In re Ogingo & 4 others (Environment and Planning Miscellaneous Application E002 of 2025) [2026] KEELC 3836 (KLR)
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
#Key legal issues
#Whether the transfer application was merited
The application was unmerited and dismissed with costs.
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.
Jurisdictional effect of filing in a court without jurisdiction
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.
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.
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.The notice of motion dated 28th October 2025 is dismissed
- 2.Costs of the application to the Respondent
- 3.The file is closed
- 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.