https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3601

Theuri v Njogu & 2 others (Environment and Land Miscellaneous Application E242 of 2025) [2026] KEELC 3601 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEELC 3601 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Miscellaneous Application E242 of 2025 TW Murigi, J June 3, 2026 Between Samuel Kimondo Theuri Applicant and Florence Wairimu Njogu 1st Respondent Embakasi Ranching Company Limited 2nd Respondent The Chief Land Registrar, Nairobi 3rd Respondent Ruling 1.Before me for determination is the Notice of Motion dated 8th August 2025, brought under Sections 1A, 1B, 3, 3A, 4, and 18(1)(b)(i) of the Civil Procedure Act, and Sections 4(2) and 13 of the Environment and Land Court Act, in which the Applicant seeks the following orders:i.Spent.ii.That this Honourable Court be pleased to transfer the suit being Milimani MCELC NO. E190 of 2021 - Samuel Kimondo Theuri - Vs - Florence Wairima Njogu, Embakasi Ranching Company Limited and the Chief Land Registrar, Nairobi from the Subordinate Court to Milimani Environment and Land Court for hearing and disposal.iii.That this Honourable Court be pleased to grant any other Orders it deems fit to grant.iv.That the costs of this Application be in the cause. 2.The application is based on the grounds appearing on its face together with the supporting affidavit of Samuel Kimondo Theuri, sworn on even date. The Applicant’s Case 3.The Applicant averred that he is the owner of Plot No. C1198, Parcel No. Nairobi Block L05/4520, having been allocated the property by the 2nd Respondent and issued with Share Certificate No. 10432 in 1986. 4.He averred that the 2nd Respondent allocated the property to the 1st Respondent without his knowledge or consent, and advised the 3rd Respondent to process the title in her favour. 5.The deponent explained that, fearing the loss of his property, he filed a suit at the subordinate Court, Milimini MCELC No. E190 of 2024, along with an application dated 10th June, 2027, under a Certificate of Urgency. 6.He asserted that the 1st Respondent filed a Preliminary Objection challenging the pecuniary jurisdiction of the Subordinate Court to determine the dispute over the suit property. He stated that an inspection of the property was carried out by the Ministry of Lands on 23rd January 2025, which valued the property at Kshs. 38,700,000/=. 7.He stated that in a ruling delivered on 24th July 2025, the Subordinate Court found it lacked pecuniary jurisdiction to hear the suit and ordered him to take the necessary steps to transfer the matter to a higher court. He contended that filing the suit in the subordinate court was an inadvertent mistake by his advocate and should not be attributed to him. 8.He maintained that this Court has both territorial and pecuniary jurisdiction to hear and determine the dispute by virtue of Section 13 of the Environment and Land Court Act and Article 162(2)(b) of the Constitution of Kenya, 2010. He argued that this Court has the power to order the transfer of a suit from the Subordinate Court to itself for disposal, by dint of Section 4(2) of the Environment and Land Court Act, read together with Section 18(1)(b)(i) of the Civil Procedure Act. 9.He maintained that the rules of natural justice require that a party should not be excluded from Court proceedings. 10.The deponent argued that unless the suit before the Subordinate Court is transferred to this Court, he would suffer irreparable loss as he would lose his property. He asserted that the application was made in good faith and without delay, and that no party would be prejudiced if the suit is transferred to this Court for hearing and determination. The 1St Respondent’s Case 11.The 1st Respondent filed a replying affidavit in opposition to the application. She argued that the application lacks merit, is fatally defective, incompetent, and should be dismissed with costs. 12.She argued that the Court's power to transfer a suit is discretionary, and that a party seeking the transfer bears the burden of providing sufficient reasons to justify it. 13.She argued that a matter can only be transferred if the Court from which the transfer is sought had jurisdiction from the onset. She further contended that the suit in the subordinate court is incompetent, having been filed in a Court lacking jurisdiction. 14.The deponent asserts that the Applicant did not annex a valuation report at the time of commencing the suit in the subordinate court to demonstrate that the Court had the necessary pecuniary jurisdiction to hear the matter. She argued that the application is an afterthought, as it was evident that the Applicant had never visited the property to determine its location or verify whether it was fully developed before filing the suit. 15.She argued that filing a matter before a Court lacking jurisdiction is a serious professional error that cannot be excused as an ordinary mistake by Counsel. She contended that the error was not genuine, given that the Applicant and his Counsel did not seek to address the jurisdictional defect until four years after the suit was filed, following the 1st Respondent's successful preliminary objection. 