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ELCDismissed· [2025] KEELC 8235 (KLR)

Mukavane v Co-operative Bank of Kenya Limited (Environment and Land Case E014 of 2025) [2025] KEELC 8235 (KLR)

Environment and Land Court
27 November 2025
ECE. C. CHERONO
1,192 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court cannot transfer a case filed in the wrong court; suits filed without jurisdiction are dead on arrival and must be filed afresh.

What this practically means

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Executive summary

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The Applicant moved the Environment and Land Court at Bungoma by Notice of Motion dated 20 June 2025 seeking that his plaint of 16 May 2025, with accompanying pleadings and injunction application against a threatened foreclosure, be returned to him for presentation before the High Court at Bungoma, the court with jurisdiction over disputes relating to charges. The Respondent filed a preliminary objection dated 14 August 2025 contending that the suit, filed without jurisdiction, was a nullity and had to be struck out. The Applicant conceded that the ELC lacked jurisdiction but urged the court to exercise its inherent powers under Sections 1A, 1B and 3A of the Civil Procedure Act and Articles 48, 50 and 159(2)(d) of the Constitution to transfer the matter in the interest of substantive justice. The court, per E. C. Cherono ELC Judge, held that jurisdiction flows from the Constitution or statute and that an order transferring a suit cannot be made unless the suit was first commenced in a court with jurisdiction to try it; otherwise the suit is a nullity. Following the Supreme Court's decision in Mumba, which endorsed Kagenyi v Musiramo, the court held it could not assume authority to transfer a suit over which it had no jurisdiction. The motion was dismissed, the preliminary objection allowed, and the suit struck out for want of jurisdiction, with no order as to costs given the procedural nature of the objection.

Key legal issues

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01

Jurisdiction to transfer a suit to a court of equal status

Holding

The ELC, lacking jurisdiction over the charge dispute, could not transfer the suit to the High Court; the suit was struck out.

Reasoning

Jurisdiction flows from the Constitution or statute. The court accepted it lacked jurisdiction over disputes relating to charges. Relying on Kagenyi v Musiramo as quoted by the Supreme Court in Mumba, a transfer order cannot issue unless the suit was first filed in a court with jurisdiction; otherwise the suit is a nullity. The inherent powers and Oxygen principles cannot confer jurisdiction.

p. 3

Legal principles established

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  • A court cannot transfer a suit that was commenced before a court lacking jurisdiction, as such a suit is a nullity

Court orders

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  1. 1.Notice of Motion dated 20/06/2025 dismissed
  2. 2.Preliminary objection dated 14/08/2025 allowed
  3. 3.Suit struck out for want of jurisdiction
  4. 4.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Constitution of KenyaArticles 48, 50, 159(2)(d), 162(2)(b)
  • Environment and Land Court ActSection 13

Cases cited (9)

  • Co-operative Bank of Kenya Limited v Patrick Kang'ethe Njuguna & 5 others
    [2017] eKLR
  • Bank of Africa Kenya Ltd v TSS Investment Ltd
    Civil Appeal No. E055 of 2022
  • Lemanken Aramat v Harun Meitamei Lempaka & 2 Others
    [2014] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR; (2012) KESC 8 (KLR)
  • Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel
    2016 KECA 250 (KLR)
  • Rev. Madara Evans Okanga v Housing Finance Company of Kenya
    HCCC No. 262 of 2005
  • Prof Daniel Mugendi v Kenyatta University & Others
    Civil Appeals No. 6 of 2012
  • Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others
    [2019] eKLR
  • Kagenyi v Musiramo & Another
    (1968) EALR 43
Jurisdiction invoked
Article 162(2)(b) of the Constitution and 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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Cite this brief

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Cite this brief

Caselaw, "Mukavane v Co-operative Bank of Kenya Limited (Environment and Land Case E014 of 2025) [2025] KEELC 8235 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8235/eng@2025-11-27

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