Kirimi v Laban (Environment and Land Appeal E016 of 2024) [2025] KEELC 8305 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled it cannot hear matrimonial property appeals, sending this land dispute back to the High Court for a fresh hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Environment and Land Court has jurisdiction to entertain an appeal touching on disputes under the Matrimonial Property Act, 2013
It does not; such appeals lie to the High Court under Rule 33 of the Matrimonial Property Rules, 2022, and the absence of jurisdiction cannot be cured by the parties' acquiescence.
The court held that jurisdiction is donated by the Constitution or statute and a court cannot arrogate to itself jurisdiction not conferred by law. Rule 33 of the Matrimonial Property Rules, 2022 vests appellate jurisdiction over Matrimonial Property Act disputes in the High Court. Reliance was placed on Supreme Court and Court of Appeal authority that jurisdiction goes to the heart of a matter and cannot be conferred by consent or acquiescence, and can be raised even on appeal. The court thus declined to determine the substantive matrimonial property questions.
Whether to strike out the appeal or remit it to the High Court
The appeal was remitted to the High Court rather than struck out, in the interests of justice given the emotive and sensitive nature of the dispute.
The court weighed striking out the appeal against remitting it. Applying the nuanced approach endorsed by the Supreme Court in Nicholus v Attorney General and the Court of Appeal in Mugendi v Kenyatta University, the court concluded that the interests of justice were best served by remitting the appeal to the High Court so the substantive issues could be fully canvassed and resolved, rather than punishing the appellant for counsel's error in invoking the wrong forum.
Legal principles established
#- Jurisdiction of a court is donated by the Constitution or statute and cannot be conferred by consent, acquiescence or waiver; it may be raised at any stage even on appeal.
Court orders
#- 1.The directions pertaining to the delivery of Judgment in respect of the subject appeal by the Environment and Land court be and are hereby vacated.
- 2.The subject Appeal be and is hereby remitted to the High Court for hearing and eventual determination.
- 3.The High court shall be at liberty to exercise its jurisdiction in line with the provisions of Rule 33 of the Matrimonial Properties Rules 2022 as read together with Article 165 (1) of the Constitution 2010.
- 4.The costs of the Appeal shall abide the outcome of the appeal.
- 5.Either party shall be at liberty to apply.
- On appeal from
- Chief Magistrate's Court (trial court, Hon. T.M Mwangi – Senior Principal Magistrate)
- Jurisdiction invoked
- Rule 33 of the Matrimonial Property Rules, 2022 as read together with Article 165(1) of the Constitution, 2010 (appeals under the Matrimonial Property Act lie to the High Court, not the ELC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirimi v Laban (Environment and Land Appeal E016 of 2024) [2025] KEELC 8305 (KLR)", Case Analysis (2025). Not stated in the judgment ( Memorandum of Appeal dated 5th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8305/eng@2025-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.