Kithu & 8 others v Kithu & 2 others (Land Case E050 of 2024) [2025] KEELC 5305 (KLR)
The bottom line
#Filing a land case in the wrong county court isn't fatal — Kenya's ELC transferred it instead of dismissing it, saving the plaintiff's suit.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection raises a pure point of law under Mukisa Biscuits
It does not, since determining whether the defendants reside in Kilifi or Mombasa County would require evidence
The defendants denied the description of their own residence in the plaint, meaning the place of residence is a matter of fact requiring evidence. A preliminary objection must rest solely on a point of law; because the jurisdictional challenge depends on a disputed fact, that ground fails as a pure point of law, though the objection otherwise succeeded on the location of the suit property.
Territorial jurisdiction under sections 12(a) and 15 of the Civil Procedure Act
The suit ought to have been filed at ELC Malindi, being the nearest court with jurisdiction in Kilifi County where the suit property is situated
It was undisputed that the suit property lies at Mariakani, Kilifi County. Section 12(a) requires suits relating to land to be filed in the court within whose jurisdiction the property is situated. However, since ELC Mombasa and ELC Malindi are courts of concurrent jurisdiction, the defect is curable by transfer rather than dismissal, consistent with access-to-justice considerations and technology-enabled hearings.
Whether the suit is sub judice
The ground was abandoned after the probate ruling was delivered on 17 December 2024
The defendants' counsel conceded there was no longer a suit pending that could trigger section 6 of the Civil Procedure Act, following delivery of the ruling in the probate and administration matter, and therefore abandoned the sub judice ground. The court made no finding on it.
Legal principles established
#- A suit filed in a court without jurisdiction is dead on arrival and cannot be remedied; but a suit filed in a court of concurrent jurisdiction sitting in the wrong locality may be transferred rather than dismissed
Court orders
#- 1.The ground on the preliminary objection is not a pure point of law and it is rejected
- 2.The suit is transferred to ELC Malindi for hearing and determination
- 3.The costs in the preliminary objection to abide the outcome of the suit
- Jurisdiction invoked
- Environment and Land Court Act, 2011 and Civil Procedure Act (sections 12(a), 15, 6 and 27); Articles/Constitution not expressly invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kithu & 8 others v Kithu & 2 others (Land Case E050 of 2024) [2025] KEELC 5305 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5305/eng@2025-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.