https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3836

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT HOMABAY **ELC EP MISC E002 OF 2025** OGALO OGINGO ………………………………….1ST APPLICANT/PLAINTIFF KENNEDY OLOO ………………………....………2ND APPLICANT/PLAINTIFF ALEX ODUOGO ABONDO …………………..…..3RD APPLICANT/PLAINTIFF PUNDO OGINGO …………………...…………….4TH APPLICANT/PLAINTIFF TABU OUMA …………………………...………….5TH APPLICANT/PLAINTIFF **RULING.** 1. ​The Applicants herein filed an application by way of notice of motion dated 28th October, 2025 seeking to transfer the Number E038 of 2025 before Ndhiwa Law Courts to this Court for hearing and final determination and disposal. 2. ​They rely on five (5) grounds listed on the face of the application and supported by the supporting affidavit sworn by Alex Oduogo Abondo sworn on 28th October, 2025. 3. He has annexed a plaint, defence and a ruling made on 30/9/2025 by the lower Court on the issue of jurisdiction. 4. On 3rd February 2026 the Respondent swore a replying affidavit opposing the application. 5. The applicants subsequently filed submissions through their advocate who states, thus, that the lower Court sitting at Ndhiwa made a ruling that it lacked jurisdiction to entertain a defence of adverse possession as was raised in the defence of the applicants, and it directed that an appropriate application be made to transfer the suit so as to avoid duplicity, that the applicants had in their defence had raised a counterclaim that this Court has jurisdiction to entertain the claim and it serves the interest of justice for the application to be allowed. Counsel has referred the Court to the decisions of **Cherron (K) Ltd v Harrison Charahutu (2016) eKLR,** **Peter Kigoro Munyi v Peer Mburu Kimani and Chemirmir Kipngeno Arap Bii (2018) eKLR.** 6. I have also looked at submissions filed by Counsel for the Respondent herein. He states that the applicants filed a defence without any counterclaim and at Paragraph 8 they threatened to raise a counterclaim on account of fraud that the Laws is clear on how any defence which raises issues without jurisdiction of a particular Court cannot be a justification for transfer of any suit to a Court of competent jurisdiction as there is nothing to transfer in the first case, if the filing was done in a Court without jurisdiction. 7. Counsel for the Respondent relies on the decision of my brother Justice of Hon Dr. (iur) Fred Nyagaka made in the case of Catholic Diocese of Homabay v Aganya ELC Misc. Application No. E003 of 2025 KEELC 5048 (KLR). 8. In determining the application before him, Justice Nyagaka considered whether this Court can transfer a suit from the Magistrates Court which lacks jurisdiction to determine a claim before it. He referred to the case of **Phoenix of E.A Assurance Company Limited v S.M. Thiga t/a Newspaper Service 2019 (eKLR)** where the Court of Appeal stated as follows: *​"We are not persuaded that the proposition by the Respondent is correct law. Jurisdiction is primordial to every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a complaint one in the Court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself. The Subordinate Court could not therefore entertain the suit and allow only that part of the Claim that was within its pecuniary jurisdiction."* 1. ​In the case of **Kithita vs Ngeana Mwaniki Kisuna (2018) eKLR** it was held that: *​"Section 18 (1) (b) of the Civil Procedure Act gives the High Court the general power to transfer power suits lineally. The 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 transfer. Mere balance of convenience in favour of the proceedings in another Court is not a sufficient ground though it is a relevant consideration. As a general rule a 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 door of the Court in which the suit is brought to the Plaintiff and leaving him to seek his remedy in another jurisdiction."* 1. ​ I have looked at the Defence filed in the lower court. 2. The Applicant says the Defence raises a Counterclaim, which is not the position. 3. The relevant part of the Defence is Paragraph 8 which states: *​"The defendant will at the first instance raise a Counterclaim and raise issues of fraud and manipulation of land recordes and forgery"* 1. ​In the authorities I have referred to and particularly the case of **Kithita versus Ngeana Mwaniki Kisumi** the burden is on the applicant to make out a strong case for transfer. 2. ​So far, it is apparent no Counterclaim has been filed in Court. 3. The Applicant has a duty of furnishing this court with proper and sufficient information on which would assist the Court in arriving at a well-informed decision. 4. The Applicants failing to file a Counterclaim is to his disadvantage. 5. I find that where there is no material on which this Court act in respect of the said application. 6. In the result, I find that the application dated 28th October 2025 is unmerited. 7. I Proceed to dismiss it with costs to the Respondent. 8. It is so ordered. 9. The file is hereby closed. Ruling delivered virtually on this 17th day of June 2026 at HomaBay ELC Court. In the Presence of; 1. Mr. Ongoso Learned Counsel for the Applicant – Present. 2. Mr. Kisera Learned Counsel for the Respondent. 3. Respondent(s) Present in Advocates Office. 4. Court Assistant, Ms. Awino. JUSTICE JOHN WALTER WANYONYI -JUDGE