Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC EP MISC E002 OF 2025· [2026] KEELC 3836 (KLR)

In re Ogingo & 4 others (Environment and Planning Miscellaneous Application E002 of 2025) [2026] KEELC 3836 (KLR)

Environment and Land Court
17 June 2026
1,003 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to transfer a land case because the applicants never actually filed the counterclaim they claimed justified moving it.

What this practically means

#

Executive summary

#
The applicants moved the Environment and Land Court at Homa Bay by notice of motion dated 28th October 2025 seeking transfer of Ndhiwa PMCC E038 of 2025 to the ELC for hearing and final determination. They relied on a ruling of 30th September 2025 in which the Ndhiwa court held it lacked jurisdiction to entertain a defence of adverse possession, and directed that an application for transfer be made to avoid duplicity. The applicants asserted their defence contained a counterclaim and cited Chevron (K) Ltd v Harrison Charahutu and Peter Kigoro Munyi among others. The respondent opposed, contending that no counterclaim had been filed and that a suit filed without jurisdiction is a nullity with nothing to transfer, relying on Justice Fred Nyagaka's decision in Catholic Diocese of Homabay v Aganya, which applied Phoenix of E.A. Assurance v S.M. Thiga. Justice Wanyonyi examined the defence and found paragraph 8 merely stated an intention to raise a counterclaim at the first instance; no counterclaim had actually been filed. Applying Kithita v Ngeana Mwaniki Kisuna, he held the burden lay on the applicants to make out a strong case for transfer, and that without a filed counterclaim there was no material on which the court could act. The application dated 28th October 2025 was found unmerited and dismissed with costs to the respondent. The file was closed. Ruling delivered virtually on 17th June 2026.

Key legal issues

#
01

Whether the transfer application was merited

Holding

The application was unmerited and dismissed with costs.

Reasoning

The applicants argued the lower court had ruled it lacked jurisdiction over a defence of adverse possession and that a counterclaim was pending. The court examined the defence and found paragraph 8 merely stated an intention to raise a counterclaim at the first instance; no counterclaim had in fact been filed. The burden of justifying transfer rests on the applicant, and without a filed counterclaim there was no material before the court on which transfer could be founded.

p. 4
02

Jurisdictional effect of filing in a court without jurisdiction

Holding

As per Phoenix of E.A. Assurance, a suit filed without jurisdiction is dead on arrival and cannot be remedied; jurisdiction must exist when the suit is filed.

Reasoning

The court, adopting Justice Nyagaka's reasoning in Catholic Diocese of Homabay v Aganya and the Court of Appeal's decision in Phoenix of E.A. Assurance, noted that a suit filed devoid of jurisdiction cannot be conferred jurisdiction retroactively; the subordinate court could not entertain even the parts within its pecuniary competence.

p. 3

Legal principles established

#
  • A suit filed in a court without jurisdiction is a nullity and cannot be cured; the remedy is withdrawal and filing afresh in a court of competent jurisdiction
  • The burden lies on an applicant for transfer to make out a strong case; mere balance of convenience is insufficient

Court orders

#
  1. 1.The notice of motion dated 28th October 2025 is dismissed
  2. 2.Costs of the application to the Respondent
  3. 3.The file is closed

Authorities

#

Legislation

  • Civil Procedure ActSection 18(1)(b)

Cases cited (5)

  • Cherron (K) Ltd v Harrison Charahutu
    (2016) eKLR
  • Peter Kigoro Munyi v Peer Mburu Kimani and Chemirmir Kipngeno Arap Bii
    (2018) eKLR
  • Catholic Diocese of Homabay v Aganya
    ELC Misc. Application No. E003 of 2025 KEELC 5048 (KLR)
  • Phoenix of E.A Assurance Company Limited v S.M. Thiga t/a Newspaper Service
    2019 (eKLR)
  • Kithita vs Ngeana Mwaniki Kisuna
    (2018) eKLR
Jurisdiction invoked
Section 18 of the Civil Procedure Act (power of the High Court/ELC to transfer suits); incidental jurisdiction of the ELC over transfers involving suits pending in subordinate courts

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "In re Ogingo & 4 others (Environment and Planning Miscellaneous Application E002 of 2025) [2026] KEELC 3836 (KLR)", Case Analysis (2026). ELC EP MISC E002 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3836/eng@2026-06-17

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