Njue v Safaricom PLC (Formerly Safaricom Limited) (Environment and Land Miscellaneous Case E014 of 2026) [2026] KEELC 5384 (KLR)

same be deemed as duly filed and served upon payment of the requisite court fees. 4. 2. The costs of this application be provided for. The application is premised on the grounds on its face. It is further supported by the affidavit of the applicant sworn on even date. He deposed that MCELC/E273/2022 was instituted vide the plaint dated 19th July 2022, seeking removal of the respondent’s base transceiver station from his plots nos. 237A and 234A in Mathare north, and payment of rent for unlawful occupation since August 2012. 3. The applicant deposed that he acquired the said plots on 2nd October 2019 from the previous owners, Eliud Mbiyu Muiruri and Sammuel Munene, vide sale agreements and assignments of rights, whereby all rights, title, interests, and causes of action (including claims for trespass from August 2012) were assigned to him. Upon further review and obtaining a rental valuation report, the applicant deposed that he has ascertained that the reasonable monthly rental value for the plots, based on market rates for similar land used for telecommunications infrastructure in Mathare north, is Kshs.200,000/- per plot Kshs.400,000/- per month). 2|Page RULING ELCLMISC NO. E014 OF 2026 DELIVERED VIRTUALLY ON 3RD SEPTEMBER, 2026. (totaling

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4. The applicant further deposed that the accrued mesne profits from August 2012 to 30th December, 2025 amount to approximately Kshs.64,400,000/- with ongoing accruals. He annexed a copy of the said rental valuation report and further deposed that the subject matter of the suit pertains to land disputes, including trespass, unlawful occupation, and remedies affecting title and use of land, which fall exclusively within the jurisdiction of this court under Article 162(2)(b) of the Constitution and Sections 4 and 13 of the Environment and Land Court Act. That for this reason, the chief magistrate’s court lacks jurisdiction over such matters, particularly where, as here, the pecuniary value exceeds Kshs.20,000,000/-. 5. The applicant deposed that the suit was filed in the magistrate’s court in 2022, during which time the unquantified claim was within jurisdiction, but the accrual of mesne profits has now exceeded the limit, necessitating transfer under Section 18 of the Civil Procedure Act to cure the jurisdictional defect. Pertaining to the proposed amendments, as per the draft amended plaint annexed to the application, the applicant deposed that the amendments are necessary to reflect accurate 3|Page RULING ELCLMISC NO. E014 OF 2026 DELIVERED VIRTUALLY ON 3RD SEPTEMBER, 2026.

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particulars, update the respondent’s corporate name, incorporate the assignments of rights, quantify the mesne profits claim, and add appropriate prayers. That these amendments will not alter the nature of the suit but will ensure all issues are properly before this court. 6. The applicant deposed that no prejudice will be suffered by the respondent as the amendments and transfer will promote fairness and efficiency. 7. The respondent filed grounds of opposition dated 9th April, 2026 opposing the instant application on the following grounds:1. The application is misconceived, bad in law and an abuse of the court process as the applicant has failed to demonstrate sufficient cause to warrant transfer of the suit under Section 18 of the Civil Procedure Act. 2. The suit before the chief magistrate’s court was competently jurisdiction instituted of that court within the pecuniary at time of the filing. Jurisdiction is determined at the time of institution of a suit and cannot be conferred, ousted or altered by subsequent amendments, revaluation or accrual of claims. 3. The applicant is improperly seeking to inflate and restructure the claim through a proposed amendment, in 4|Page order to artificially exceed the pecuniary RULING ELCLMISC NO. E014 OF 2026 DELIVERED VIRTUALLY ON 3RD SEPTEMBER, 2026.

