Gathogo v Mwangi (Environment and Land Miscellaneous Case E006 of 2026) (Environment and Land) [2026] KEELC 3874 (KLR)
The bottom line
#The ELC dismissed a bid to move a commercial tenancy case to its court, confirming you cannot transfer a suit to a court that lacks jurisdiction over it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a suit can be transferred under Section 18 of the Civil Procedure Act on the basis of prospective, unapproved amendments
- 2.Whether the Environment and Land Court (ELC) has the subject-matter jurisdiction to hear and determine a dispute centred on commercial tenancy, wrongful eviction, and commercial tort damages
Key legal issues
#Whether a suit can be transferred under Section 18 of the Civil Procedure Act on the basis of prospective, unapproved amendments
No. Transfer is discretionary and conditional on the court from which transfer is sought having jurisdiction; jurisdiction is fixed at filing, so inflated claims or tactical amendments cannot retroactively divest the subordinate court of jurisdiction nor create a competent suit for transfer
Relying on Albert Chaurembo Mumba (citing Kagenyi v Musiramo), the court held that a transfer order can only be made where the suit was originally brought in a court with jurisdiction. Parties cannot consent to confer jurisdiction where law does not provide it. If the subordinate court lacks jurisdiction as alleged, there is no legally competent suit capable of transfer; if competently instituted, subsequent inflated claims cannot divest the magistrates' court of jurisdiction.
Whether the ELC has subject-matter jurisdiction over a commercial tenancy dispute, wrongful eviction and commercial tort damages
No. The true gravamen is a commercial tenancy dispute coupled with a heavy tortious claim for special damages; the ELC lacks first-instance subject-matter jurisdiction over such a case
Guided by Republic v Chengo, specialized courts' jurisdictions are limited to matters in their establishing statutes. Section 13 of the ELC Act covers land-related disputes, but controlled commercial tenancies vest exclusively in the BPRT under Cap 301. The remedies sought (damages for destroyed stock, nullity of BPRT orders) are rooted in tenancy and tort law, not land ownership or title. Declarations of nullity against a tribunal belong to the High Court's supervisory jurisdiction, not the ELC as a court of first instance.
Legal principles established
#- An order for transfer of a suit can only be made where the suit was originally brought before a court with jurisdiction; jurisdiction is determined at the time of filing and cannot be conferred by consent or subsequent amendments
- The ELC does not possess residual general jurisdiction over ordinary commercial or tort claims merely because the subject matter rests on land; a commercial tenancy/tort dispute falls outside its first-instance subject-matter jurisdiction
- General declarations of nullity against tribunal decisions reside in the High Court's supervisory jurisdiction and cannot be mounted as a collateral attack in an ordinary civil suit to bypass statutory appellate timelines
- Jurisdiction is fundamental; without it a court cannot take any further step
Court orders
#- 1.The Applicant's Notice of Motion dated 4th March 2026 is dismissed in its entirety
- 2.The main suit, Naivasha Chief Magistrate's Court ELC No. 64 of 2019, shall proceed to its logical conclusion before the subordinate court in Naivasha
- 3.The costs of the application are awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 18(1)(b) of the Civil Procedure Act; Article 162(2) of the Constitution; Environment and Land Court Act
Relief refused
#Withdrawal and transfer of Naivasha CMCC ELC No. 64 of 2019 to the Environment and Land Court
The ELC lacks subject-matter jurisdiction over the true gravamen of the suit, being a commercial tenancy dispute coupled with tortious claims; a transfer can only be made where the suit was brought before a court with jurisdiction
Costs
The costs of this application are awarded to the Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Applicant's Notice of Motion dated 4th March 2026 is hereby dismissed in its entirety.
The main suit, Naivasha Chief Magistrate's Court ELC No. 64 of 2019, shall proceed to its logical conclusion before the subordinate court in Naivasha.
The costs of this application are awarded to the Respondent.
Jurisdiction is everything. Without it, a court has no power to see one more step. Where a court has no jurisdiction, it will down tools.
It is therefore clear that if the subordinate court lacks jurisdiction as alleged, there is no legally competent suit that can be transferred.
Issues in the judgment
#The judgment states two different dates for the eviction - 17th February 2024 and 17th May 2024 - without reconciling them
The Respondent is inconsistently referred to as 'the Appellant' in one passage when the matter is a first-instance application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathogo v Mwangi (Environment and Land Miscellaneous Case E006 of 2026) (Environment and Land) [2026] KEELC 3874 (KLR)", Case Analysis (2026). Naivasha ELC Case (Notice of Motion dated 4th March 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3874/eng@2026-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.