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ELCAllowedApplication dated 3rd October 2025 (re: Kiambu CMM ELC 46 of 2020)· [2026] KEELC 724 (KLR)

Kungu v Kamoche & another (Environment and Land Miscellaneous Application E095 of 2025) [2026] KEELC 724 (KLR)

Environment and Land Court
5 February 2026
JOJ. M. Onyango
2,255 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court can transfer a good-faith lawsuit to a higher court even if its value later exceeds the original court's jurisdiction.

What this practically means

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Executive summary

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The applicant moved the Environment and Land Court at Thika by Notice of Motion dated 3rd October 2025 seeking transfer of court file Kiambu CMM ELC Case No. 46 of 2020 from the Kiambu Chief Magistrate's Court to the ELC, contending that the dispute over five parcels (Kiambaa/Thimbigua/1886-1890), each valued around Ksh. 10 million after a 2024 valuation, had outgrown the Magistrates' Court's pecuniary jurisdiction. The respondents opposed through Grounds of Opposition, the 1st Respondent arguing that by the applicant's own admission the suit was void ab initio for want of jurisdiction and could not be salvaged by transfer. The court framed a sole issue: whether to exercise its discretion under section 18(1) of the Civil Procedure Act to transfer the suit. Reviewing the jurisprudence, including Nyasimi v China Henan International Co-operation Group Co. Ltd, the court identified two schools - the rigid view that a suit filed without jurisdiction is a nullity incapable of transfer, and the liberal, purposive view that a good-faith filing without prejudice to the opponent may be transferred. Adopting the latter, the court found the suit was filed in 2020 when no valuation existed, no pecuniary objection was raised in the interim, and the 2024 valuation emerged four years later. Penalising the applicant would elevate form over substance and frustrate the administration of justice. The application was allowed and the suit ordered transferred to the ELC, with no order as to costs.

Key legal issues

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Whether a suit whose value later exceeds the Magistrates' Court's pecuniary jurisdiction can be transferred under section 18(1) of the Civil Procedure Act

Holding

Yes - the suit was filed in good faith based on information reasonably available, and the later valuation does not retroactively vitiate the original filing; transfer to the ELC was warranted.

Reasoning

The court traced two schools of thought on section 18 transfers - the rigid view that a jurisdictionally defective suit is a nullity incapable of transfer, and the liberal, purposive view favouring transfer of good-faith filings without prejudice. Adopting the latter, the court found no valuation existed at filing in 2020, no pecuniary objection was raised while the suit pended, and the 2024 valuation emerged four years later. Penalising the applicant would elevate form over substance and frustrate access to justice.

p. 5

Legal principles established

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  • Section 18(1) of the Civil Procedure Act presupposes a lawfully instituted proceeding; the discretion to transfer cannot breathe life into a void suit, but where a suit was filed in good faith and no prejudice results, transfer may be ordered notwithstanding a later-ascertained jurisdictional shortfall.

Court orders

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  1. 1.Kiambu MELC Case No. 46 of 2020 (court file Kiambu ELC case 46 of 2020) transferred from Kiambu CMC Court to Thika ELC Court
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure Actsection 18(1)
  • Civil Procedure Actsection 18(2)
  • Civil Procedure Actsections 1A, 1B and 3
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (3)

  • Nyasimi v China Henan International Co-operation Group Co. Ltd
    [2023] KEELC 15736 (KLR)
  • Phoenix of EA Assurance Company Limited vs SM Thiga t/a Newspaper Service
    Civil Appeal No. 244 of 2010 [2019] eKLR
  • Rebeca Chumo vs Christine Cheptoo Chumo
    [2021] eKLR
Jurisdiction invoked
Section 18(1) of the Civil Procedure 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, "Kungu v Kamoche & another (Environment and Land Miscellaneous Application E095 of 2025) [2026] KEELC 724 (KLR)", Case Analysis (2026). Application dated 3rd October 2025 (re: Kiambu CMM ELC 46 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/724/eng@2026-02-05

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