Ruirie v Salim & another (Civil Appeal E206 of 2024) [2026] KEHC 4262 (KLR) (19 February 2026) (Ruling) Neutral citation: [2026] KEHC 4262 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MOMBASA CIVIL APPEAL E206 OF 2024 F WANGARI, J FEBRUARY 19, 2026 BETWEEN PETERSON KARIUKI RUIRIE ............................................................ APPELLANT AND SWALEH ABDALLA SALIM ......................................................... 1ST RESPONDENT THADDEUS OUNDOH ............................................................... 2ND RESPONDENT RULING 1. The Appellant who was the Plaintiff filed the suit subject to this appeal in the Environment and Land court in Mombasa ELC No. 366 of 2017. On 05/02/2018, the Trial Judge in the Environment and Land Court, Justice A. Omollo transferred the matter to the Chief Magistrate’s court for trial and determination as it had jurisdiction to deal with the matter. 2. In the Magistrate’s court, the file was registered as Chief Magistrate ELC Case No. 2 of 2018. The matter proceeded for pre-trial and hearing before Hon. F. Kyambia, Senior Principal Magistrate. Upon hearing the parties, the court delivered its judgment dismissing the Plaintiff’s suit. 3. Dissatisfied with the judgment, the Plaintiff filed an appeal before this court. I wish to point out that in the Record of Appeal, Supplementary Record of Appeal and Further Supplementary Record of Appeal, the Appellant makes reference to the lower court matter as Mombasa CMCC No. 366 of 2017 while the correct case no. is CMELC No. 2 of 2018. 4. The appeal before this court is thus fatally defective, a non-starter, void and null ab initio for being filed at the wrong judicial forum instead of the Environment and Land Court, hence should be struck out with costs to the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4262/eng@2026-02-19 1
page 1 of 3
5. The court herein issued directions for parties to file their written submissions, but the court had not taken time to look at the contents of the pleadings filed, otherwise the appeal ought to have been stuck out in limine. 6. The Constitution of Kenya under Article 162 (2) (b) establishes the Environment and Land Court. It provides as follows; Systems of courts 162 (2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (b) 7. the environment and the use and occupation of, and title to, land. The jurisdiction of the court is mentioned under section 13 (1) and (2) of the Environment and Land Court Act, No. 19 of 2011 which provides as follows; Jurisdiction of the Court (1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes― (a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land. 8. The Plaintiff’s/ Appellant suit is in respect to the use and occupation of land. The jurisdiction therefore lies in the Environment and Land Court. 9. The issue of jurisdiction was settled in the case of “Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR where Justice Nyarangi, JA, as then he was held as follows: “ I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis. Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4262/eng@2026-02-19 2
page 2 of 3
“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given” 10. From the provisions of the law as stated herein above, the court that has jurisdiction over this matter is the Environment and Land Court. This court has got no jurisdiction even to determine the appeal. The court has got no option but to down its tools. 11. On costs, it is settled that the same follows the event. However, the court retains discretion whether to grant them or not. The 1st Respondent having not noted that the appeal is filed in the wrong court, it is hereby directed that each party is to bear its own costs. Determination 12. Having found as above, the following orders flow therefrom: a. The appeal is hereby struck out. b. Each party to bear its own costs Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 19TH DAY OF FEBRUARY, 2026. …………………. HON. F. WANGARI JUDGE OF THE HIGH COURT In the presence of: Mr. Maundu Advocate for the Appellant N/A by the Respondent Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4262/eng@2026-02-19 3
page 3 of 3