Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 8th August 2025 (Milimani Environment and Land Court)· [2026] KEELC 3601 (KLR)

Theuri v Njogu & 2 others (Environment and Land Miscellaneous Application E242 of 2025) [2026] KEELC 3601 (KLR)

Environment and Land Court
3 June 2026
3,471 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

#

A Kenyan court refused to rescue a land dispute filed in the wrong court, ruling that a case filed without jurisdiction is a nullity and must be started afresh.

What this practically means

#

Executive summary

#
The Applicant, Samuel Kimondo Theuri, moved the Environment and Land Court at Milimani by Notice of Motion dated 8th August 2025 seeking transfer of Milimani MCELC No. E190 of 2021 from the subordinate court to the ELC. He claimed ownership of a property allocated to him in 1986 and alleged it was fraudulently reallocated to the 1st Respondent. The subordinate court, in a ruling of 24th July 2025, found it lacked pecuniary jurisdiction after a Ministry of Lands valuation placed the property at Kshs. 38,700,000, and directed him to move the matter to a higher court. The Applicant argued the misfiling was an inadvertent mistake by his advocate and invoked Section 4(2) of the ELC Act read with Section 18(1)(b)(i) of the Civil Procedure Act and Article 159(2)(d) of the Constitution. The 1st Respondent opposed, contending the suit was a nullity filed without jurisdiction, that she had valued the property at Kshs. 37 million in 2020, and that a suit filed in a court lacking jurisdiction cannot be transferred. The court, relying on Boniface Waweru Mbiyu, Equity Bank v Bruce Mutie Mutuku and Mumba v Munyao, held that jurisdiction must exist at filing, that the suit was a nullity ab initio, and that neither Article 159 nor the delay in raising the objection could cure the substantive jurisdictional defect. The application was dismissed with each party bearing its own costs, the Applicant being left to file a fresh suit in a competent court.

Key legal issues

#
01

Whether the Environment and Land Court can withdraw and transfer a suit filed in a subordinate court lacking pecuniary jurisdiction

Holding

It cannot; the suit is a nullity ab initio and the transfer power does not apply

Reasoning

Relying on Boniface Waweru Mbiyu, Equity Bank v Bruce Mutie Mutuku and Mumba v Munyao, the court held that jurisdiction must exist at filing; a suit filed in a court without jurisdiction is dead on arrival, cannot be sanctified by transfer, and cannot be rescued by the overriding objective or Article 159(2)(d). The only remedy is withdrawal and filing a fresh suit in a competent court.

p. 7
02

Whether the 1st Respondent's delay in raising the preliminary objection amounted to acquiescence curing the defect

Holding

No; lapse of time or the other party's delay cannot remedy a jurisdictional defect

Reasoning

The court acknowledged the 1st Respondent's 2020 valuation showing the property exceeded the subordinate court's pecuniary jurisdiction and her three-year silence, but held equitable considerations of delay cannot override the established principle that jurisdiction is primordial and cannot be conferred by conduct or acquiescence.

p. 7

Legal principles established

#
  • A suit filed in a court lacking jurisdiction is a nullity and cannot be transferred to a competent court under Section 18 of the Civil Procedure Act
  • Article 159 of the Constitution cannot cure a substantive jurisdictional defect
  • Delay or acquiescence by the opposing party in raising a jurisdictional objection does not remedy the defect

Court orders

#
  1. 1.The application dated 8th August 2025 is dismissed
  2. 2.Each party to bear its own costs
Jurisdiction invoked
Sections 4(2) and 13 of the Environment and Land Court Act; Sections 1A, 1B, 3, 3A, 4 and 18(1)(b)(i) of the Civil Procedure Act; Article 162(2)(b) of the Constitution of Kenya, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Theuri v Njogu & 2 others (Environment and Land Miscellaneous Application E242 of 2025) [2026] KEELC 3601 (KLR)", Case Analysis (2026). Notice of Motion dated 8th August 2025 (Milimani Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3601/eng@2026-06-03

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