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ELCDismissedEmbu Magistrate's Court ELC Case No. E044 of 2023 (transfer application, Notice of Motion dated 08/10/2025)· [2026] KEELC 4798 (KLR)

Kiragu (Suing as the Administrator of the Estate of the Late Kathina Wathimu alias Kathina Thirimu) v Gatumu & 7 others (Miscellaneous Application E032 of 2025) [2026] KEELC 4798 (KLR)

Environment and Land Court
23 July 2026
ECE.C Cherono
1,931 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's ELC ruled it cannot transfer a lawsuit filed in a court that had no jurisdiction; the applicant must simply file a fresh case.

What this practically means

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Executive summary

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The Applicant, Joseph Kinyua Kiragu, moved the Environment and Land Court at Embu by Notice of Motion dated 08/10/2025 seeking withdrawal of Embu Magistrate's Court ELC Case No. E044 of 2023 to the ELC for trial and disposal. The application followed a ruling of the magistrate's court dated 17/07/2025 in which that court found it lacked pecuniary jurisdiction, the suit lands (Gaturi/Githimu/8831, 8832, 8835, 8836, 8837, 8839 and 8840) being valued at Kshs. 23 million. The Applicant argued the transfer was justified under section 18(1) of the Civil Procedure Act, sections 1A and 1B (overriding objective) and Article 159(2)(d) of the Constitution. The Respondents opposed, contending that a suit filed in a court without jurisdiction is a nullity, incapable of being transferred, and that section 18 applies only to competent suits. Relying on Equity Bank v Bruce Mutie Mutuku and Phoenix of E.A. Assurance v Thiga, E.C Cherono, ELC Judge, held that the transfer power under section 18 is exercisable only in respect of a competent suit; a suit instituted before a court lacking jurisdiction is incompetent ab initio and cannot be sanctified by transfer, nor can the overriding objective or Article 159 cure the defect. The application was accordingly dismissed with costs to the Respondents, the Applicant being left to institute a fresh suit before a court of competent jurisdiction.

Key legal issues

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Whether the ELC may, under section 18 of the Civil Procedure Act, withdraw and transfer a suit filed before a magistrate's court that lacked pecuniary jurisdiction

Holding

It cannot; section 18 applies only to competent suits. A suit filed in a court without jurisdiction is a nullity ab initio and cannot be validated by transfer; the applicant's remedy is a fresh suit in a court with jurisdiction.

Reasoning

The magistrate's court had itself ruled on 17/07/2025 that it lacked pecuniary jurisdiction over land valued at Kshs. 23 million. Applying Equity Bank v Mutie and Phoenix of E.A. Assurance v Thiga, the court held that no competent suit exists capable of being transferred, that jurisdiction cannot be conferred by consent or overriding objective considerations, and that striking out and refiling does not defeat substantive justice in these circumstances.

p. 8

Legal principles established

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  • The power under section 18 of the Civil Procedure Act to withdraw and transfer suits is exercisable only in respect of a competent suit; a suit filed in a court lacking jurisdiction is a nullity incapable of transfer.

Court orders

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  1. 1.The Notice of Motion dated 08/10/2025 is dismissed with costs to the Respondents.
Jurisdiction invoked
Section 18(1) of the Civil Procedure Act

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, "Kiragu (Suing as the Administrator of the Estate of the Late Kathina Wathimu alias Kathina Thirimu) v Gatumu & 7 others (Miscellaneous Application E032 of 2025) [2026] KEELC 4798 (KLR)", Case Analysis (2026). Embu Magistrate's Court ELC Case No. E044 of 2023 (transfer application, Notice of Motion dated 08/10/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4798/eng@2026-07-23

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