16.She averred that she conducted a valuation of the property in 2020, and it was valued at Kshs. 37 million. She contended that this demonstrated that the Court lacked pecuniary jurisdiction when the suit was filed in the subordinate Court four years earlier and that no circumstances had changed since then. 17.She averred that it is a well-established principle of law that jurisdiction is primordial in every suit, must exist at the time of filing, and that a suit filed without jurisdiction is dead on arrival and cannot be remedied by transfer. She further contended that a suit filed in a Court lacking jurisdiction is a nullity and cannot be transferred to a superior court, whether by the consent of the parties or otherwise. 18.In conclusion, she urged the Court to dismiss the application with costs. The Response 19.In a further affidavit dated 26th January 2026, the Applicant averred that Milimani MCELC No. E190 of 2021 was filed in 2021 without a professional valuation of the property. He explained that the suit was filed in good faith, based on information available at the time, and without any intention to mislead the court or to circumvent its jurisdiction. He contended that, due to the rapid increase in property values, the suit was mistakenly filed in the subordinate court regarding the property's estimated value. 20.He further averred that the suit proceeded for three years before the 1st Respondent challenged the Court’s pecuniary jurisdiction through a Notice of Preliminary Objection dated 14th February 2024. He argued that it was not until 23rd January 2025 that the Ministry of Lands carried out a valuation of the property, which was valued at Kshs. 38,700,000/=. 21.He argued that the 1st Respondent was aware from the onset of the suit that the subordinate court lacked pecuniary jurisdiction, having conducted a valuation of the property in 2020, yet chose to remain silent for three years before raising a Preliminary Objection. He asserted that the 1st Respondent offered no explanation for her failure to challenge the Court’s jurisdiction from the onset. 22.He contended that striking out the suit and filing a new one would cause grave injustice, including loss of time already spent in litigation, duplication of pleadings and proceedings, increased costs, and a waste of judicial resources. 23.He relied on Article 159(2) of the Constitution of Kenya, 2010, which directs Courts to administer justice without undue regard to procedural technicalities. 24.He argued that the 1st Respondent would not be prejudiced by the transfer, as the parties, pleadings, and issues would remain the same, and the Respondents would still have the opportunity to be heard on the merits. 25.The application was canvassed by way of written submissions The Applicants Submissions 26.The Applicant filed his submissions dated 26th January 2026. 27.On behalf of the Applicant, Counsel submitted that the only issue for determination is whether this Honourable Court should exercise its discretion to transfer the suit from the Subordinate Court to the Environment and Land Court, Milimani, for hearing on the merits. 28.Counsel submitted that Section 4(2) of the Environment and Land Court Act, read together with Section 18(1)(b)(i) of the Civil Procedure Act, empowers this Court at any stage to withdraw any suit pending before a subordinate court and subsequently hear or dispose of it. 29.Counsel argued that the Courts have consistently held that the discretion to withdraw or transfer suits under Section 18 of the Civil Procedure Act is exercised in the interests of justice, for efficient disposal, and to prevent the multiplicity of proceedings. Counsel cited Bruce Mutie t/a Diani Travels v Equity Bank Limited [2015] KEHC 3506 (KLR), where it was held that when exercising the discretion to transfer, the Court considers convenience in the administration of justice, the interests of the parties, and the nature of the proceedings, and that transfer aligns with the overriding objective of the Civil Procedure Act. 30.Counsel submitted that filing the suit in the subordinate court was a procedural defect, which should not result in injustice to the Applicant. Counsel submitted that the Applicant genuinely believed, without conducting a professional valuation of the property at the time of filing, that the Subordinate Court had jurisdiction. To support this point, Counsel relied on Article 159(2) of the Constitution of Kenya, 2010, which directs Courts to administer justice without undue regard to procedural technicalities, as well as Sections 1A and 1B of the Civil Procedure Act, which emphasize the overriding objective of efficient, expeditious, and just resolution of disputes. 