lacked jurisdiction ab initio.2.That it is a settled principle of law that a suit instituted before a court without jurisdiction is a nullity and incapable of being transferred to another court.3.That this Honourable Court lacks jurisdiction to transfer a suit that was a nullity from inception.4.That the Applicant’s recourse, if any, lies in filing a fresh suit before a court of competent jurisdiction and not through transfer proceedings.5.That the present Miscellaneous Application is therefore an abuse of the court process and ought to be struck out with costs. 4.Directions were given that the application and the objection be canvassed together through written submissions. The Applicant filed submissions dated 27th April 2026. The Respondent did not file any submissions. 5.The Applicant relied on the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 and submitted that the objection failed the test which required that a preliminary objection must be on a pure point of law. He contended that the objection required the Court to interrogate factual issues such as the history of the dispute and circumstances under which jurisdiction was assumed. Consequently he submitted that the objection was incompetent. 6.The Applicant went on to submit that this Court has jurisdiction under Article 162 (2) (b) of the Constitution and Section 13 of the Environment and Land Court Act and that the suit was not struck out. Relying on the cases of Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others [2014] eKLR and Kagenyi v Musiramo & Another (1968) EA 43, the Applicant submitted that Courts must prioritize substantive justice over procedural technicalities and that Court have inherent power to ensure disputes are heard and determined in the most appropriate forum in the interest of justice. 7.The Applicant concluded by urging the Court to dismiss the preliminary objection, order that the suit proceeds to hearing on the merits and award him costs. 8.I have carefully considered the application and the submissions. The issues that arise for determination are whether the Court has jurisdiction to order transfer of the suit and if so, whether transfer should be allowed. 9.It is trite that jurisdiction is everything and the very entry point in any matter that a Court is called upon to determine. It is the very life and soul of any proceedings without which the proceedings come to a certain end. See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR. 10.In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others (supra), the Supreme Court held that a Court must operate within its constitutional limits and that it cannot expand its jurisdiction through judicial craft or innovation. 11.Similarly, the Court of Appeal underscored the futility of proceeding without jurisdiction in National Social Security Fund Board of Trustees vs. Kenya Tea Growers Association & 14 Others [2023] KECA 80 (KLR) where it held:Jurisdiction, a mantra in adjudication connotes the authority or power of a court to determine a dispute submitted to it by contending parties in any proceeding. A Court of law is invested with jurisdiction to hear a matter when:(a)it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another;(b)the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and,(c)the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. The three ingredients must co-exist in order to infuse jurisdiction in a Court. Where a Court is drained of the jurisdiction to entertain a matter, the proceedings flowing from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be marooned in the intractable web of nullity. 12.The upshot of the foregoing decisions is that jurisdiction is either there or absent. Where it is absent, the Court cannot confer it on itself, notwithstanding any good intention or zeal to render justice. It turns out that true justice must be rendered in a just manner, to wit, with jurisdiction. 13.The Applicant has stated in the grounds of the application that the Subordinate Court held that it lacked jurisdiction. I have also perused the annexed copy of the order and I see that indeed, the Subordinate Court held that it lacked jurisdiction. I do not know the nature of the case before the Subordinate Court and the reasons for the said Court holding that it lacked jurisdiction. This is not an appeal against the said holding by the Subordinate Court. Consequently, it is not open to this Court to question the holding. 14.There are many cases in which the Court of Appeal has held that a case filed in a Court without jurisdiction is a nullity and cannot therefore be transferred. In Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR, the Court held as follows:If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a compliant one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. 15.The Supreme Court underscored the foregoing in Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions) v Munyao & 148 others (Suing on their own behalf and on behalf of the plaintiffs and other members/beneficiaries of the Kenya Ports Authority Pensions Scheme)) [2019] KESC 83 (KLR) where it held as follows:However, as it was well elucidated in the case of Kagenyi v Musiramo & Another (1968) EALR 43, an order for transfer of a suit from one court to another cannot be made unless the suit has been brought, in the first instance, to a court which has jurisdiction to try it. It is therefore irrelevant as parties cannot consent to confer jurisdiction to a Court/tribunal where it is not provided by law. 16.In Bayusuf v Mbesa Investments Limited & 2 others (Civil Appeal 64 of 2020) [2022] KECA 774 (KLR) (10 June 2022) (Judgment), the Court of Appeal considered whether it could transfer a matter to the Court with jurisdiction. Ultimately, the Court held that it could not. The Court held thus:In conclusion therefore, we are persuaded that the preliminary objection on jurisdiction … was merited and the learned Judge erred in dismissing it. … Whereas we were minded to order the matter to be transferred to the ELC in lieu of the order to strike out the petition, we are unable to do so in view of the Supreme Court affirmation in the case of Albert Chaurembo Mumba & 7 others vs. Maurice Munyao & 148 others (above) of the principle in Kagenyi vs. Musiramo & another [1968] EALR 43 that an order for transfer from one court to another cannot be made unless the suit has been brought, in the first instance, to a court which has jurisdiction. Consequently, the petition before the High Court is hereby struck out. 17.The upshot of the foregoing is that Nyamira Magistrate’s Court ELC Case No. 14 of 2020 cannot be transferred to this Court. To allow its transfer in view of the foregoing decisions of the Supreme Court and the Court of Appeal which are binding on this Court would be misleading to the Applicant. He might as well consider filing a fresh case in a Court with jurisdiction. 18.This Court does not have jurisdiction to order transfer of Nyamira Magistrate’s Court ELC Case No. 14 of 2020 to itself. Consequently, Notice of Motion dated 4th March 2026 is dismissed. Since the Respondent did not file any submissions, there shall be no order as to costs. DATED, SIGNED, AND DELIVERED AT NYAMIRA, THIS 17TH DAY OF JUNE 2026.D. O. OHUNGOJUDGEDelivered in the presence of:No appearance by the ApplicantNo appearance by the RespondentCourt Assistant: B Kerubo