Gicheru v Kenya Houses Investments Limited & 2 others (Civil Appeal E469 of 2024) [2026] KEHC 1660 (KLR) (Civ) (9 February 2026) (Judgment) Neutral citation: [2026] KEHC 1660 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI LAW COURTS) CIVIL CIVIL APPEAL E469 OF 2024 WM MUSYOKA, J FEBRUARY 9, 2026 BETWEEN ANNE GATHONI GICHERU ................................................................ APPELLANT AND KENYA HOUSES INVESTMENTS LIMITED ............................ 1ST RESPONDENT CHRISTINE AKOTH SIKHOBA ................................................ 2ND RESPONDENT ERICK NAMACHANJA OMUKATARA ................................... 3RD RESPONDENT (Appeal from the ruling and order of Hon. Wendy Micheni, Chief Magistrate, CM, delivered on 28th March 2024, in Milimani CMCCCOM No. E132 of 2023) JUDGMENT 1. The suit, at the primary court, was by the appellant. It turned on breach by contract, and claimed Kshs. 3,100,000.00, with interest, being moneys paid on account of services that were to be delivered. A defence was filed, denying liability. A preliminary point of law was also raised, on jurisdiction, allegedly as the cause of action arose at Kajiado. 2. The preliminary objection was canvassed, by way of written submissions. A ruling was delivered, on 28th March 2024, striking out the suit for want of jurisdiction, on the basis that it was alleged that the land sought to be recovered was situated at Kajiado; the contract was executed at a location in the United States of America, USA, but was dated in Eldoret, and the defendants allegedly resided in Nairobi. 3. The appeal turns on that striking out order, on grounds that the trial court should have invoked inherent jurisdiction; the circumstances of the case were peculiar and unique; the fact that the contract https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1660/eng@2026-02-09 1
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was executed online, the defendants were based at Eldoret and the project was located at Kajiado, all which made Nairobi the most convenient place for filing the claim, among others. 4. The jurisdiction issue that arose had nothing to do with the substantive jurisdiction of the court, where the claim was filed. The claim was one that, substantially, was within the jurisdiction of the court where it was filed. It was a simple claim to receive money, arising out of a failed contract. The Chief Magistrate’s Court had substantive jurisdiction to determine that suit, whenever it sat, geographically. 5. The matter was turned more on territorial or geographical jurisdiction. The facts, relating to where the contract was consummated, were all over the place. The money was paid for a contract to be performed at Kajiado. The defendants were apparently based at Eldoret, it appeared as if the contract was executed at Eldoret, or online, as the appellant was based in the USA. There was also the issue of Nairobi, where the appellant appeared to have a residence. To the trial court, geographically, the suit could be filed at Kajiado, where the project was to be executed, or Eldoret, where the contract was drawn. It was found that not much was going for Nairobi, as there was nothing to show that the appellant had a residence there. 6. I do not think that a suit should be struck out merely because the court, where it was filed, lacked territorial jurisdiction. Substitutive justice would require that such a suit be transferred to the court with jurisdiction. The court, without territorial jurisdiction, ought to just down its tools, and leave it to the parties, to move the court with jurisdiction to order transfer. 7. The issue of striking out should arise only where the court, where the suit is filed, has no substantive jurisdiction. Even then, the higher courts, the Court of Appeal in particular, are confiicted on this. One view holds that such a suit ought to be struck out; the other holds that it ought to be transferred to the court with jurisdiction. The High Court, for example, has no jurisdiction over land, environment, employment and labour relations matters, but such matters, if filed there, are routinely transferred to the appropriate courts, to wit the Environment and Land Court and the Employment and Labour Relations Court, without the issue of striking out arising. 8. The legal environment changed fundamentally, after the promulgation of the current Constitution, in 2010. The focus now is on doing substantive justice, and eschewing rules of procedures that are likely to undermine justice delivery. Territorial jurisdiction is for administrative convenience, to avoid suits being filed all over the place, and to bring order on where filing ought to be done. It should not be used to drive parties from the judgment seat, if it is established that a court, where the suit is filed, is, territorially, not the place where the suit should have been filed. Such suit should be transferred to the proper place, rather than have it struck out. Striking out is punitive and drastic. Parties go to court to get justice, and striking out of a suit is not doing justice, particularly where the suit strays into the wrong court. Let such a suit be pointed in the direction of the correct court, by being transferred there. 9. I find merit in the appeal herein. I hereby allow it. The consequence shall be that the order, of the trial court, of 28th March 2024, is set aside, and substituted with the order reinstating that suit, Nairobi, CMCCCOM No. E132 of 2023, and a further order that that suit be transferred to the Kajiado Chief Magistrate’s Court, for hearing and disposal. Each party to bear own costs. Orders accordingly. DELIVERED, VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT BUSIA, ON THIS 9TH DAY OF FEBRUARY 2026. WM MUSYOKA JUDGE Mr. Arthur Etyang, Court Assistant, Busia. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1660/eng@2026-02-09 2
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Mr. Maurice Onyango, Court Assistant, Milimani, Nairobi. Advocates Ms. Migiro, instructed by PK Mureithi & Company, Advocates for the appellant. George Sonkule, Advocate for the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1660/eng@2026-02-09 3
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