31.Counsel submitted that the 1st Respondent was aware of the pecuniary jurisdictional limitation of the subordinate court since 2020, having conducted a valuation of the property before the commencement of the suit, but waited three years before raising a Preliminary Objection and offered no explanation for this delay. Counsel argued that a party cannot sit on its rights and then benefit from the resulting delay to obstruct proceedings. 32.Counsel submitted that requiring the Applicant to file a new suit would occasion grave prejudice and injustice, including the loss of five years of litigation, duplication of pleadings and proceedings, increased costs, multiplicity of litigation, and a waste of judicial resources. Counsel argued that the 1st Respondent would not be prejudiced by the transfer as the parties, pleadings, and issues would remain unchanged and the Respondents would still have the opportunity to be heard on the merits. 33.In conclusion, Counsel urged the Court to allow the application as prayed. The 1St Respondent’s Submissions 34.The 1st Respondent filed her submissions dated 2nd March 2026. 35.On behalf of the 1st Respondent, Counsel submitted that although Section 18 of the Civil Procedure Act grants this Court the power to transfer suits, such authority cannot be exercised for a suit filed in a Court lacking jurisdiction from the onset. Counsel argued that while the power to transfer is discretionary, the Applicant bears the burden of providing sufficient reasons to justify the transfer. 36.Counsel argued that the mistake of filing the suit in the subordinate Court is fundamental and cannot be justified as an ordinary error by Counsel. Counsel contended that the suit is incompetent and cannot be transferred to any other Court. To support this point, Counsel cited Boniface Waweru Mbiyu v Mary Njeri & another [2005] KEHC 2392 (KLR), where Justice Ojwang held that a matter filed before a Court lacking jurisdiction is a nullity and cannot be transferred to any other court. Counsel also referred to Kiarie v Kiramba [2020] KEELC 1180 (KLR), where it was held that a suit filed in a Court without jurisdiction is a nullity and that courts may only transfer a cause recognised by law. 37.In response to the Applicant's allegation that the 1st Respondent was aware of the Subordinate Court's pecuniary jurisdictional limitation since 2020 but failed to challenge it in a timely manner, Counsel submitted that the 1st Respondent only became aware of the suit after she was served with the pleadings in 2024, and had appointed her current advocates, who accordingly filed a Preliminary Objection. 38.Counsel submitted that a party cannot, through conduct or delay, confer jurisdiction in a court where none exists. Counsel further submitted that a Preliminary Objection on jurisdiction can be raised at any stage of proceedings before the final determination. Counsel maintained that the primary responsibility to ensure the suit was filed in a court of competent jurisdiction lay entirely with the Applicant's counsel, who was obliged to exercise diligence, including conducting a valuation of the suit property and a physical inspection, neither of which had been done. 39.Counsel argued that the jurisdictional defect cannot be cured by the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010, as a court cannot assume powers it does not legally have. Counsel relied on Rebecca Chumo v Christina Cheptoo Chumo [2021] KEELC 626 (KLR), where the Court held that a suit filed before a court lacking jurisdiction is a nullity in law and cannot be transferred under Section 18 of the Civil Procedure Act. 40.Further reliance was placed on Phoenix of EA Company Limited v Thiga t/a Newspaper Service [2019] KECA 767 (KLR), where the Court of Appeal held that jurisdiction is primordial in every suit, and must exist at the time of filing. It was further held that a suit filed without jurisdiction is dead on arrival and cannot be remedied, with the only option being withdrawal and the filing of a new suit in a Court with competent jurisdiction. 41.Counsel contended that the Respondent is entitled to costs as the Applicant did not exercise due diligence in determining the value of the suit property before filing, thereby forcing the 1st Respondent to defend a frivolous application. To support this argument, Counsel relied on Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & others [2014] eKLR. 42.In conclusion, Counsel urged the Court to dismiss the application with costs to the 1st Respondent. Analysis And Determination 43.Having considered the application, the respective affidavits and the rival submissions, the only issue for determination is whether Milimani MCELC No. E190 of 2021 should be withdrawn from the subordinate court and transferred to this Court for hearing and determination. 