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ELCDismissedNot stated in the judgment

Makokha v Ambululi (Environment and Land Miscellaneous Case E049 of 2025) [2026] KEELC 3907 (KLR)

Environment and Land Court
17 June 2026
ANA. NYUKURI
556 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that a suit already struck out by a magistrates' court cannot be transferred to the ELC because nothing remains to transfer.

What this practically means

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Executive summary

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The applicant moved the Environment and Land Court at Kakamega by Notice of Motion dated 9th July 2025 seeking transfer of the court file in Butali MC L&E Case No. 5 of 2021 (O.S) to the ELC for full hearing and determination, plus costs. The application was supported by an affidavit sworn by the applicant's advocate, grounded on the position that the suit was a claim for adverse possession and that the Court of Appeal had in 2024 held that magistrates' courts lack jurisdiction over adverse possession claims; the trial court had accordingly found it had no jurisdiction. The respondent opposed via grounds of opposition dated 2nd December 2025, arguing the suit had already been struck out on 11th February 2025 for want of jurisdiction and that a suit filed in a court without jurisdiction is a nullity which cannot be transferred. The court framed a single issue: whether there was justification for transferring the suit. Relying on section 18(1)(b)(i) of the Civil Procedure Act, the court confirmed its power to transfer suits from magistrates' courts, but found, on the applicant's own uncontroverted deposition, that the lower court had struck out the suit on 11th February 2025 for want of jurisdiction. The suit was therefore determined, and no suit existed capable of transfer. The application was dismissed with costs to the respondent.

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 justification for grant of an order transferring Butali MC L&E No. 5 of 2021 (O.S) to this court for hearing and determination

Key legal issues

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01

Whether the court can transfer a suit that has been struck out by the lower court for want of jurisdiction

Holding

No; once the lower court struck out the suit, it was determined and there was no pending suit capable of being transferred

Reasoning

The court accepted the applicant's own deposition that on 11th February 2025 the trial court held it lacked jurisdiction, and the uncontroverted respondent's assertion that the suit was struck out on that date. A struck-out suit is a determined suit, leaving nothing to transfer. The application for transfer under section 18(1)(b)(i) of the Civil Procedure Act therefore lacked merit and was dismissed with costs.

p. 2

Legal principles established

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  • A suit struck out by a subordinate court for want of jurisdiction is determined and cannot be transferred to the High Court/ELC under section 18 of the Civil Procedure Act

Court orders

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  1. 1.The application dated 9th July 2025 is dismissed with costs to the respondent

The bench

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

AN
majority

Wrote the judgment

Jurisdiction invoked
Section 18(1)(b)(i) of the Civil Procedure Act

Relief refused

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Order to transfer Butali MC L&E No. 5 of 2021 (O.S) to the Environment and Land Court for hearing and determination

The suit had already been struck out by the lower court for want of jurisdiction and was therefore determined; no suit capable of transfer existed

p. 2

Costs

Costs of the application to the respondent

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.

Under section 18 (1) (b) ( i ) of the Civil Procedure Act, this court has jurisdiction either on its own motion or on application by the parties, to transfer a suit from a Magistrates court to this court for hearing and determination.
p. 2Statutory basis for transfer of suits
I am therefore convinced that Butali MC L&E No. E005 OF 2021 was struck out by the lower court for want of jurisdiction. That means that the said suit was determined, and therefore, there is no suit in that regard capable of being transferred to this court.
p. 2Effect of striking out for want of jurisdiction
In the premises, I find and hold that the application dated 9th July 2025 lacks merit and the same is hereby dismissed with costs to the respondent.
p. 2Final orders

Issues in the judgment

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minor

Date discrepancy: application notice of motion dated 9th July 2025 with supporting affidavit sworn 7th July 2025, i.e. affidavit predates the application; also respondent filed grounds of opposition dated 2nd December 2025 on a 2025 motion but judgment delivered 17th June 2026, and respondent's submissions share the same date as the grounds of opposition

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, "Makokha v Ambululi (Environment and Land Miscellaneous Case E049 of 2025) [2026] KEELC 3907 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3907/eng@2026-06-17

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