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ELCOtherELC Petition E003 of 2025 (originally High Court Constitutional Petition E004 of 2025)· [2025] KEELC 7668 (KLR)

Mbunguni Phase II Community v Kwale Land Adjudication Officer & 3 others (Environment and Land Petition E003 of 2025) [2025] KEELC 7668 (KLR)

Environment and Land Court
28 October 2025
LNLL Naikuni
2,341 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a case filed in the wrong court cannot simply be moved to the right one; it must be restarted as a fresh filing.

What this practically means

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Executive summary

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This is a direction issued suo motu by the Environment and Land Court at Kwale concerning a constitutional petition filed by Mbunguni Phase II Community at the High Court at Kwale challenging the land adjudication process at Mbunguni Phase II Settlement Scheme, and seeking declarations that the process was fraudulent and null and void, plus mandamus to recall title deeds and conduct a fresh adjudication. On 22nd January 2025, Justice Andayi directed that the matter be transferred to the ELC as a land adjudication dispute. On transfer, the ELC posed queries, principally whether the High Court had power to transfer a suit wrongfully filed before it for want of jurisdiction. Relying on stare decisis, Naikuni J applied the Supreme Court's decision in Mumba v Munyao citing Kagenyi v Musiramo, together with Equity Bank v Mutuku, Wamigwi v Wanjiku, Macfoy v United Africa Company, Gichoya v Magu and Chanda v Kamwaria, holding that a suit filed in a court lacking jurisdiction is a nullity ab initio, incapable of being transferred and incurable by the overriding objective under Sections 1A and 1B of the Civil Procedure Act or Article 159(2)(d) of the Constitution. The Court directed that the petition be referred back to the High Court at Kwale, which may strike it out for lack of jurisdiction, fixed a mention on 12th November 2025, and directed the Petitioner to file a fresh petition before the ELC at Kwale. Each party was ordered to bear their own costs.

Key legal issues

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Whether the ELC may continue hearing a suit transferred to it by the High Court where the suit was originally filed in a court lacking jurisdiction

Holding

No. A suit filed in a court without jurisdiction is a nullity ab initio; it cannot be transferred or salvaged by the overriding objective or Article 159(2)(d), and must be struck out in the transferring court with a fresh suit filed in the competent court.

Reasoning

Guided by stare decisis, the court applied Supreme Court and Court of Appeal authority holding that jurisdiction cannot be conferred by consent or transfer. Citing Kagenyi v Musiramo, Equity Bank v Mutuku, Wamigwi v Wanjiku and Macfoy v United Africa Company, it reasoned that a nullity is nothing in law and there is nothing capable of transfer; judicial craftsmanship cannot sanctify an incompetent suit through transfer.

p. 5

Legal principles established

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  • An order for transfer of a suit cannot be made unless the suit was first brought to a court with jurisdiction to try it; parties cannot consent to confer jurisdiction.
  • A suit instituted in a court without jurisdiction is a nullity in law and cannot be transferred or cured by the overriding objective or Article 159(2)(d).

Court orders

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  1. 1.ELC Petition E003 of 2025 referred back to the High Court at Kwale as HCCHRPET/E004/2025, whereby the High Court can strike out the suit for lack of jurisdiction or issue appropriate orders or directions
  2. 2.Matter to be mentioned on 12th November 2025 before the High Court for directions
  3. 3.Petitioner to file a fresh Petition before the Environment and Land Court Kwale
  4. 4.Each party to bear their own costs
On appeal from
High Court at Kwale
HCCHPET/E004/2025
Jurisdiction invoked
Articles 162(2) and 165 of the Constitution of Kenya, 2010

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, "Mbunguni Phase II Community v Kwale Land Adjudication Officer & 3 others (Environment and Land Petition E003 of 2025) [2025] KEELC 7668 (KLR)", Case Analysis (2025). ELC Petition E003 of 2025 (originally High Court Constitutional Petition E004 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7668/eng@2025-10-28

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