Cecilia Wamaitha Mwangi v Elizabthe Wambui Kamichar & 2 others [2021] KEELC 1773 (KLR)

The Court noted the Sub County Valuer's Report dated 19th February 2020 valued the suit property at Kshs. 35,000,000/=, matching the Liaison Valuers Limited report of 6th August 2018, and no contrary valuation was presented by the Respondents. Since the suit was handled by a Chief Magistrate with pecuniary jurisdiction of Kshs. 20,000,000/=, the trial court lacked jurisdiction. Jurisdiction can be raised even for the first time on appeal, so the Respondents' afterthought argument failed.

The Court observed that the Respondents contended the jurisdictional issue was never raised below as a preliminary issue, but the Court perused the Appellant's Replying Affidavit of 1st February 2019 in which she stated the land's value exceeded Kshs. 20,000,000/= and the dispute ought to be handled by the Environment and Land Court. Relying on Kenya Ports Authority v Modern Holdings and Adero v Ulinzi Sacco, the Court held jurisdiction is fundamental and can be raised even on appeal.

The Court noted the trial magistrate had expressly held that the Plaintiffs had not established a prima facie case with a probability of success, but went on to consider irreparable loss and allowed the application. Citing Family Bank Limited v Tassels Enterprises Limited and Nguruman Limited v Jane Bonde Nielsen, the Court held the conditions are separate, distinct and logical hurdles to be surmounted sequentially; failure on the first limb disposes of the application.

Relying on Selle v Associated Motor Boat Co., the Court stated its duty under Section 78 of the Civil Procedure Act to reconsider and evaluate the evidence itself, while also recognising the limit on interfering with the trial court's discretion per Mbogo v Shah.