Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedKitale MELC No. 122 of 2022 (O.S) (Miscellaneous Application for transfer)· [2025] KEELC 4465 (KLR)

Isili v Ndiwa & another (Environment & Land Miscellaneous Case E003 of 2025) [2025] KEELC 4465 (KLR)

Environment and Land Court
11 June 2025
CNC.K. Nzili
1,171 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that a lawsuit filed in the wrong court is legally void and cannot simply be moved to the right court; it must be withdrawn and filed afresh.

What this practically means

#

Executive summary

#
By a miscellaneous application, the applicant sought the withdrawal of Kitale MELC No. 122 of 2022 (O.S), an adverse possession suit pending before the Chief Magistrates Court at Kitale, so that it could be transferred to the Environment and Land Court. Counsel advised at filing that the subordinate court had jurisdiction, but the applicant relied on the Court of Appeal's decision in Sugawara v Kiruti (11/10/2024), which held that subordinate courts lack jurisdiction over adverse possession claims. The 2nd respondent opposed through a preliminary objection and grounds of opposition, contending that a null suit cannot be transferred and that Section 18 of the Civil Procedure Act does not permit transfer of a suit instituted in the wrong court. The court, per Hon. C.K. Nzili, J, traced the settled jurisprudence: jurisdiction is conferred by the Constitution or statute and cannot be conferred by consent; a suit filed before a court without jurisdiction is a nullity, 'dead on arrival', and cannot be remedied by transfer under Section 18; the only remedy is to withdraw it and file afresh before a competent court. The court noted the Supreme Court had not overturned Sugawara, and that adverse possession claims are governed exclusively by the Limitation of Actions Act, Section 28(h) of the Land Registration Act and Order 37 of the Civil Procedure Rules. The application was dismissed with costs, with liberty to withdraw and file afresh.

Key legal issues

#
01

Whether an incompetent suit filed before a court lacking jurisdiction can be transferred under Section 18 of the Civil Procedure Act

Holding

No. Such a suit is a nullity, incapable of being transferred; the remedy is to withdraw it and file afresh before a competent court.

Reasoning

Jurisdiction is conferred by the Constitution or statute and cannot be conferred by consent or filing. Adverse possession claims are exclusively governed by the Limitation of Actions Act, Section 28(h) of the Land Registration Act and Order 37 of the Civil Procedure Rules, and per Sugawara v Kiruti subordinate courts lack jurisdiction over them. Since the suit was a nullity when filed, there is nothing capable of being moulded into something through transfer; the applicant must withdraw and file afresh.

p. 3

Legal principles established

#
  • A suit filed before a court without jurisdiction is a nullity and cannot be transferred under Section 18 of the Civil Procedure Act to a competent court
  • The burden rests on the applicant for transfer to make a strong case

Court orders

#
  1. 1.The application for transfer of Kitale MELC No. 122 of 2022 (O.S) is dismissed
  2. 2.Costs to the 2nd respondent

Authorities

#

Legislation

  • Civil Procedure ActSection 18
  • Civil Procedure ActSection 12
  • Constitution of KenyaArticle 162(2)
  • Constitution of KenyaArticle 159
  • Magistrates Court Act 2015Sections 6, 7, 8 and 10
  • Environment and Land Court ActSection 9
  • Land Registration ActSection 28(h)
  • Limitation of Actions Actnot specified
  • Civil Procedure RulesOrder 37

Cases cited (11)

  • Sugawara -vs- Kiruti & 3 Others
    Civil Appeal E0141 of 2022 [2024] KECA 1417 (KLR)
  • Abraham Mwangi Wamigwi -vs- Simon Mbiriri Wanjiku & Another
    [2012] KEHC 5479 (KLR)
  • Kagenyi -vs- Musiramo and Another
    [1968] EA 43
  • S.K. Macharia & Another -vs- KCB & Others
    [2012] eKLR
  • Equity Bank Ltd -vs- Bruce Muite Mutuku T/A Diani Tours & Travel
    [2016] eKLR
  • Honey Creepers Investment Limited -vs- Cab Investments Company Ltd & 4 others
    [2020] eKLR
  • Daniel N. Mugendi -vs- Kenyatta University & 3 others
    [2013] eKLR
  • Phoenix of E.A. Assurance Company Limited -vs- S. M. Thiga t/a Newspaper Service
    [2019] KECA 767 (KLR)
  • Albert Chaurembo Mumba -vs- Dama Thoya Kiti & 2 others
    [2022] eKLR
  • Macjoy -vs- United Africa Co. Ltd
    (1969) 3 All E.R. 1169
  • Sugawara -vs- Kivuti (Application E038 of 2024)
    KESC [2025] KLR (21/3/2025) (Ruling)
Jurisdiction invoked
Section 18 of the Civil Procedure Act (transfer of suits); Article 162(2) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Isili v Ndiwa & another (Environment & Land Miscellaneous Case E003 of 2025) [2025] KEELC 4465 (KLR)", Case Analysis (2025). Kitale MELC No. 122 of 2022 (O.S) (Miscellaneous Application for transfer). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4465/eng@2025-06-11

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