Schulte v Aglae (Environment and Land Miscellaneous Application E154 of 2025) [2026] KEELC 3544 (KLR) (11 June 2026) (Ruling)

Schulte v Aglae (Environment and Land Miscellaneous Application E154 of 2025) [2026] KEELC 3544 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3544 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Miscellaneous Application E154 of 2025 MN Kullow, J June 11, 2026 Between Winnie Wangari Schulte Applicant and Shemina Jaspal Aglae Respondent Ruling 1.What is before the Court for determination is the Applicant’s Notice of Motion application dated 25th May 2025 seeking the following ordersi.That this court be pleased to withdraw from the Chief Magistrate’s Court at Nairobi, Milimani Chief Magistrate’s Court, Civil Suit No. 6724 of 2017 Shemina Jaspal Aglae vs Gregor Schulte Kellinghaus aka Schulte Kellinghaus Gregor Wilhelm & Anor as consolidated with Milimani Chief Magistrates Court, Civil Suit No. 3568 of 2017: Winnie Wangari Schulte Kellingahaus vs Gregor Schulte Kellinghaus & 2 Others and try it itself.ii.Costs of the suit. 2.The application is premised on the grounds that the value of the suit property as per the valuation report is Ksh 21 million (21,000,0000/=) which exceeds the pecuniary jurisdiction of the chief magistrate’s court and hence this application seeking to transfer the suit. 3.The Respondent opposed the application by filing Grounds of Opposition and a Replying Affidavit sworn by one Kennedy Ondieki Orangi both dated 27th January 2026.He deponed that this court lacked the jurisdiction to entertain the application being that the lower court also lacked jurisdiction to transfer the file. He further deposed that the suit time barred. 4.The court on the 26th January,2026 ordered that the matter be canvassed by way of written submissions with the applicant filing submissions dated 10th April 2026 whereas the Respondent filed submissions dated 13th May 2026. 5.The applicant submitted that the issue of lack of jurisdiction had been raised in the trial court which court downed its tools in a ruling delivered on the 16th May 2025 and asked for the applicant to take the necessary steps to transfer the file to the high court being this court as it had no powers to do the same. Counsel submitted the lower court lacking jurisdiction, then the matter could not be heard.The applicant also submitted that as per section Section 18 of the Civil Procedure Act the high court has been given the powers to withdraw and transfer case instituted in subordinate courts on application of either part as in the case herein. 6.The Respondent on rebuttal submissions reiterated that this court could not transfer the suit since the trial court lacked jurisdiction in the first place relying on the case of Sammy Kipserem Chepsiror Vs John Machira Okombo [2022] eKLR. 7.Counsel further submitted that the application was an abuse of the court process being that the issue of jurisdiction was being brought way later after the matter had been heard and pending judgement. That the Applicant should not be allowed to use procedural mechanisms to defeat substantive justice. Analysis and determination 8.This court has carefully considered the motion, the supporting affidavit the legal framework and jurisprudence and the single issue arising for determination is whether the Notice of Motion is merited. 9.The first thing the court will look at the relevant provisions of law that set the pecuniary limits of then courts, more so that of the lower court. In this regard, Section 4 of the Civil Procedure Act (CPA) and Section 7(1) of the Magistrates’ Courts Act (MCA) are the relevant statutes. Section 4 of the CPA provides:“ Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any court jurisdiction over suits the amount or value of the subject- matter of which exceeds pecuniary limits, if any, of its ordinary jurisdiction.” 10.Whereas Section 7(1) of the MCA states: -“(1)A magistrate's court shall have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed—a.Twenty million shillings, where the court is presided over by a chief magistrate;b.Fifteen million shillings, where the court is presided over by a senior principal magistrate;c.Ten million shillings, where the court is presided over by a principal magistrate;d.Seven million shillings, where the court is presided over by a senior resident magistrate; ore.Five million shillings, where the court is presided over by a resident magistrate.” 11.It is now settled law as established in the decision of Owners of the Motor Vessel “Lilian S” Vs Caltex Oil (Kenya) Ltd (1989) that once a court finds it does not have jurisdiction to hear and determine a dispute, then it has no choice but to down its tools. This position was underscored in the Supreme Court of Kenya decision of Samuel Kamau Macharia Vs Kenya Commercial Bank (2012) eKLR when it stated as follows: -“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law...that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceeding. 12.In this motion, it is not in disputed that the lower court does not have jurisdiction to entertain the suit. From jurisprudence, it is trite law that where a suit is filed in a court that does not have jurisdiction, that suit is a nullity and there can never be anything to transfer. This position was stated in the Court of Appeal decision of Equity Bank Limited Vs Bruce Mutie Mutuku t/a Diani Tours & Travel [2016] eKLR, which pronounced itself on this principle in the following manner:“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.” 13.The Court of Appeal further rendered itself on this same principle in Phoenix of E.A. Assurance Company Limited Vs S. M. Thiga t/a Newspaper Service [2019] eKLR] by citing the following principle outlined in the decision of Joseph Muthee Kamau & another Vs David Mwangi Gichure & another (2013) eKLR, thus ““When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that; the most famous being Kagenyi Vs Musirambo (1968) EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claimed exceeds the court’s pecuniary jurisdiction. We hold that jurisdiction cannot be conferred at the time of delivery of judgment. Jurisdiction does not operate retroactively Jurisdiction must exist at the time of filing suit or latest at the commencement of hearing.” 14.Being guided by the established precedents, I find that the Chief Magistrate’s court at Nairobi does not have jurisdiction to hear and determine Milimani Chief Magistrate’s Court, Civil Suit No. 6724 of 2017 Shemina Jaspal Aglae vs Gregor Schulte Kellinghaus aka Schulte Kellinghaus Gregor Wilhelm & Anor as consolidated with Milimani Chief Magistrates Court, Civil Suit No. 3568 of 2017: Winnie Wangari Schulte Kellingahaus Vs Gregor Schulte Kellinghaus & 2 Others and as a result, the lower court suit is a nullity ab initio. 15.Having found the lower court proceedings a nullity for want of jurisdiction, this court finds that the lower court suit is incapable of a transfer. Final disposition 16.For the reasons and findings stated above, this court finds the notice of motion dated 25th May 2025 is merited and, allowed as prayed.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 11TH DAY OF JUNE 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Mr. Munyori for the ApplicantMs. Oaga for the RespondentPhilomena W Court Assistant