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ELCOtherNot stated in the judgment· [2025] KEELC 6214 (KLR)

Kussow & 2 others v Adam & 4 others (Environment and Land Miscellaneous Case E006 of 2024) [2025] KEELC 6214 (KLR)

Environment and Land Court
24 September 2025
JMJ. M. Mutungi
1,020 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land dispute filed in the wrong court was transferred to Mandera, confirming land cases must start in the local magistrates' court when they qualify.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Kerugoya determined a preliminary objection on territorial jurisdiction raised by the Defendants in a suit filed by Plaintiffs by Plaint dated 4th December 2024. The Plaintiffs sought a declaration that plot No. 173 Aresa and plot No. 174 Aresa belong to them, together with an injunction restraining the Defendants from interfering with the properties, and a contemporaneous Notice of Motion for injunctive orders enforceable with the assistance of the OCS Mandera Police Station. The Defendants, through Muiruri CM & Partners, filed grounds of opposition and a preliminary objection contending that the court lacked territorial jurisdiction because the suit land is situated in Mandera County and all parties reside there. The court found the plots are Market/Township plots in Aresa, Mandera County, evidenced by a 2023 letter from the Principal Land Administrator, Mandera County, and 2016 rent receipts issued by the Mandera County Government. Applying Section 12(d) of the Civil Procedure Act, the court held the suit ought to have been instituted in the lowest court with jurisdiction within the locality of the land - the Mandera Chief Magistrate's Court - whose Kshs 20,000,000 pecuniary jurisdiction comfortably covered the value of the undeveloped plots, and which under Section 26(3) and (4) of the Environment and Land Court Act, 2011 may hear such land disputes when designated by the Chief Justice. Invoking Section 18(1)(a) of the Civil Procedure Act, the court transferred the suit to the Mandera Chief Magistrate's Court, directing that court also to hear the pending injunction application. No costs order was made.

Key legal issues

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01

Territorial jurisdiction over suits relating to immovable property

Holding

The suit, concerning plots situated in Mandera County with all parties resident in Mandera, ought to have been filed in the Mandera Chief Magistrate's Court, being the lowest court with jurisdiction in the locality of the land.

Reasoning

Section 12(d) of the Civil Procedure Act requires suits for determination of rights or interests in immovable property to be filed where the property is situated. The value of the undeveloped Market/Township plots could not exceed the Kshs 20,000,000 pecuniary jurisdiction of a Chief Magistrate. Under Section 26(3) and (4) of the ELC Act, designated magistrates' courts may hear land disputes within their pecuniary jurisdiction. The ELC would have had original jurisdiction over the same matters, but the proper forum was the local subordinate court.

p. 3
02

Power to transfer a suit to a competent subordinate court

Holding

The court invoked its transfer power and ordered the suit transferred to the Mandera Chief Magistrate's Court, which would also determine the pending injunction application.

Reasoning

Section 18(1)(a) of the Civil Procedure Act empowers the court, on application of a party or on its own motion, to transfer any suit pending before it to a subordinate court competent to try it. Having found the Mandera Magistrate's Court competent and possessed of jurisdiction, transfer was the appropriate course rather than striking out the suit.

p. 3

Legal principles established

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  • Under Section 12(d) of the Civil Procedure Act, suits for determination of any right to or interest in immovable property must be instituted in the court within whose local limits the property is situated, in the lowest court with pecuniary jurisdiction.
  • Magistrates' Courts designated by the Chief Justice under Section 26(3) and (4) of the Environment and Land Court Act, 2011 have jurisdiction to hear and determine land disputes where the value of the land falls within their pecuniary jurisdiction.
  • The High Court (and by extension the ELC) may transfer any suit pending before it to a subordinate court competent to try it, under Section 18(1)(a) of the Civil Procedure Act.

Court orders

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  1. 1.The suit is transferred to the Mandera Chief Magistrate's Court for hearing and determination
  2. 2.The Mandera Chief Magistrate's Court will hear and determine the Plaintiffs' application for injunction dated 4th December 2024

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 12(a)-(f), particularly 12(d)
  • Civil Procedure Act, Cap 21Section 18(1)(a)
  • Environment and Land Court Act, 2011Section 26(3), (4) and (5)
  • Magistrates' Courts ActPecuniary jurisdiction referred to in Section 26(4)
Jurisdiction invoked
Section 12(d) of the Civil Procedure Act, Cap 21; Sections 26(3), (4) and (5) of the Environment and Land Court Act, 2011; Section 18(1)(a) of the Civil Procedure Act

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, "Kussow & 2 others v Adam & 4 others (Environment and Land Miscellaneous Case E006 of 2024) [2025] KEELC 6214 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6214/eng@2025-09-24

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