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ELCDismissedVihiga MCELC No. E005 of 2023 (application dated 14th March 2025)· [2025] KEELC 4357 (KLR)

Amachire v Alolo & another (Environment & Land Miscellaneous Case E003 of 2025) [2025] KEELC 4357 (KLR)

Environment and Land Court of Kenya
9 June 2025
EAE. Asati
801 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled it cannot transfer a land case wrongly filed in a magistrate's court — the case must be filed afresh in the right court.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Vihiga (E. Asati, J) determined a Notice of Motion dated 14th March 2025 brought under Section 18(1)(b)(ii) of the Civil Procedure Act, Rule 3A, and Order 51 Rule 1 of the Civil Procedure Rules. The applicant sought transfer of Vihiga MCELC No. E005 of 2023 from the magistrates' court to the Environment and Land Court, with a further prayer that the suit be set down for hearing on priority basis, on the ground that the lower court has no jurisdiction over adverse possession claims following a Court of Appeal decision (Civil Appeal No. E141 of 2022). The court dismissed the application. Relying on Equity Bank Limited v Bruce Mutie Mututku and Abraham Mwangi Wamugoni v Simion Mbiriri Wanjiku, and the line of authority including Kagenyi v Musiramo and the 'Lillian S' case, the court held that a suit filed in a court without jurisdiction is an incompetent suit and a nullity which cannot be transferred under Section 18; parties cannot by consent confer jurisdiction, and courts can only transfer a cause whose existence is recognised by law. Each party was ordered to bear its own costs since the respondents had neither been served nor responded to the application. The ruling was delivered virtually at Vihiga on 9th June 2025.

Key legal issues

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Whether the High Court/ELC can transfer under Section 18 CPA a suit filed in a court lacking jurisdiction

Holding

The transfer application must fail because the lower court had no jurisdiction over adverse possession claims; an incompetent suit cannot be transferred and sanctified

Reasoning

Relying on the Court of Appeal in Equity Bank Ltd v Bruce Mutie Mututku, the court held that transferring a suit filed in a court lacking jurisdiction would sanctify an incompetent suit. Following Abraham Mwangi Wamugoni and Kagenyi v Musiramo, a suit filed in a court without jurisdiction is a nullity; courts can only transfer a cause whose existence is recognised by law. Where a court lacks jurisdiction it must down its tools (Owners of Motor Vessel 'Lillian S').

p. 2

Legal principles established

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

Court orders

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  1. 1.The application dated 14th March 2025 is dismissed
  2. 2.Each party to bear own costs of the application
Jurisdiction invoked
Section 18(1)(b)(ii) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules

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, "Amachire v Alolo & another (Environment & Land Miscellaneous Case E003 of 2025) [2025] KEELC 4357 (KLR)", Case Analysis (2025). Vihiga MCELC No. E005 of 2023 (application dated 14th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4357/eng@2025-06-09

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