Kaunda v Wambua (Environment & Land Case 196 of 2014) [2025] KEELC 802 (KLR)
The bottom line
#A Kenyan court without jurisdiction to hear your case can transfer it to the right court instead of dismissing it.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC lacks jurisdiction over matrimonial property disputes
Yes - it is common ground that the ELC has no jurisdiction to entertain matrimonial disputes under Article 162(2)(b)
The applicant's counsel conceded that the court lacks jurisdiction over matrimonial property matters, which under Article 162(2)(b) fall outside the ELC's mandated subject-matter jurisdiction. The respondent similarly submitted that the court was divested of jurisdiction. The court accepted this as not in dispute and framed the real question as whether it could transfer the suit to the High Court rather than strike it out.
Whether a court without jurisdiction to determine a suit may nonetheless transfer it
The court held it has inherent residual jurisdiction under Section 3A of the Civil Procedure Act to transfer the suit to the High Court, relying on Mugendi v Kenyatta University and Rapid Kate Services
Although the respondent argued that a court without jurisdiction must 'down its tools' and can only strike out the suit, the court distinguished between jurisdiction to try the suit and inherent power to correct an injustice by transfer. Relying on Mugendi (equal-status courts should transfer matters between themselves in the spirit of harmonisation) and Emukule J in Rapid Kate Services, it found Section 3A inherent power supported the transfer.
The applicable test for a preliminary objection
The court applied the classic Mukisa Biscuit test: a preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct
The court cited the leading authority of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd to frame the preliminary objection as a pure point of law which may dispose of the suit without ascertainment of facts or exercise of judicial discretion. The jurisdictional objection fit within the recognised examples of a proper preliminary objection.
Legal principles established
#- The High Court and courts of equal status possess inherent residual jurisdiction under Section 3A of the Civil Procedure Act to transfer a matter filed before them to an appropriate court even absent an express statutory transfer provision
Court orders
#- 1.The preliminary objection dated 23rd April 2024 is dismissed with no order as to costs
- 2.The matter is transferred to the High Court Machakos for hearing and determination
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010 (objection that the ELC lacks jurisdiction over matrimonial property); inherent jurisdiction under Section 3A of the Civil Procedure Act invoked to transfer
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muriithi & 4 others v Karamai (Environment and Land Miscellaneous Case E025 of 2025) [2026] KEELC 2583 (KLR)[2026] KEELC 2583 (KLR)23 Apr 2026
Cite this brief
#Cite this brief
Caselaw, "Kaunda v Wambua (Environment & Land Case 196 of 2014) [2025] KEELC 802 (KLR)", Case Analysis (2025). Originating Summons filed on 2nd December, 2014 (Machakos ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/802/eng@2025-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.