Credit Bank Limited v Kangethe & 2 others (Environment and Land Case 297 of 2018) [2026] KEELC 5228 (KLR)

iii. THAT the suit is incompetent, bad in law, an abuse of the court process and the suit ought to be tried in the right forum 2. The preliminary objection was canvassed through written submissions. The 1st, 2nd, and 3rd Defendants filed their written submissions dated 11th March 2026 reiterating the contents in the Notice of preliminary objection that the suit was now purely commercial to be adjudicated by the high court and further relied on the case of case of Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [2017] KECA 79 (KLR), 3. The Plaintiff filed submissions dated 21st May 2026 where they admitted to the contents of the Notice of preliminary objection. The only point of departure was that the suit should not be dismissed but transferred to the high court. 4. The 1st and 2nd Respondents further filed supplementary submissions. They submitted that the suit should be dismissed in its entirety and not transferred to the high court on the basis that the Plaintiff prior to the amendments had requested this court for time to think on the proper course of action in regard to its suit and should at that time have sought to transfer the matter to the high court as it was aware of the consequences of the said amendments ELC 297 2018 R 2

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Analysis and determination 5. Being that the notice of preliminary objection raises a jurisdictional issue of which issue is a matter of law and not fact It goes without saying that without the requisite jurisdiction a court of law down its tools meaning that the objection, if successful, is capable of finally disposing the whole matter. The objection, therefore, attains the threshold of a pure preliminary point of law as in Mukisa Biscuit Manufacturing Co. Ltd. Vs West End Distributors Ltd (1969) EA 696 6. The Notice of preliminary objection has not been disputed on the issue of jurisdiction, the only dispute is on whether the suit should be dismissed or transferred to the relevant court being the high court. From jurisprudence, it is trite law that where a suit is filed in a court that does not have jurisdiction, that suit is a nullity and there can never be anything to transfer. This position was stated in the Court of Appeal decision of Equity Bank Limited Vs Bruce Mutie Mutuku t/a Diani Tours & Travel [2016] eKLR, which pronounced itself on this principle in the following manner: “In numerous decided cases, courts, including this court have held that it would be illegal for the High Court in exercise of its powers under Section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction ELC 297 2018 R 3

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and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred Jurisdiction is a weighty fundamental matter and to allow court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign. It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks, parties cannot even seek refuge under the “O2” principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the situation. In the same way, a court of law should not through what can be termed as judicial craftsmanship sanctify an otherwise incompetent suit through a transfer.” 7. The Supreme Court underscored the foregoing in Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions) Vs Munyao & 148 others (Suing on their own behalf ELC 297 2018 and on behalf of R the Plaintiffs and other 4

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members/beneficiaries of the Kenya Ports Authority Pensions Scheme))[2019] KESC 83 (KLR) held as follows ‘However, as it was well elucidated in the case of Kagenyi v Musiramo & Another (1968) EALR 43,an order for transfer of a suit from one court to another cannot be made unless the suit has been brought, in the first instance, to a court which has jurisdiction to try it. It is therefore irrelevant as parties cannot consent to confer jurisdiction to a Court/tribunal where it is not provided by law.’’ 8. The upshot of the foregoing is that this court cannot transfer this matter to the high court. To allow its transfer in view of the foregoing decisions of the Supreme Court and the Court of Appeal which are binding on this Court would be misleading to the Applicant who seeks the said transfer. It is my view that the Applicant might as well consider filing a fresh case in a Court with jurisdiction. Final disposition i. From the above, this court finds merit in the notice of preliminary objection dated 12th February 2026 and it is hereby upheld. This court lacks jurisdiction to hear and determine the dispute between the parties, as it is a matter which ought to be placed before the High Court for determination. ELC 297 2018 R 5

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ii. Consequently, the amended plaint dated 2nd February 2026 is struck out with no order as to costs. It is so ordered. DATED, SIGNED and DELIVERED virtually at NAIROBI on this 6th day of August, 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Mr. Mwangi for Mubea for the Plaintiff Mr. Karaya for 1st and 2nd Defendants N/A Ms. Mwangi ELC 297 2018 for 3rd Defendant Court Assistant R 6

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