Mulesi (Suing as the personal representative of the Estate of Juma Shibende Oloo) v Masakhwe & another (Environment and Land Miscellaneous Case E051 of 2025) [2026] KEELC 938 (KLR)

matter was heard and the suit dismissed with costs to the respondents on 16th January 2025. That as the matter concerns land, the cause of action still survives. That the trial court lacked jurisdiction to determine his claim, and that he relied on “Nairobi ELC NO. E141 OF 2022”. He attached a copy of the Originating Summons and judgment in Mumias SPMCELC CASE NO. E044 OF 2024 (OS). 3. The application was opposed. The 2nd respondent filed a replying afidavit dated 27th September 2025, where he stated that the application was misplaced and frivolous. That the applicant’s counsel was served with Memorandum of appearance, respondents’ replying afidavits, witness statements and list of documents. That both parties requested to be heard by written submissions, which request was endorsed by court. That the matter was heard and determined and judgment entered and that the applicant failed to seek transfer before judgment. That the respondent has a series of cases over parcel No. E. Wanga/Lubinu/3135. 4. The respondent further stated that there was Case No. Mumias SPMCELC 16 OF 2019 where the court passed a judgment and decree that one Amina Nyarotso Shibende be evicted from the above parcel. That an appeal in respect thereof being Kakamega ELC CASE NO. E017 OF 2023, was dismissed. That the suit in the lower court is res judicata as the applicant’s claim was handled in the aforesaid suit and in Mumias SPMELC CASE NO. 44 OF 2024. He attached return of service and judgments in Mumias SPMELC NO. E044 OF 2024 and Kakamega ELC APPEAL NO. E017 OF 2023. 5. The court directed parties to file written submissions in support of their respective positions. On record are submissions filed by the respondent dated 2nd February 2026 which the court has duly considered. Analysis and determination. 6. The court has carefully considered the application, the replying afidavit and submissions. The only issue that arise for determination is whether the applicant deserves the orders sought. 7. This court has the jurisdiction and discretion to transfer a suit pending before a Magistrates court to this court for hearing and determination, as provided for in section 18 (1) (b) ( i ) of the Civil Procedure Act. However, in the instant case, the applicant sought to transfer Mumias SPMCELC Case No. E 044 of 2024 from the Magistrates court to this court, yet that matter has already been heard and determined on merit by that court and judgment delivered on 16th January 2025. 8. Therefore, since Mumias SPMCELC Case No. E 044 of 2024 (OS) was heard on merit to conclusion and a judgment delivered in respect thereof, there is nothing pending and no suit exists capable of being transferred. If the applicant is unhappy with the decision of the trial court, including his allegation that the said court had no jurisdiction to determine that case, the instant application is not the proper forum for him to express his dissatisfaction. 9. In the end, I find no merit in the application dated 4th June 2025 which I dismiss with costs to the respondents 10. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 11TH DAY OF FEBRUARY 2026 A. NYUKURI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/938/eng@2026-02-11 2

page 2 of 3

In the presence of No appearance for the applicant Mr. Luchivya for the respondent Court Assistant: Delphine https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/938/eng@2026-02-11 3

page 3 of 3