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ELCAllowedNot stated in the judgment

Mukinye Enterprises Limited & 2 others v Mikwa & another (Environment and Land Appeal E055 of 2023) [2026] KEELC 749 (KLR)

Environment and Land Court
11 February 2026
3,418 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court threw out a land ownership judgment because the magistrate who heard the case was never officially assigned land cases.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Thika against the judgment of Hon. Stella Atambo, CM delivered on 6/06/2023 in Thika CMCC No. 26 of 2018, in which the 1st Respondent was declared bona fide owner of LR Ruiru/Kiu Block 14/86, the Appellants' titles ordered cancelled, vacant possession ordered, and a permanent injunction issued. The Appellants raised ten grounds, two of which were jurisdictional: that Hon. Dr. Macharia, who heard and concluded the matter, had not been gazetted to handle Environment and Land matters, and that Hon. Atambo delivered a final judgment without having heard any evidence. The appeal was canvassed by written submissions. The court held, relying on Section 26 of the Environment and Land Court Act, Section 9 of the Magistrates' Courts Act and the Lillian S doctrine, that land jurisdiction in subordinate courts is a designated power activated by Gazette Notice, and that a Magistrate without such designation acts as a stranger to the suit, rendering proceedings a nullity ab initio. Hon. Dr. Macharia's own recorded admission in chambers that her Court had no jurisdiction was treated as fatal. The court further held that since the evidence was recorded by a Magistrate without jurisdiction, it was dead on arrival, and Hon. Atambo's judgment built on that void record was a double nullity. The court declined to examine the remaining grounds. The appeal was allowed, the judgment and decree of the lower court set aside and declared a nullity, the matter remitted for trial de novo before a Magistrate with the requisite jurisdiction, with costs of the appeal borne by the 1st 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 who had not been gazetted as one to handle Environment and Land matters could hear the said matters without jurisdiction.
  2. 2.Whether Hon. Atambo CM could deliver a final Judgment in a matter where they did not hear the evidence.

Key legal issues

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01

Jurisdiction of a Magistrate not gazetted to handle Environment and Land matters

Holding

The proceedings before Hon. Dr. Macharia, who admitted she had not been gazetted to handle ELC matters, were a legal nullity ab initio and coram non judice.

Reasoning

Under Article 162(2)(b) and Section 26 of the ELC Act, land jurisdiction in subordinate courts is a designated power activated by the Chief Justice through Gazette Notice. A Magistrate not gazetted acts as a stranger to the suit; jurisdiction is conferred by Parliament and activated by the Chief Justice, and cannot rest on consent of parties. The trial Magistrate's own admission that her Court had no jurisdiction was fatal.

p. 6
02

Whether a Magistrate who did not hear the evidence can deliver a final judgment

Holding

Hon. Atambo CM could not deliver judgment on a void record; a successor may take over a suit but only where the record is valid, and here the evidence was 'dead on arrival'.

Reasoning

Generally a judgment should be read by the judicial officer who heard the evidence. While Order 18 Rule 11 of the Civil Procedure Rules allows a successor to act on a predecessor's recorded evidence, that process presupposes valid proceedings. Since Hon. Dr. Macharia lacked jurisdiction, the record she produced was a nullity and the judgment built on it could not stand.

p. 7
03

Scope of remaining grounds of appeal

Holding

The court declined to examine the other grounds because lack of jurisdiction nullified all proceedings.

Reasoning

Once the foundational jurisdictional defects were established, the other eight grounds attacking the trial court's factual and legal findings became moot, as a judgment that is a nullity requires no evaluation of its merits.

p. 7

Legal principles established

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  • A Magistrate not gazetted to handle land matters lacks jurisdiction, and any decision made without jurisdiction is a nullity void from the beginning.
  • A judgment delivered by an officer who did not hear the parties, based on a record produced by an officer without jurisdiction, is a double nullity.
  • Jurisdiction flows from the Constitution and statute and cannot be conferred by consent of parties.

Court orders

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  1. 1.The Appeal is hereby Allowed.
  2. 2.The Judgment and Decree of the lower Court in Thika CMCC No. 26 OF 2018 are set aside and declared a nullity.
  3. 3.The matter is remitted back to the Magistrate's Court for a Trial De Novo before a Magistrate with the requisite jurisdiction.
  4. 4.The costs of this Appeal shall be borne by the 1st Respondent.

The bench

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

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Thika
Thika CMCC No. 26 of 2018
Jurisdiction invoked
First appeal under the Environment and Land Court Act; jurisdiction of subordinate courts to hear land matters under Section 26 of the Environment and Land Court Act and Section 9 of the Magistrates' Courts Act, read with Article 162(2)(b) of the Constitution

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.

Jurisdiction is a bloodline of the Court's powers.
p. 6jurisdiction
A Judicial Oficer cannot assume power that has not been conferred by a formal Gazette Notice.
p. 6jurisdiction - gazettement of magistrates
The Appeal is hereby Allowed.
p. 7disposition
The Judgment and Decree of the lower Court in Thika CMCC No. 26 OF 2018 are set aside and declared a nullity.
p. 7disposition - setting aside judgment
The matter is remitted back to the Magistrate's Court for a Trial De Novo before a Magistrate with the requisite jurisdiction.
p. 7disposition - remittal
The costs of this Appeal shall be borne by the 1st Respondent.
p. 7costs

Issues in the judgment

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material

The memorandum of appeal is dated 16th September 2022, yet the judgment appealed against is dated 06/06/2023 - a chronology contradiction on the face of the judgment.

minor

The judgment is internally inconsistent on the rank of Hon. Atambo, describing her at one point as CM (Chief Magistrate) and in the appeal history as the person who never heard the case while the hearing concluded before Hon. Dr. Macharia.

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, "Mukinye Enterprises Limited & 2 others v Mikwa & another (Environment and Land Appeal E055 of 2023) [2026] KEELC 749 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/749/eng@2026-02-11

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