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ELCOtherNot stated in judgment· [2025] KEELC 5305 (KLR)

Kithu & 8 others v Kithu & 2 others (Land Case E050 of 2024) [2025] KEELC 5305 (KLR)

Environment and Land Court
16 July 2025
1,333 words in judgment
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The bottom line

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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

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Executive summary

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The defendants filed a preliminary objection dated 10th July 2024 against the plaintiffs' suit on two grounds: lack of territorial jurisdiction and sub judice. They submitted that the suit property is situated at Mariakani in Kilifi County, so the suit should have been filed at ELC Malindi under sections 12(a) and 15 of the Civil Procedure Act and section 4(3) of the Environment and Land Court Act, relying on the 'Lillian S' and Phoenix of E.A. Assurance decisions. Counsel later abandoned the sub judice ground after the probate ruling was delivered on 17th December 2024. The plaintiffs opposed, arguing the objection was not a pure point of law under Mukisa Biscuits because the defendants' residence was disputed, and relied on authorities showing that a suit filed in the wrong territorial court should be transferred rather than dismissed, including Tipper v Rosborg on technology and access to justice. The court found that the residence of the defendants required evidence, so the objection was not a pure point of law; however, it was undisputed that the suit property lies in Kilifi County, and under section 12(a) the suit ought to have been filed at ELC Malindi. Because ELC Mombasa and ELC Malindi are courts of concurrent jurisdiction, the defect was curable. On 16th July 2025 the court rejected the preliminary objection ground, transferred the suit to ELC Malindi, and ordered costs of the objection to abide the outcome of the suit.

Key legal issues

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01

Whether the preliminary objection raises a pure point of law under Mukisa Biscuits

Holding

It does not, since determining whether the defendants reside in Kilifi or Mombasa County would require evidence

Reasoning

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.

p. 3
02

Territorial jurisdiction under sections 12(a) and 15 of the Civil Procedure Act

Holding

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

Reasoning

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.

p. 3
03

Whether the suit is sub judice

Holding

The ground was abandoned after the probate ruling was delivered on 17 December 2024

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The ground on the preliminary objection is not a pure point of law and it is rejected
  2. 2.The suit is transferred to ELC Malindi for hearing and determination
  3. 3.The costs in the preliminary objection to abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21 Laws of Kenyasections 12(a), 15, 6, 27
  • Environment and Land Court Act, 2011section 4(3)

Cases cited (7)

  • The Owners of the Motor Vessel "Lillian S" versus Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Phoenix of E. A. Assurance Company Limited versus S. M. Thiga t/a Newspaper Service
    [2019] Civil Appeal No. 244 of 2010
  • Boniface Waweru Mbiyu versus Mary Njeri & Another
    Nairobi HC Misc. Appl. No. 639 of 2005
  • Mukhisa Biscuits Manufacturing Company Limited versus West End Distributors Limited
    [1969] E. A. 696
  • Mary Musuki Mudachi & Another versus Antony Muteke Mudachi & 2 Others; Elijah K. Kimanzi & 6 Others (interested parties)
    [2021] eKLR
  • Felistas Wanjeri Waweru versus Prime Auto Solutions Limited
    (Miscellaneous Civil Application E053 of 2023) [2024] KEHC 1971 (KLR) (29 February 2024) (Ruling)
  • Tipper versus Rosborg
    (Civil Case E002 of 2022) [2022] KEHC 16811 (KLR) (20 December 2022) (Ruling)
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

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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, "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.