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ELCDismissedELC Case No. E001 of 2021 (transfer application dated 7th June 2024)· [2025] KEELC 1100 (KLR)

Kunah v Ever Green Tea Factory Ltd (Environment and Land Miscellaneous Application E017 of 2024) [2025] KEELC 1100 (KLR)

Environment and Land Court of Kenya
6 March 2025
3,421 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court cannot rescue a case filed in the wrong court by transferring it — such a suit is a nullity and dies.

What this practically means

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Executive summary

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The Applicant, Raphael Kipyegon Ng'etich Kunah, moved the Environment and Land Court at Kericho by Notice of Motion dated 7th June 2024 under Article 162(2)(b) of the Constitution and Sections 1A, 1B and 18 of the Civil Procedure Act, seeking the transfer of Sotik Magistrate's Court ELC No. E001 of 2021 against Evergreen Tea Factory Ltd to the ELC. He argued that although his plaint originally pleaded loss of Kshs. 18,000,000, a subsequent valuation by Keriasek & Co. Ltd put damages at Kshs. 21,387,500, exceeding the pecuniary jurisdiction of the Magistrate's Court, so the suit should be transferred to a court of unlimited original jurisdiction. The Respondent opposed, contending that the highest-ranking judicial officer at Sotik is a Senior Principal Magistrate with a pecuniary limit of Kshs. 15,000,000, that the suit was therefore filed in a court without jurisdiction from the outset, and that a nullity cannot be transferred under Section 18. Relying on Oceanic Towers Ltd v Husseini Builders Ltd and Equity Bank Ltd v Bruce Mutie Mutuku, the court held that the claim as pleaded (Kshs. 18,000,000) exceeded the Senior Principal Magistrate's jurisdiction, that the Applicant filed suit in a court without jurisdiction, and that such a suit is a nullity which cannot be sanctified by transfer. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the ELC can transfer under Section 18 of the Civil Procedure Act a suit filed in a magistrate's court lacking pecuniary jurisdiction

Holding

Transfer was refused because the suit was filed in a court without jurisdiction and is therefore a nullity incapable of being transferred

Reasoning

The court found that the plaint particularised loss of Kshs. 18,000,000, exceeding the Kshs. 15,000,000 pecuniary jurisdiction of a Senior Principal Magistrate, the highest-ranking judicial officer at Sotik. Relying on Oceanic Towers and Equity Bank v Bruce Mutie Mutuku, the court held that a suit filed without jurisdiction is a nullity and cannot be sanctified by transfer under Section 18.

p. 7

Legal principles established

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  • A suit filed in a court without jurisdiction is a nullity and cannot be transferred under Section 18 of the Civil Procedure Act to a competent court

Court orders

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  1. 1.The Notice of Motion application dated 7th June 2024 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Civil Procedure ActSections 1A, 1B & 18
  • Magistrates' Court ActSections 7 & 9
  • Environment and Land Court ActSection 26

Cases cited (12)

  • Rapid Kate Services Limited v Freight Forwarders Kenya Limited & 2 Others
    [2005] 1KLR 292
  • Said Abdikaarim Abdi v Shukri Jattani Sokore & Daudi Soran Sora
    [2021] eKLR
  • Rebecca Chumo v Christina Cheptoo Chumo
    [2021] eKLR
  • Wamathu Gichoya v Mary Wainoi Magu
    [2015] eKLR
  • Sukari Sugar Industries Ltd v Ochola Peter Ariyo
    [2021] eKLR
  • Mumba & 7 others v Munyao & 148 others
    (Petition 3 of 2016) [2019] KESC 83 (KLR)
  • Family Bank Limited v Shemsa Nassro Hamdu
    [2021] eKLR
  • Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel
    [2016] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Oceanic Towers Limited v Husseini Builders Limited
    [2021] eKLR
  • David Kabungu v Zikarenga & 4 others
    Kampala HCCS No. 36 of 1995
  • Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & Another
    [2012] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya and Sections 1A, 1B & 18 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kunah v Ever Green Tea Factory Ltd (Environment and Land Miscellaneous Application E017 of 2024) [2025] KEELC 1100 (KLR)", Case Analysis (2025). ELC Case No. E001 of 2021 (transfer application dated 7th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1100/eng@2025-03-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.