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ELCDismissedNotice of Motion dated 10/04/2025 seeking transfer of Magistrate's Court Environment and Land Case No. 6 of 2020, Githunguri

Njoroge v Njoroge & 4 others (Environment and Land Miscellaneous Case E033 of 2025) [2026] KEELC 2412 (KLR)

Environment and Land Court
28 April 2026
MOMogeni
888 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cannot transfer a lawsuit filed in a court without jurisdiction; the case collapses and must be filed afresh, with costs.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Thika (Mogeni J) determined a Notice of Motion dated 10/04/2025 brought by the Plaintiff/Applicant under Order 51 of the Civil Procedure Rules and Sections 18(b) and 3A of the Civil Procedure Act, seeking transfer of Magistrate's Court Environment and Land Case No. 6 of 2020 from the Principal Magistrate's Court at Githunguri to the Environment and Land Court at Thika. The Applicant contended that when the suit was filed in 2020 the parties believed the 2.7-acre parcel in Nyaga Location, Githunguri fell within the magistrate's pecuniary jurisdiction (capped at Kshs 10 million), but consultations revealed the land's market value exceeded Kshs 20 million, at roughly Kshs 12 million per acre, placing it beyond the magistrate's jurisdiction. Only the 1st Respondent opposed via Grounds of Opposition. The Court framed a single issue: whether a suit filed in a court lacking pecuniary jurisdiction is a nullity that cannot be saved by a transfer order under Section 18. Following the Supreme Court's decision in Samuel Kamau Macharia, the Court held that jurisdiction is a threshold matter; proceedings in a court lacking pecuniary jurisdiction are coram non judice. Section 18 presupposes a competent suit, and an incompetent originating filing cannot be transferred to sanitize it. The Court upheld the Grounds of Opposition, dismissed the application, struck out the suit in Case No. 6 of 2020 with liberty to file afresh in a competent court, and awarded costs to the 1st Defendant.

Questions the Court framed

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

  1. 1.Whether a suit filed in a Court lacking pecuniary jurisdiction is a nullity that cannot be saved by a transfer order under Section 18 of the Civil Procedure Act

Key legal issues

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01

Whether a suit filed in a court lacking pecuniary jurisdiction is a nullity incapable of being saved by a transfer order under Section 18 of the Civil Procedure Act

Holding

Yes - the suit is a nullity (coram non judice) and cannot be transferred; the application was dismissed and the suit struck out with liberty to file afresh

Reasoning

Applying the Supreme Court's decision in Samuel Kamau Macharia, jurisdiction is a threshold matter. A magistrate's court pecuniarily capped cannot entertain a claim over land valued above Kshs 20 million. Section 18 presupposes a competent suit in the transferring court; since the Githunguri court was incompetent from filing, no transfer power exists. The proper course is withdrawal and fresh filing in a competent court.

p. 3

Legal principles established

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  • Jurisdiction is a threshold matter; where a court lacks pecuniary jurisdiction, the proceedings are coram non judice
  • Section 18 of the Civil Procedure Act presupposes a competent suit; an incompetent filing cannot be transferred to a competent court

Court orders

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  1. 1.The Court finds that the Principal Magistrate's Court at Githunguri lacked the pecuniary jurisdiction to entertain a claim involving land valued at over Kshs 20 Million; the Grounds of Opposition are upheld
  2. 2.The Notice of Motion dated 10/04/2025 is dismissed as the Court cannot transfer a suit inherently defective for want of jurisdiction
  3. 3.The suit in Magistrate Court Case No. 6 of 2020 is struck out, allowing the Plaintiff liberty to file a fresh suit in a Court of competent jurisdiction
  4. 4.The costs of the application are awarded to the 1st Defendant

The bench

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

MO
majority

Wrote the judgment

Jurisdiction invoked
Section 18(b) and Section 3A of the Civil Procedure Act; Order 51 of the Civil Procedure Rules

Relief refused

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Transfer of Magistrate's Court Environment and Land Case No. 6 of 2020 from Githunguri to the Environment and Land Court, Thika

The originating court lacked pecuniary jurisdiction, rendering the suit a nullity which cannot be sanitized by transfer

p. 3

Costs

The costs of this application are awarded to the 1st Defendant.

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.

if a Court lacks pecuniary jurisdiction, then the proceedings are coram non judice considered not to be before a Judge.
p. 2Effect of want of pecuniary jurisdiction
The Notice of Motion dated 10/04/2025 is hereby dismissed on the basis that this Court cannot transfer a suit that is inherently defective for want of jurisdiction.
p. 3Final orders - dismissal of transfer application
The suit in Magistrate Court Case No. 6 of 2020 is hereby struck out allowing the Plaintifi the liberty to file a fresh suit in the Court of competent jurisdiction.
p. 3Final orders - striking out with liberty to file afresh
The costs of this application are awarded to the 1st Defendant.
p. 3Costs

Issues in the judgment

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minor

Judgment internal date inconsistency: Grounds of Opposition dated 17/02/2026, yet the application is dated 10/04/2025, and the ruling delivered 28 April 2026 - chronology of the 2025 filing versus 2026 response dates appears unusual but is as printed

minor

Recurring typographical error 'Plaintifi' for 'Plaintiff' in the judgment text

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, "Njoroge v Njoroge & 4 others (Environment and Land Miscellaneous Case E033 of 2025) [2026] KEELC 2412 (KLR)", Case Analysis (2026). Notice of Motion dated 10/04/2025 seeking transfer of Magistrate's Court Environment and Land Case No. 6 of 2020, Githunguri. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2412/eng@2026-04-28

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