PTM v BW (Environment and Land Case E138 of 2024) [2026] KEMC 37 (KLR)

Environment and Land Court (subordinate court, Nakuru)

15 January 2026

ANALOYCE PETER NDEGE

667 words in judgment

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The bottom line

A Nakuru court struck out an entire divorce and property case because it was filed in the wrong court, and made the plaintiff pay full costs first.

What this practically means

Executive summary

By a plaint dated 20/06/2024 the plaintiff sought injunctions restraining the defendant and the District Land Registrar from transferring parcels Kiambogo/Kiambogo Block 2/11520 and Miti Mingi/Mbaruk Block 1/322 (Ndege) pending determination, and dissolution of the Kikuyu customary marriage between the parties. The defendant, through Mwango Mandere Advocates, filed a defence and a preliminary objection invoking Sections 7 and 17 of the Matrimonial Properties Act Cap 152, contending that the court lacked jurisdiction because the properties were matrimonial property. By a ruling of 05/11/2024 the court agreed that the property prayers belonged in the High Court but allowed prayer 3 (dissolution of the customary marriage) to proceed, erroneously treating it as fileable in the ELC. At the hearing on 28/10/2025 the defendant and her advocate were absent despite service; the plaintiff proceeded ex parte, adopted his witness statement, produced exhibits PExh. 1-6 and filed written submissions. While preparing the judgment the magistrate realised that an Environment and Land Court is not a family court and cannot grant divorce orders; the preliminary objection should have been allowed in its entirety. Exercising the principle that a court without jurisdiction must down its tools, the court struck out the entire suit, including the surviving prayer 3, with liberty to file in an appropriate forum, and extended the 2/3 costs awarded on the preliminary objection to full costs, payable before any fresh cause is filed. The certified copy of the ruling was to be supplied to counsel upon payment of the necessary costs.

Key legal issues

Jurisdiction of the Environment and Land Court over matrimonial property and divorce claims

Holding

The ELC lacks jurisdiction over the entire suit: prayers 1 and 2 over matrimonial properties belong in the High Court, and prayer 3 (dissolution of customary marriage) belongs in an appropriate subordinate court, not an ELC cause.

Reasoning

The defendant's preliminary objection invoked Sections 7 and 17 of the Matrimonial Properties Act. On 05/11/2024 the court had allowed only prayer 3 to proceed, holding the property prayers belonged in the High Court. On preparing the judgment, the court recognised that an ELC, not being a family court, could not grant divorce orders. It concluded it should have allowed the preliminary objection in its entirety, struck out the whole suit, and directed the parties to the correct fora.

p. 2

Consequence of lack of jurisdiction on a suit partly heard ex parte

Holding

Where jurisdiction is absent, the court must strike out the entire suit even after the plaintiff has partially proceeded ex parte and evidence has been taken.

Reasoning

The plaintiff had proceeded ex parte on 28/10/2025 after proper service, adopting his witness statement and exhibits. However, jurisdiction is a threshold matter that cannot be conferred by acquiescence or partial hearing. Having realised its lack of jurisdiction, the magistrate held there was no option but to down tools and strike out the entire suit, including the surviving prayer, with liberty to file in an appropriate forum.

p. 2

Legal principles established

An Environment and Land Court has no jurisdiction to hear and determine matrimonial disputes, including dissolution of customary marriage.
A court lacking jurisdiction must down its tools and cannot make orders in the cause.

Court orders

1.The entire suit, including the remaining prayer number 3, is struck out with liberty to file in an appropriate forum
2.The 2/3 costs awarded in the preliminary objection are extended to full costs
3.The costs must be paid in full before a fresh cause is filed in an appropriate forum
4.A certified copy of the ruling to be supplied to counsel upon payment of necessary costs

Authorities

Legislation

Matrimonial Properties Act Cap 152 Laws of KenyaSections 7 and 17

Jurisdiction invoked: Sections 7 and 17 of the Matrimonial Properties Act Cap 152 Laws of Kenya (jurisdiction raised by the defendant's preliminary objection)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "PTM v BW (Environment and Land Case E138 of 2024) [2026] KEMC 37 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/37/eng@2026-01-15

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