44.The power to transfer suits is governed by Section 18 of the Civil Procedure Act, which provides as follows:(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. 45.The Applicant argues that this Court has jurisdiction to transfer the suit from the lower court to this Court for hearing and determination. The 1st Respondent contends that the suit is a nullity, as it was filed in a Court lacking jurisdiction, and therefore cannot be transferred. In Boniface Waweru Mbiyu v Mary Njeri & Another (2005) eKLR, the Court held that:“Whenever a matter is filed before a court lacking jurisdiction, the professional error there committed is a fundamental one, which cannot be excused as an ordinary mistake by counsel and which should not be held to prejudice the client. As between the Advocate and his or her client, such a professional error could very well lead to claims in tort. As for the court, the matter thus filed is so defective as to be a nullity. It is incompetent and void in law; and therefore, it is not a motion or suit that can be transferred to any other court. It is the duty of the court or tribunal before which such matter is first brought to declare its status as a nullity; and it follows that such matter has no capacity to be transferred to any other court.” 46.In Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] KECA 250 (KLR), the court of Appeal stated as follows:“In numerous decided cases, courts, including this Court have held that it would be illegal for the High Court in exercise of its powers under Section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign. It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks, parties cannot even seek refuge under the 'O2' principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the situation.… In the same way, a court of law should not through what can be termed as judicial craftsmanship sanctify an otherwise incompetent suit through a transfer." 47.In Mumba & 7 others v Munyao & 148 others (Petition 3 of 2016) [2019] KESC 83 (KLR), the Supreme Court stated as follows:“...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 or tribunal where it is not provided by law." 48.The Applicant contends that the suit was erroneously filed in the lower Court, which constituted a procedural defect that can be cured. He invoked Article 159(2)(d) of the Constitution of Kenya, 2010, which directs Courts to administer justice without undue regard to procedural technicalities. The 1st Respondent argued that no competent suit was pending before the Court that could be transferred. 49.It is not in dispute that the subordinate court lacks jurisdiction to hear and determine the suit. Accordingly, this Court cannot invoke Article 159 of the Constitution to confer jurisdiction where none previously existed. The defect is not a procedural irregularity that can be cured under Article 159 but a substantive jurisdictional defect that renders the suit a nullity. 50.The Applicant argued that the delay by the 1st Respondent in raising the Preliminary Objection demonstrated an element of acquiescence, which should be considered when this Court exercises its discretion. This Court acknowledges that the 1st Respondent stated in her replying affidavit that she had commissioned a valuation of the property in 2020, which established a value of Kenya Shillings Thirty Seven Million (Kshs. 37,000,000), exceeding the subordinate court's pecuniary jurisdiction. 51.The argument that the passage of time or the opposing party's delay in promptly raising a jurisdictional objection cannot remedy the defect. Although the equitable considerations presented by the Applicant may seem compelling, they cannot override this well-established legal principle. 52.When a Court determines that it lacks jurisdiction, the only remedy available to the Applicant is to withdraw the suit and file a new suit in a Court of competent jurisdiction. Although this process may be inconvenient and costly, it is the remedy prescribed by the law. The requirement for the Applicant to restart the process is neither arbitrary nor disproportionate but is the natural and legally mandated consequence of a suit being commenced without jurisdiction. 53.In light of the foregoing, I find that Milimani MCELC No. E190 of 2021 was filed in a Court lacking pecuniary jurisdiction and is therefore a nullity ab initio. This Court has no authority to withdraw or transfer proceedings that have no legal standing. The application dated 8th August 2025 is without merit and is hereby dismissed. 54.Each party to bear its own costs. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 3RD DAY OF JUNE, 2026.…………………………………….HON. T. MURIGIJUDGEIn The Presence Of:Ms Maina holding brief for Mr Chebyiego for the 1st RespondentAhmed – Court assistant