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jurisdiction of the magistrate’s court and justify transfer. 4. The magistrate’s court has jurisdiction to hear and determine land matters within its pecuniary limits and the present suit properly falls within that jurisdiction. 5. The application improperly seeks to invoke Section 18 of the Civil Procedure Act to cure an alleged jurisdictional defect, which is not permissible in law. 6. The application has been brought after inordinate delay and is an afterthought intended to forum shop and defeat the expeditious disposal of the suit. 7. That it is in the interest of justice and efficient case management that the application be dismissed with costs. 8. The application was canvassed through written submissions. The applicant filed his written submissions dated 18 th March, 2026. The respondent did not file written submissions. I have considered the application and the replies thereof as well as the submissions. The issue for determination is whether this court has jurisdiction to transfer the suit from the magistrates’ court to this court. 5|Page RULING ELCLMISC NO. E014 OF 2026 DELIVERED VIRTUALLY ON 3RD SEPTEMBER, 2026.

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9. The applicant seeks to transfer suit no. MCELC/E273/2022 from the magistrates’ court for hearing and determination in this court due to want of pecuniary jurisdiction at the subordinate court. The applicant contends that the mesne profits since the year 2012 that he claims from the respondent have now accumulated to approximately Kshs.64,400,000/- with ongoing accruals, which is over 20,000,000/- capitation on the magistrates’ court jurisdiction. At the heart of this matter is the issue of jurisdiction. The magistrates’ court has the requisite jurisdiction under Section 26(3) of the Environment and Land Court Act, to hear and determine environment and land disputes as stated hereunder:“The Chief Justice may, by notice in the gazette, appoint certain magistrates to preside over cases involving environment and land matters of any area of the country.” 10. From the plaint filed in the magistrate’s court dated 19 th July 2022, it appeared that the subordinate court had the requisite jurisdiction to handle the matter at the time of filing the suit, where the claim was not broken down into monetary value, and the plaintiff, who is the applicant herein, sought the following orders:- 6|Page RULING ELCLMISC NO. E014 OF 2026 DELIVERED VIRTUALLY ON 3RD SEPTEMBER, 2026.

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a) That the Base Transceiver Station elected by the Defendants on plots number 237A and 234A be removed forthwith and the (OCS) Ruaraka Police Station on the area where the plots are located ensures compliance with the orders. b) The Defendant be ordered to pay the Plaintiff rent from when the Transceiver Station we illegally elected to the Plaintiff's plots until the hearing and determination of this suit. c) Costs of the site and interest at 25% and any other relief that the Court may deem fit to grant. 11. The applicant’s claim is that if the suit proceeds as it is, with the magistrate’s court lacking in pecuniary jurisdiction, it will lead to nullity of proceedings. However, it is trite law that jurisdiction must be present when a suit is filed. The Court of Appeal in Phoenix of EA Company Limited v Thiga T/A Newspaper Service (Civil Appeal 244 of 2010) [2019] KECA 767 (KLR) succinctly put it that:“...Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a compliant one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the 7|Page RULING ELCLMISC NO. E014 OF 2026 DELIVERED VIRTUALLY ON 3RD SEPTEMBER, 2026.

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court cannot confer jurisdiction to itself. The subordinate court could not therefore entertain the suit and allow only that part of the claim that was within its pecuniary jurisdiction.” 12. If the applicant finds his claim in the magistrate’s court to be without jurisdiction, this court cannot remedy the same. It is upon the applicant to withdraw his claim filed in the magistrate’s court and move the court with the requisite jurisdiction accordingly. This court has no jurisdiction to order the transfer of a suit where the same was assumed to be lacking after the filing had been done and upon consideration of amendment to include mesne profits as it is in this case. 13. From the above, I find no merit in the notice of motion dated 29 th December, 2025. It is hereby dismissed, with no order as to costs. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 3RD DAY OF SEPTEMBER, 2026. HON. MBOGO C.G. JUDGE 03/09/2026. 8|Page RULING ELCLMISC NO. E014 OF 2026 DELIVERED VIRTUALLY ON 3RD SEPTEMBER, 2026.

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In the presence of:Mr. Benson Agunga – Court assistant No appearance for the Applicant No appearance for the Respondent 9|Page RULING ELCLMISC NO. E014 OF 2026 DELIVERED VIRTUALLY ON 3RD SEPTEMBER, 2026.

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