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ELCPartially AllowedELC Case at Mombasa (suit filed 2014; application numbers dated 14th November 2024 and 18th November 2024)

Helmann v Mbogo & another (Environment & Land Case 60 of 2014) [2025] KEELC 3458 (KLR)

Environment and Land Court of Kenya
25 April 2025
12,250 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~49 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Mombasa transferred a decade-old Meru land dispute to Maua's magistrates' court, ruling cases belong where the property and parties are.

What this practically means

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Executive summary

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This is an omnibus ruling on two cross Notices of Motion in a land and matrimonial property dispute before the Environment and Land Court at Mombasa. The Defendants (Jacqueline Wawira Mbogo and Emily Karendi Mbogo) applied by Notice of Motion dated 14th November 2024 for transfer of the suit to Maua Chief Magistrates' Court or, alternatively, the Meru ELC, arguing the suit property Kiegoi/Kinyanka/1993 lies in Igembe South, Meru County, that neither party resides in Mombasa, that key elderly witnesses would face prohibitive travel, and that a locus in quo visit would be impractical from Mombasa. The Plaintiff, Walter Aloys Hellmann, opposed, asserting the court's unlimited original jurisdiction, the matrimonial character of the claim, and that virtual hearings could mitigate witness costs; he also applied by Notice of Motion dated 18th November 2024 to compel the Manager, Co-operative Bank Meru Branch to supply certified bank statements for account 0112024148400, which the Defendants opposed as a fishing expedition, unserved on the bank, and unsupported by evidence the records still exist. Holding that the suit property is in Meru County and applying the overriding objective, Sections 1A, 1B and 18 of the Civil Procedure Act and transfer principles from the authorities, the court allowed the transfer application entirely, ordered the Deputy Registrar ELC Mombasa to transfer the suit to Maua Chief Magistrates' Court, and mentioned before the Chief Magistrate, Maua on 29th May 2025. Because the court found its jurisdiction ousted pending transfer, it struck out the Plaintiff's bank statement application, granting liberty to file afresh in the correct forum. The Defendants were awarded costs of both applications. Ruling delivered by Hon. Justice L. L. Naikuni on 25th April 2025 at Mombasa.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Honourable Court can grant the orders of transfer of this suit to Maua Chief Magistrate Court or the Meru Environment and Land Court as sought in the Notice of Motion application dated 14th November, 2024 and whether this Honourable Court has the jurisdiction to hear and determine this suit to its conclusion.
  2. 2.Whether if (a) is in the affirmative, this Court has the jurisdiction to determine the Notice of Motion Application dated 18th November, 2024.
  3. 3.Who will bear the Costs of Notices of Motion applications dated 14th November, 2024 and 18th November, 2024.

Key legal issues

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01

Whether the Mombasa ELC should transfer the suit to Maua Chief Magistrates' Court or Meru ELC

Holding

The application for transfer was allowed; the suit property is in Meru County, near Maua, neither party resides in Mombasa, and the overriding objective favours transfer.

Reasoning

The court found the property located in Meru County, within a kilometre of Maua Chief Magistrates' Court, with no party resident in Mombasa. Considering Sections 1A, 1B and 18 of the Civil Procedure Act and the balance of convenience, expense of transporting elderly witnesses, and possible locus in quo visit, the court held transfer was in the interests of justice and cost-effectiveness.

p. 20
02

Whether the ELC retains jurisdiction to determine the Plaintiff's application for compelling production of bank statements

Holding

Once the court determined it lacked jurisdiction over the suit (which should be before the Chief Magistrate's Court or Meru ELC), it struck out the Plaintiff's production application.

Reasoning

Jurisdiction is primordial; without it a court cannot make one more step. Since the suit was held to belong in Maua Chief Magistrates' Court (or Meru ELC if value exceeds Kshs. 20,000,000), only the Chief Magistrate's Court could grant the orders sought. The application was struck out with liberty to file afresh in the correct forum.

p. 21
03

Who bears the costs of both applications

Holding

Costs follow the event under Section 27 of the Civil Procedure Act; the Defendants were awarded costs of both applications.

