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ELCOtherPetition dated 24th May, 2024· [2025] KEELC 6787 (KLR)

M Oriental Bank Limited v Kenya National Highways Authority & another (Environment and Land Petition E007 of 2024) [2025] KEELC 6787 (KLR)

Environment and Land Court
9 October 2025
CYC. K. Yano
4,406 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Filing a land case in the wrong Kenyan court registry wastes money and time, but the case survives - it just gets transferred to the right county.

What this practically means

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Executive summary

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The Petitioner filed a Petition dated 24th May, 2024 in the Environment and Land Court at Eldoret concerning Title No. Noonkopir Township/454, alleging constitutional violations that prevented it from realising a charge registered over the property in 2014. The 1st Respondent filed a Preliminary Objection dated 5th December, 2024 contending that the Eldoret ELC lacked territorial jurisdiction because the suit property is situate in Kajiado, and seeking striking out of the Petition; the 2nd Respondent did not oppose the objection. The Petitioner did not file submissions. Relying on Mukisa Biscuits, the court framed three issues: proper venue, whether lack of territorial jurisdiction is fatal, and costs. It accepted that under Section 12 of the Civil Procedure Act the suit ought to have been filed at the Kajiado ELC, since the Certificate of Lease, Survey Report and Valuation Report place the property in Kitengela, Kajiado County. However, distinguishing authorities holding that a court without jurisdiction cannot transfer a suit, the court held that the Eldoret ELC enjoys the same subject-matter jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act, which is not territorially limited; territorial venue rules serve party convenience and access to justice. Invoking its inherent jurisdiction under Sections 3 and 3A of the Civil Procedure Act and Order 47 Rule 6, the court dismissed the preliminary objection with no order as to costs - reasoning that the Petitioner's own filing choice provoked the objection - and ordered transfer of the matter to the ELC at Kajiado for hearing and determination.

Key legal issues

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01

Whether the suit ought to have been filed at the Kajiado ELC

Holding

Yes; the suit property L.R. No. Noonkopir Township/454 is situate in Kitengela, Kajiado County, so Section 12 of the Civil Procedure Act required filing at Kajiado, and no explanation was given for filing in Eldoret

Reasoning

The Certificate of Lease, Survey Report and Valuation Report all show the suit property lies in Kitengela Town, Kajiado County. Section 12 of the Civil Procedure Act requires suits relating to immovable property to be instituted where the property is situate; Section 15 provides the alternative of the defendants' residence or principal offices. The Petitioner offered no explanation for choosing Eldoret, miles away from both the property and the parties' offices.

p. 4
02

Whether the lack of territorial jurisdiction is fatal to the suit

Holding

No; the Eldoret ELC has subject-matter jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act, and territorial jurisdiction may be cured by transfer under the court's inherent power, so the PO fails

Reasoning

Distinguishing cases where a court lacking subject-matter jurisdiction cannot transfer a suit (Equity Bank v Mutie), the court held the Eldoret ELC enjoys the same unlimited land-jurisdiction as Kajiado ELC; the constitutional and statutory grant is not limited to particular territories. Territorial rules protect party convenience, and under Sections 3 and 3A of the Civil Procedure Act and Order 47 Rule 6, the court may in its inherent jurisdiction order trial at another place. The court therefore declined to strike out the Petition and instead transferred it.

p. 5
03

Who shall bear the costs of the preliminary objection

Holding

No order as to costs; although costs normally follow the event, the Petitioner's own choice of forum provoked the objection

Reasoning

Section 27(1) of the Civil Procedure Act makes costs follow the event unless the court for good reason orders otherwise, and a departure must be explained on record. Here the 1st Respondent lost the PO, but it was the Petitioner's unilateral decision to file in Eldoret that generated the objection. The court therefore exercised its discretion not to condemn the 1st Respondent to costs.

p. 8

Legal principles established

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  • A court of general (subject-matter) jurisdiction filed in the wrong territory is not deprived of jurisdiction; lack of territorial jurisdiction is not fatal and such a court may exercise its inherent power to transfer the case to the appropriate registry
  • Jurisdiction is conferred by the Constitution and statute, and territorial venue rules under Sections 12 and 15 of the Civil Procedure Act aim at the convenience of parties and access to justice

Court orders

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  1. 1.The 1st Respondent's preliminary objection dated 5th December, 2024 is dismissed with no order as to costs
  2. 2.The matter be transferred to the Environment and Land Court at Kajiado for hearing and determination

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court ActSection 13
  • Civil Procedure ActSection 12
  • Civil Procedure ActSection 15
  • Civil Procedure ActSections 3 and 3A
  • Civil Procedure ActSection 27(1)
  • Civil Procedure RulesOrder 47 Rule 6
  • Judiciary Environment and Land Court New Divisions: User Operations Guidelines 2023

Cases cited (13)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) 1 EA 696
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 Others
    (2012) eKLR
  • Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel
    (2016) eKLR
  • Macfoy v United Africa Co LTD
    [1961] 3 All ER 1169
  • Kagenyi v Musiramo and Another
    (1968) E.A. 43
  • Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & Another
    (2012) eKLR
  • Phoenix of E.A Assurance Co. Ltd v S.M Thiga t/a Newspaper Service
    (2019) eKLR
  • Kassam & Another v Pearl Beach Hotels t/a English Point Marina
    (2022) KEHC 14132 (KLR)
  • Hangzhou Agrochemical Industries Ltd v Panda Flowers Limited
    (2012) eKLR
  • Rapid Kate Services Ltd v Freight Forwarders Kenya Limited & 2 others
    (2005) 1 KLR 292
  • Madara Evans Okanga Dondo v Housing Finance Company of Kenya
    (2005) eKLR
  • Joseph Oduor Anode v Kenya Red Cross Society
    (2012) KEHC 3607 (KLR)
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "M Oriental Bank Limited v Kenya National Highways Authority & another (Environment and Land Petition E007 of 2024) [2025] KEELC 6787 (KLR)", Case Analysis (2025). Petition dated 24th May, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6787/eng@2025-10-09

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