Mulesi (Suing as the personal representative of the Estate of Juma Shibende Oloo) v Masakhwe & another (Environment and Land Miscellaneous Case E051 of 2025) [2026] KEELC 938 (KLR)

The bottom line

A Kenyan court confirmed that once a case has been decided, you cannot transfer it to another court—your remedy is an appeal.

What this practically means

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Executive summary

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The applicant moved the Environment and Land Court at Kakamega by Notice of Motion dated 4th June 2025 seeking transfer of Mumias SPMCELC Case No. E044 of 2024 (OS) for further directions and reinstatement for hearing in a court with competent jurisdiction, with costs to the respondents. He asserted that directions had been given for determination by affidavits and written submissions; that the 2nd respondent's replying affidavit was never served; that the suit was nonetheless heard and dismissed with costs on 16th January 2025; that the cause of action, being land-related, survived; and that the trial court lacked jurisdiction. The 2nd respondent opposed, averring that the applicant's counsel was served with pleadings and documents, that both parties opted for written submissions, that judgment had been entered, and that the applicant had not sought transfer before judgment. He further asserted that the subject parcel, No. E. Wanga/Lubinu/3135, was the subject of prior litigation, including Mumias SPMCELC No. 16 of 2019, whose decree for eviction was upheld on appeal in Kakamega ELC Case No. E017 of 2023, rendering the suit res judicata. The court framed a single issue: whether the applicant deserved the orders sought. Holding that it had jurisdiction under section 18(1)(b)(i) of the Civil Procedure Act to transfer a pending suit, the court found that the suit had already been heard on merit to conclusion and judgment delivered, leaving nothing pending capable of transfer, and that a transfer application was not the proper forum to express dissatisfaction with the trial court's decision. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether a concluded suit can be transferred under section 18(1)(b)(i) of the Civil Procedure Act

Holding

No; transfer lies only for suits pending before a magistrates' court, and once judgment has been delivered there is no suit capable of transfer

Reasoning

The court accepted it had jurisdiction and discretion to transfer a pending suit from a magistrates' court under section 18(1)(b)(i) of the Civil Procedure Act. However, the suit sought to be transferred had been heard on merit, determined by the trial court, and judgment delivered on 16th January 2025. Nothing was pending, so no suit existed capable of transfer. Grievances about the trial court's jurisdiction, including dissatisfaction with the outcome, could not be pursued through a transfer application.

p. 2

Legal principles established

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A suit that has been heard and determined on merit cannot be transferred under section 18 of the Civil Procedure Act as nothing remains pending

Court orders

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1.Dismissal of the Notice of Motion dated 4th June 2025
2.Costs of the application to the respondents

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, "Mulesi (Suing as the personal representative of the Estate of Juma Shibende Oloo) v Masakhwe & another (Environment and Land Miscellaneous Case E051 of 2025) [2026] KEELC 938 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/938/eng@2026-02-11

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