Reasoning

Costs are discretionary and ordinarily follow the event unless the court for good reason orders otherwise. Since the Defendants succeeded on their transfer application and the Plaintiff's application was struck out, the court exercised its discretion to award the Defendants the costs of both applications.

p. 22

Legal principles established

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  • A suit filed without jurisdiction is a nullity and cannot be remedied; the remedy is withdrawal and filing in a court seized of jurisdiction.
  • Where the suit property and the parties' convenience lie in another locality, and the suit value falls within a subordinate court's pecuniary jurisdiction, transfer for cost-effective and efficient disposal is warranted under the overriding objective.

Court orders

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  1. 1.The Notice of Motion application dated 14th November, 2024 be and is hereby found to have merit and the same is allowed entirely with costs.
  2. 2.The Notice of Motion application dated 18th November, 2024 be and is hereby struck out with costs for lack of jurisdiction.
  3. 3.An order for the Deputy Registrar ELC Mombasa to immediately cause the transfer of this suit pending trial before Maua Chief Magistrates' Court for its hearing, determination and subsequent disposal.
  4. 4.The matter to be mentioned before the Chief Magistrate, Maua on 29th May, 2025 for directions on how to dispose of this matter.
  5. 5.The Defendants shall have the costs of the Notices of Motion dated 14th November, 2024 and 18th November, 2024 to be paid by the Plaintiff.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010; Sections 4 and 13 of the Environment and Land Court Act, No. 19 of 2011; Sections 1A, 1B, 3A and 18 of the Civil Procedure Act, Cap. 21

Relief refused

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Plaintiff's application dated 18th November, 2024 seeking orders compelling the Manager, Co-operative Bank Meru Branch to supply certified bank statements for account number 0112024148400

Struck out for lack of jurisdiction once the suit was ordered transferred; the only court seized of the matter after transfer is the Chief Magistrate's Court

p. 21

Costs

The Defendants shall have the costs of the Notices of Motion dated 14th November, 2024 and 18th November, 2024 to be paid by the Plaintiff.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the end the Honourable Court finds in favour of the Defendants and finds the Notice of Motion application dated 14th November, 2024 merited and therefore allow the same entirely.
p. 20Transfer application allowed
I am left with no alternative but to strike out the Notice of Motion application dated 18th November, 2024 with costs to the Defendants. The Plaintiff is at liberty to file the same afresh in the correct forum.
p. 21Plaintiff's production application struck out
That this Honorable Court do and hereby issues an order for the Deputy Registrar ELC Mombasa to immediately cause the transfer of this suit pending trial before Maua Chief Magistrates' Court for its hearing, determination and subsequent disposal.
p. 22Final orders - transfer
That the Defendants shall have the costs of the Notices of Motion dated 14th November, 2024 and 18th November, 2024 to be paid by the Plaintifi.
p. 22Final orders - costs
Jurisdiction is everything. Without it, a court has no powers to make one more step.
p. 17Jurisdiction

Issues in the judgment

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minor

Internal inconsistency in statutory citation of the Matrimonial Property Act (an Act of 2014 described as commencing in 2016 but elsewhere cited as the Matrimonial Property Act, 2015)

minor

The court cites Section 13 of the Civil Procedure Act but the quoted provision on immovable property situate within different jurisdictions is in substance Section 13(1) on multiple properties; attribution appears confused with Section 12

minor

The court states it lacks jurisdiction over the suit yet exercises Section 18 transfer powers itself; the reasoning blurs territorial convenience with want of jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Helmann v Mbogo & another (Environment & Land Case 60 of 2014) [2025] KEELC 3458 (KLR)", Case Analysis (2025). ELC Case at Mombasa (suit filed 2014; application numbers dated 14th November 2024 and 18th November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3458/eng@2025-04-25

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