Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedCMC ELC Case No. 66 of 2018 (Transfer Application)

Mulwa v Kimuyu (Environment & Land Miscellaneous Case E006 of 2024) [2025] KEELC 3510 (KLR)

Environment and Land Court
30 April 2025
AKA. Kaniaru
2,016 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled it cannot transfer a land case filed in the wrong court; the claimant must withdraw it and file afresh in the right court.

What this practically means

#

Executive summary

#
By a notice of motion dated 30 May 2024, the defendant in Kitui Chief Magistrate's Court suit CMC ELC No. 66 of 2018 sought withdrawal of that suit to the Environment and Land Court at Kitui, adjudication of the plaint, defence and counter-claim by the ELC, and a stay of proceedings in the lower court. The dispute concerns ownership of a portion of land known as Yatta B2/Kwa Vonza/2, and the defendant's counter-claim is founded on adverse possession, over which he conceded the magistrates' court lacks jurisdiction. The respondent opposed, arguing that a suit filed in a court without jurisdiction is a nullity and nothing capable of transfer exists; the remedy is withdrawal and refiling. In a ruling delivered on 30 April 2025, A. Kaniaru J held that jurisdiction flows only from the Constitution or legislation, and that the Section 18 Civil Procedure Act transfer power applies only to suits filed in courts possessed of jurisdiction. The court distinguished the applicant's reliance on Equity Bank Ltd v Bruce Mutie Mutuku, adopting instead the Court of Appeal's position in that case and in Phoenix of E.A. Assurance v S.M. Thiga that a suit filed without jurisdiction must be withdrawn and refiled in a competent court. The main prayer for transfer was rejected, and since the remaining prayers were dependent on it, the entire application was dismissed with costs to the respondent.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the lower court has jurisdiction to handle matters involving adverse possession
  2. 2.Whether this court can exercise its supervisory power to transfer such a suit
  3. 3.Whether the transfer is necessary to ensure an equitable and just resolution of the dispute in line with substantive justice

Key legal issues

#
01

Whether a court can transfer a suit filed in a court lacking jurisdiction

Holding

No. Section 18 transfer powers apply only to suits filed in courts with jurisdiction; a suit filed in a court without jurisdiction is a nullity incapable of transfer.

Reasoning

Relying on the Court of Appeal's decision in Equity Bank Ltd v Bruce Mutie Mutuku and Phoenix of E.A. Assurance v S.M. Thiga, the court held that the applicant's reliance on Equity Bank was misguided. The applicant filed an adverse possession claim in a court he knew lacked jurisdiction; the law does not permit transfer of such an incompetent suit, and the proper remedy is withdrawal and refiling.

p. 4

Legal principles established

#
  • It is illegal to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction, as no competent suit exists capable of being transferred
  • A court can only exercise jurisdiction as conferred by the Constitution or written law
  • Jurisdiction must exist when a suit is filed; the remedy for a suit filed without jurisdiction is withdrawal and refiling
  • The onus lies on the party applying for transfer to make out a strong case justifying it

Court orders

#
  1. 1.The prayer for transfer of CMC ELC Case No. 66 of 2018 from Kitui Chief Magistrate's Court to the Environment and Land Court is rejected
  2. 2.The entire application is dismissed with costs to the respondent

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

AK
majority

Wrote the judgment

Jurisdiction invoked
Section 18 of the Civil Procedure Act; Articles 50 and 159(2)(d) of the Constitution of Kenya

Relief refused

#

Transfer of CMC ELC Case No. 66 of 2018 to the Kitui Environment and Land Court

A suit filed in a court without jurisdiction is a nullity and cannot be transferred; the only remedy is withdrawal and refiling in a competent court

p. 4

Adjudication of the plaint, defence and counter-claim by the Environment and Land Court

Dependent on the prayer for transfer, which failed

p. 4

Stay of proceedings in the Chief Magistrate's Court

Dependent on the prayer for transfer, which failed

Costs

The application is dismissed with costs to the respondent.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is now abundantly clear that the prayer for transfer cannot be allowed. I hereby reject it. Consequently, the entire application fails and I hereby dismiss it with costs to the respondent.
p. 4Final orders - dismissal of the transfer application
If a suit is filed without jurisdiction the only remedy is to withdraw it and fie a compliant one in the court seized of jurisdiction.
p. 4Remedy for want of jurisdiction
Jurisdiction is a weighty fundamental matter and to allow court to transfer an incompetent suit for want of jurisdiction to a competent suit would be to muddle up the waters and allow confusion to reign
p. 4Sanctity of jurisdiction

Issues in the judgment

#
minor

Paragraph 1 misnames the parties' roles - it refers to the defendant as 'the respondent' and the respondent as 'the applicant', contrary to the roles used throughout the judgment

minor

The ruling is dated 30th April 2025 while the introduction describes a motion dated 30.5.2024 filed on even date; the delivery date post-dates the record but the application date of 30.5.2024 appears consistent within the record

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mulwa v Kimuyu (Environment & Land Miscellaneous Case E006 of 2024) [2025] KEELC 3510 (KLR)", Case Analysis (2025). CMC ELC Case No. 66 of 2018 (Transfer Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3510/eng@2025-04-30

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