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ELCAllowedKapsabet ELC Case (Notice of Motion dated 21st October 2025)

Tanui v Sitienei & another (Environment and Land Miscellaneous Application E030 of 2025) [2025] KEELC 7609 (KLR)

Environment and Land Court
4 November 2025
1,290 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled a land dispute filed in the wrong court should be transferred to the correct court, not thrown out entirely.

What this practically means

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Executive summary

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The applicant, Emily Cherotich Tanui, moved the Environment and Land Court at Kapsabet by Notice of Motion dated 21st October 2025 under sections 1A, 1B, 3, 3A and 15 of the Civil Procedure Act, seeking transfer of Kabiyet CMELC No. E006 of 2025 (a land suit over Nandi/Kokwet/1896 at Mosoriot) to the Chief Magistrate's Court at Kapsabet, a mention for directions within 30 days, and costs in the cause. The transfer became necessary after the Kabiyet Magistrate's Court allowed a preliminary objection on 16th October 2025 finding it lacked territorial jurisdiction. The 1st Respondent, appearing in person, did not oppose the application. The 2nd Respondent opposed through a replying affidavit, contending the Kabiyet suit was a nullity for want of jurisdiction and there was nothing to transfer, and that the court could not be used to regularise an incompetent suit. The court framed two issues: merit in the application and appropriate orders for the ends of justice. It applied sections 12 to 18 of the CPA, sections 7 and 9 of the Magistrates' Courts Act, and judicial notice of geographical boundaries under sections 59 and 60 of the Evidence Act. Relying on Republic v Karisa Chengo on the voiding effect of lack of jurisdiction, D.T Dobie v Muchina against summary dismissal, and James Kanyiita Nderitu on the fundamental right to be heard, the court held the suit discloses a cause of action and, given the land's location and the 2nd Respondent's residence at Chepterit nearer Kapsabet, transferred the suit to Kapsabet Chief Magistrate's Court with a mention within 30 days, costs in the cause.

Questions the Court framed

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

  1. 1.Whether there is merit in the application for transfer of Kabiyet CMELC No. E006 of 2025 to the Chief Magistrate's Court at Kapsabet
  2. 2.What orders are appropriate for the ends of justice

Key legal issues

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01

Whether the suit should be transferred from Kabiyet Magistrate's Court to Kapsabet Chief Magistrate's Court

Holding

The application was allowed; the suit land lies within Kapsabet's jurisdiction and the 2nd Respondent resides at Chepterit, closer to Kapsabet, so transfer serves the ends of justice and access to justice.

Reasoning

The court considered sections 12 to 18 of the CPA on place of suing and transfer, sections 7 and 9 of the Magistrates' Courts Act on civil and land jurisdiction, and took judicial notice of geographical boundaries under sections 59 and 60 of the Evidence Act. Given the location of Nandi/Kokwet/1896 at Mosoriot and the 2nd Respondent's residence at Chepterit, Kapsabet was the more convenient forum in the spirit of Article 48 access to justice.

p. 3
02

Whether the suit filed at Kabiyet was a nullity incapable of transfer

Holding

The suit discloses a reasonable cause of action and is not hopeless or weak; it should not be struck out but transferred.

Reasoning

The 2nd Respondent argued the suit was incompetent and a nullity since Kabiyet lacked territorial jurisdiction, so nothing could be transferred. The court, subscribing to D.T Dobie v Muchina and Order 6 Rule 13 of the Civil Procedure Rules, held that no suit should be summarily dismissed unless plainly hopeless and incurable by amendment, and found the Kabiyet suit discloses a cause of action.

p. 3

Legal principles established

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  • Lack of jurisdiction renders a court's proceedings void
  • No suit ought to be summarily dismissed unless it is plainly hopeless and beyond redemption by amendment
  • The right to be heard is fundamental and permeates the entire justice system

Court orders

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  1. 1.Kabiyet CMELC No. E006 of 2025, Emily Cherotich Sitienei v Joseph Kiprono Sitienei and Benjamin Kiptatus Kemboi transferred to the Chief Magistrate's Court at Kapsabet for hearing and final determination
  2. 2.Upon transfer, the matter to be mentioned before the Chief Magistrate's Court at Kapsabet before the lapse of 30 days for purposes of directions
  3. 3.Costs to be in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 15 of the Civil Procedure Act (Cap 21); Article 48, 50(1) and 25(c) of the Constitution of Kenya 2010

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.

Wherefore, the application dated 21st October 2025 is hereby allowed in terms of prayers 2, 3 and 4 therein as set out in paragraph 1 (b) (c) and (d) hereinabove.
p. 3disposition - transfer application allowed
It is so ordered.
p. 3final orders
Plainly, the suit pending at Kabiyet Magistrate’s Court discloses a cause of action and it is neither hopeless nor weak to be struck out or dismissed.
p. 3suit not amenable to striking out
due to the location of the suit land and that the 2nd Respondent resides at Chepterit which is closer to Kapsabet than Kabiyet, the suit shall be heard and determined before Kapsabet Chief Magistrates’ Court
p. 3venue and convenience of forum

Issues in the judgment

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minor

Internal date inconsistency: the ruling of the Kabiyet Magistrate's Court is dated 16th October 2025 elsewhere but counsel is recorded as referring to a ruling delivered on 16th October 2015

minor

Inconsistent rendering of the 2nd Respondent's name: 'Benjamin Kiptatus Kemboi' in prayer (b) versus 'Benjamin Kiptarus Kemboi' in the grounds and title

minor

Statutory citation anomaly: the Environment and Land Court Act 2015 is cited as '2015 (2011)'

minor

Paragraph 13 states the suit land is within the jurisdiction of 'both Kabiyet' although the preliminary objection had upheld lack of Kabiyet territorial jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Tanui v Sitienei & another (Environment and Land Miscellaneous Application E030 of 2025) [2025] KEELC 7609 (KLR)", Case Analysis (2025). Kapsabet ELC Case (Notice of Motion dated 21st October 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7609/eng@2025-11-04

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