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ELCDismissedNot stated in judgment (application dated 14th July, 2025 in ELC Kericho)· [2026] KEELC 2592 (KLR)

Korir v Sonoya & 2 others (Environment and Land Miscellaneous Application E019 of 2025) [2026] KEELC 2592 (KLR)

Environment and Land Court
30 April 2026
LOL. A. Omollo
2,574 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kericho refused to transfer a land case filed in a magistrates' court without jurisdiction, ruling the suit was void from the start.

What this practically means

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Executive summary

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The Applicant, by a Notice of Motion dated 14th July, 2025 brought under Sections 1A, 1B, 3, 3A and 18(1)(b) of the Civil Procedure Act, Section 3(1) of the Environment and Land Court Act and Article 159(2) of the Constitution, sought the transfer of Bomet CM ELC Case No. 15 of 2023 to the Environment and Land Court. The suit had been filed before the Chief Magistrate's Court at Bomet, heard, and judgment delivered on 11th June, 2025, whereupon the trial court found it lacked pecuniary jurisdiction and declined to determine the suit. The Applicant argued the court had subject-matter but not pecuniary jurisdiction, relied on Tochima v Chebii, and submitted that a procedural misstep should not extinguish a deserving claim and that substantive justice favoured transfer rather than nullification. The 3rd Respondent opposed through grounds of opposition and submissions, relying principally on Equity Bank Ltd v Bruce Mutie Mutuku t/a Diani Tour & Travel, Abraham Mwangi Wamigwi and Phoenix of E.A Assurance, contending that a suit filed without jurisdiction is a nullity incapable of transfer and that the only remedy was withdrawal and fresh filing before a competent court. Justice L. A. Omollo framed a single issue: whether the Bomet suit should be transferred to the ELC. Reviewing Section 18 of the Civil Procedure Act and the Magistrates' Courts Act pecuniary limits, and following Equity Bank and Oceanic Towers, the court held that a suit filed in a court lacking jurisdiction is a nullity which cannot be transferred, and that the overriding objective and Article 159 cannot cure the defect. The application was dismissed with costs.

Key legal issues

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01

Whether a suit filed before a subordinate court lacking pecuniary jurisdiction can be transferred under Section 18 of the Civil Procedure Act to a competent court

Holding

No - a suit filed in a court without jurisdiction is a nullity and cannot be transferred; the transfer power only applies to competent suits.

Reasoning

The court relied on the Court of Appeal's decision in Equity Bank v Mutuku and Abraham Mwangi Wamigwi, which hold that no competent suit exists where jurisdiction is wanting, and the O2 principle and Article 159 cannot cure it. The applicant did not attach the pleadings or judgment from the trial court, but it was not disputed that the trial court had found it lacked pecuniary jurisdiction. Applying these authorities, transfer must be refused.

p. 7
02

Whether the overriding objective and Article 159(2) of the Constitution can cure a suit filed without jurisdiction

Holding

No - where jurisdiction is lacking, parties cannot seek refuge under the overriding objective, the Appellate Jurisdiction Act or Article 159 of the Constitution.

Reasoning

Following Equity Bank v Mutuku, jurisdiction is a fundamental matter that cannot be conferred even by consent of the parties. Procedural devices such as transfer, the O2 principle or Article 159 cannot be used as judicial craftsmanship to sanctify an otherwise incompetent suit. The applicant's argument that procedure is the handmaiden of justice and that the misstep was a mere procedural one could not overcome this fundamental bar.

p. 6

Legal principles established

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  • The High Court cannot under Section 18 of the Civil Procedure Act transfer a suit filed in a court lacking jurisdiction, as such a suit is a nullity.

Court orders

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  1. 1.The Applicant's application dated 14th July, 2025 is dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 18(1)(b)
  • Environment and Land Court ActSections 3(1), 13(1), 26
  • Constitution of KenyaArticles 159(2), 162(2)(b)
  • Magistrates' Courts Act (referred to as Magistrates Act)Sections 7(1) and (2), 9(a)
  • Appellate Jurisdiction ActReferred to generally in Equity Bank quotation

Cases cited (6)

  • Equity Bank Limited vs Bruce Mutie Mutuku t/a Diani Tour Travel
    [2016] eKLR / [2016] KECA 250 KLR
  • Tochima v Chebii
    [2023] KEELC 22122 (KLR)
  • Abraham Mwangi Wamigwi vs Simon Mbiriri Wanjiku & another
    [2012] eKLR
  • Phoenix of E.A Assurance Company Limited vs S.M Thiga t/a Nespaper Service
    [2019] eKLR
  • Oceanic Towers Limited v Husseini Builders Limited
    [2021] eKLR
  • David Kabungu v Zikarenga & 4 others
    Kampala HCCS No. 36 of 1995
On appeal from
Chief Magistrate's Court at Bomet
Bomet CM ELC Case No. 15 of 2023
Jurisdiction invoked
Sections 1A, 1B, 3, 3A & 18(1)(b) of the Civil Procedure Act; Section 3(1) of the Environment and Land Court Act; Article 159(2) of the Constitution of Kenya

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, "Korir v Sonoya & 2 others (Environment and Land Miscellaneous Application E019 of 2025) [2026] KEELC 2592 (KLR)", Case Analysis (2026). Not stated in judgment (application dated 14th July, 2025 in ELC Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2592/eng@2026-04-30

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