Omari & another v Mwatsolozi & 2 others (Miscellaneous Application E018 of 2025) [2026] KEELC 5261 (KLR)
The bottom line
#The Environment and Land Court at Kwale refused to transfer a land suit filed in the wrong court, ruling a case filed without territorial jurisdiction is a nullity that transfer cannot fix.
What this practically means
#Executive summary
#Key legal issues
#Territorial jurisdiction of the Chief Magistrate's Court at Kwale over Kwale CMCC ELC No. E041 of 2025
The Kwale court lacks territorial jurisdiction; the suit was instituted in flagrant contravention of the mandatory Section 12 of the Civil Procedure Act and is a nullity
Section 12 of the Civil Procedure Act, couching in mandatory terms, requires suits for determination of rights to immovable property to be filed where the property is situate. The suit property Kwale/Msambweni 'A'/96, the Respondents' residence and the cause of action all lie in Msambweni Sub-County, facts conceded by the Applicants themselves. The Applicants even concede inadvertent filing. Citing the Lillian S doctrine, jurisdiction is everything; a court without it must down its tools.
Whether the transfer application under Section 18 of the Civil Procedure Act is merited
Dismissed - a nullity cannot be transferred, and in any event the Applicants failed to make out a strong case for the exercise of discretion
Following Kagenyi v Musiramo, E.A. Assurance and Equity Bank, a suit filed in a court without jurisdiction is stillborn and transfer cannot cure the congenital defect. Even on discretion, the Applicants' conduct - withdrawing an earlier suit on a promise to refile at Msambweni on which the Respondents forwent costs, then refiling at Kwale - amounts to forum shopping with unclean hands, and their failure to file submissions despite directions showed abandonment of their own application.
Costs of the application
Costs awarded to the 1st and 2nd Respondents jointly and severally
Costs follow the event under Section 27(1) of the Civil Procedure Act. The Respondents successfully resisted the application and were subjected to needless multiplicity of proceedings at considerable financial strain, having been dragged before the Court to oppose an application that ought never to have been brought.
Legal principles established
#- A suit filed in a court without territorial jurisdiction is a nullity ab initio and cannot be cured by an order of transfer
- Suits relating to immovable property must be instituted in the court within the local limits of whose jurisdiction the property is situate, Section 12 being mandatory
- Territorial jurisdiction cannot be treated as a procedural technicality to be discarded under Article 159(2)(d)
Court orders
#- 1.The Notice of Motion application dated 19th September, 2025 by the 1st and 2nd Applicants be and is hereby dismissed
- 2.The dismissal shall not be construed as a determination of the merits of the parties' competing claims over Title Number Kwale/Msambweni 'A'/96, nor as a bar to instituting a fresh and properly constituted suit before the court seized of the requisite territorial jurisdiction, subject to the applicable law
- 3.The Preliminary Objection dated 8th September, 2025 pending in Kwale CMCC ELC No. E041 of 2025 shall be disposed of by the trial Court in accordance with the law
- 4.The costs of the application are awarded to the 1st and 2nd Respondents, to be borne by the Applicants jointly and severally
- 5.The file be and is hereby ordered closed
- Jurisdiction invoked
- Article 162(2)(b) and Article 165(6) of the Constitution of Kenya, 2010; Section 13 of the Environment and Land Court Act, No. 19 of 2011; Sections 1A, 1B, 3A and 18 of the Civil Procedure Act, Cap. 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omari & another v Mwatsolozi & 2 others (Miscellaneous Application E018 of 2025) [2026] KEELC 5261 (KLR)", Case Analysis (2026). ELCLMISC E018 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5261/eng@2026-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.