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ELCDismissedMiscellaneous Application dated 12/03/2025 (arising from Ruiru CMELC Case No. E240 of 2024)

Njoroge v Waithira (Environment and Land Miscellaneous Application E034 of 2025) [2026] KEELC 46 (KLR)

Environment and Land Court
20 January 2026
MOMOGENI
3,251 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to transfer a land case filed in the wrong court, ruling such a suit is a legal nullity that must be filed afresh, not moved.

What this practically means

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Executive summary

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By a Notice of Motion dated 12/03/2025, the Applicant sought transfer of Ruiru CMELC Case No. E240 of 2024 (Lawrence Njoroge vs Keziah Waithira) from the Chief Magistrate's Court to the Environment and Land Court, with pre-trial directions and costs. The suit concerned parcel Ruiru/Ruiru West Block 3/146, filed on 2/12/2024 based on valuations of about Kshs 15,000,000, within the subordinate court's Kshs 20,000,000 pecuniary jurisdiction. The Respondent's valuation placed the value at Kshs 23,000,000, and on 30/04/2025 the Chief Magistrate, Hon Joseph Were, ruled that the suit be transferred to a court of unlimited jurisdiction, given conflicting valuations and likely appreciation of the property. The Respondent opposed transfer, arguing that a court lacking jurisdiction must down its tools and cannot transfer a suit; the Applicant relied on Article 159(2)(d) and Section 18 of the Civil Procedure Act. Framing three issues, Mogeni J held that a transfer order cannot issue unless the suit was first commenced in a competent court; a suit filed without jurisdiction is a nullity. Relying on Kagenyi vs Misiramo, Macharia vs Kenya Commercial Bank, Equity Bank vs Mutie and Mumba, the Court held the Section 18 power applies only to competent suits and cannot be used to clothe an incompetent suit with jurisdiction, overriding Article 159(2)(d). The proper course was to strike out or withdraw and file afresh without triggering res judicata. The application was dismissed with costs to the Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Magistrate's Court had jurisdiction to entertain the suit when it was filed
  2. 2.Whether this Court has the power to transfer the suit from the Subordinate Court to the Environment and Land Court
  3. 3.Who shall bear the costs of this suit

Key legal issues

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01

Whether the Chief Magistrate's Court at Ruiru had pecuniary jurisdiction over the suit

Holding

It did not; the suit property's value exceeded the Kshs 20,000,000 pecuniary jurisdiction of the Court, rendering the suit incompetent

Reasoning

The Applicant filed suit relying on a Ministry of Lands valuation of Kshs 15,000,000, within the subordinate court's Kshs 20,000,000 limit. The Respondent's valuation placed the value well above Kshs 20,000,000 and the magistrate's ruling of 30/04/2025 acknowledged the jurisdictional difficulty. Following Macharia vs Kenya Commercial Bank, jurisdiction derives from Constitution or statute and cannot be arrogated. Consequently the suit was a nullity from inception.

p. 6
02

Whether the Environment and Land Court could transfer the suit under Section 18 of the Civil Procedure Act

Holding

It could not; the Section 18 power applies only to competently filed suits, and a nullity cannot be transferred

Reasoning

Relying on Kagenyi vs Misiramo (as cited in Omwoyo and Mumba), Equity Bank vs Mutie, and Joseph K. Gitau vs Francis Waiagwa Waithaka, the Court held that the power to transfer suits under Section 18(1) cannot be used to clothe an incompetent suit with jurisdiction. The proper course was for the magistrate to strike out the suit or for the Applicant to withdraw and file afresh, avoiding res judicata.

p. 5
03

Costs of the application

Holding

Costs awarded to the Respondent as the application was dismissed

Reasoning

Having found the application devoid of merit, the Court exercised its ordinary discretion on costs in favour of the successful Respondent.

p. 6

Legal principles established

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  • An order for transfer of a suit cannot be made unless the suit was in the first instance commenced in a Court with jurisdiction; a suit filed in a Court without jurisdiction is a nullity and incapable of transfer
  • A Court's jurisdiction flows from the Constitution or legislation and cannot be exceeded; a party-initiated transfer requires a strong case, and jurisdiction cannot be conferred by consent or by the overriding objective

Court orders

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  1. 1.The application dated 12/03/2025 is dismissed
  2. 2.Costs of the application awarded to the Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MO
majority

Wrote the judgment

Jurisdiction invoked
Section 18 of the Civil Procedure Act; Article 159(2)(d) of the Constitution (invoked by applicant)

Relief refused

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Transfer of Ruiru CMELC Case No. E240 of 2024 from the Chief Magistrate's Court to the Environment and Land Court

The suit was filed in a Court without pecuniary jurisdiction and is a nullity; there is nothing competent to transfer under Section 18 of the Civil Procedure Act

p. 6

Setting the suit down for pre-trial directions upon transfer

Fell with the dismissal of the transfer application

Costs

The application dated 12/03/2025 is dismissed with costs to the Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An order for the transfer of a suit from one Court to another cannot be made unless the suit was in the first instance commenced in a Court which had jurisdiction to try it.
p. 4Transfer of suits - prerequisite of jurisdiction
If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside.
p. 6Nullity of proceedings founded on want of jurisdiction (Macfoy, approved)
Consequently, the application dated 12/03/2025 is devoid of merit and the same is dismissed with costs to the Respondent.
p. 6Final orders - dismissal with costs
The general power of the Court to transfer suits under Section 18 of the Civil Procedure Act cannot therefore be exercised in a matter where the suit was filed in a Court without jurisdiction.
p. 5Limits of Section 18 supervisory/transfer power

Issues in the judgment

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minor

Applicant's supporting submissions date the private valuer's report inconsistently, once as 20/06/2024 and once as 20/02/2024

minor

The judgment does not name the case number of the miscellaneous application, and currency figures are inconsistently rendered ('Kesh' vs 'Kshs')

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, "Njoroge v Waithira (Environment and Land Miscellaneous Application E034 of 2025) [2026] KEELC 46 (KLR)", Case Analysis (2026). Miscellaneous Application dated 12/03/2025 (arising from Ruiru CMELC Case No. E240 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/46/eng@2026-01-20

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