1.Coming up before me for determination is a Preliminary Objection dated 6th March 2023 in which the respondents herein have opposed the transfer of the instant Appeal that was instituted in the High Court sitting in Bomet, to the Environment and Land Court where it ought to have been instituted in the first instance, as doing so would be contrary to the provisions of Section 17 and 18 of the Civil Procedure Act. That the Appeal and application were fatally defective, misconceived, mischievous and an abuse of the court process and therefore unsustainable.
2.Despite there having been leave granted to the Appellants to file their response to the said Preliminary Objection, the orders were not complied with.
3.Directions had been taken that the Preliminary Objection be disposed of by written submissions for which only the Respondents complied and filed their written submissions to wit that pursuant to the Appellants having filed the instant Appeal, which rose out of Sotik Principal Magistrate court being ELC No. 1 of 2018, at the Bomet High Court, the High Court had subsequently ordered that the matter be transferred to this court for hearing and determination.
4.The Respondent relied on the celebrated case of Mukisa Biscuits Manufacturing Limited vs. West End Distributors (1969) EA 696 to submit that their Preliminary Objection was merited. That the dispute was a land dispute in which the High Court sitting in Bomet had no jurisdiction to entertain, and/or determine the matter, to issue interim orders of stay and to transfer the matter to the Environment and Land Court.
5.That the court’s jurisdiction flowed from either the Constitution, the legislation or both as was held by the Supreme Court in the case of Samwel Kamau Macharia vs. KCB & 2 Others, in Civil Application No. 2 of 2001.
6.That when the Bomet High Court extended the interim orders herein, it in effect was entertaining the Appeal, which was contrary to the provisions of Article 165(5) of the Constitution which clearly precluded the High Court from entertaining a matter that was the preserve of the ELC and ELRC. That the High Court erred in entertaining the Appeal herein by purporting to extend orders dated 9th February 2022 and therefore the said determination was amenable to be set aside ex debito justitiae.
7.That Section 18 of the Civil Procedure Act vested powers upon the High Court to transfer suits of a civil nature only when it had jurisdiction to handle the matter and when the court from which the suit is to be transferred from was clothed with jurisdiction to determine the matter. That a suit could not be transferred when the court in which it was filed did not have jurisdiction to determine it. That equally a court that lacked jurisdiction to determine a suit could not transfer a suit to another court.
8.That the jurisdiction of the Environment and Land Court was clearly delineated by Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act. That the dispute in the trial court fell within the jurisdiction of the Environment and Land Court.
9.The Respondents relied on the decision by the Court of Appeal in the Equity Bank Limited vs. Bruce Mutie Mutuku t/a Diani Tour Travel  eKLR to submit that where a suit was filed in court that did not have jurisdiction, the suit was incompetent and a non- starter and therefore could not be transferred.
10.That this court therefore lacked the requisite jurisdiction to handle the incompetent matter and must down its tools. That the only remedy for the Appellant was to withdrew the Appeal and file a compliant suit in a court of jurisdiction.
11.That the matter in the trial court being purely a land dispute and as held by the Supreme Court in its decision in Republic vs. Karisa Chengo & 2 Others (sic), the Appeal before this court was not proper and should be dismissed.
12.I have considered the Respondents’ application on a point of Preliminary Objection to the effect that the Appellant’s Appeal should be dismissed because it had been filed in the High Court at Bomet which court that did not have jurisdiction to hear matters touching on land disputes which was a preserve of the Environment and Land Court. That subsequently, the High Court had transferred the matter to this court being the court of competent jurisdiction when it still had no jurisdiction. There was no response to the Preliminary Objection.
13.The case of Mukisa Biscuits Manufacturing Ltd –vs- West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a Preliminary Objection where their Lordships observed thus:
14.The issue that arises for determination herein is whether the Preliminary Objection raised is sustainable.
15.An Objection to the jurisdiction of the court has been cited as one of the Preliminary Objections that consists a point of law. Indeed the locus classicus case on the question of jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S”(supra)where the Court held:
16.Judgment in the Principal Magistrate’s court in Sotik was delivered on the 31st July 2019, in which the determination was made pertaining the ownership of land parcel No. Kericho/Kipsonoi/855 and an order of permanent injunction issued thereinafter. The Appellant, being dissatisfied with the decision of the trial Magistrate filed an Appeal in the High Court sitting in Bomet which Appeal was registered as High Court Civil Appeal No 18 of 2019, this despite the matter being purely a land dispute.
17.It is on record that the matter was placed before the High Court Judge sitting in Bomet who proceeded to preside over the same on the 11th March 2021 and 8th July 2021. On the 7th February 2022, the High Court issued a temporary stay of execution of the trial court’s judgment wherein two days later, on the 9th February 2022 the court, by consent transferred this matter to the Environment and Land Court with an extension of the interim orders.
18.Section 18 of the Civil Procedure Act bestows upon the High Court (read ELC) the powers to transfer suits of a civil nature. The said provisions of the law provides as follows;
19.The power to transfer a suit is discretional and therefore a party seeking to transfer a matter from one court to another has the burden of providing sufficient reasons as to why the transfer is merited. However, a matter can only be transferred if the Court from which the Applicant is seeking to have the same transferred from, has jurisdiction over the said matter.
20.Section 13 of the Environment and Land Court Act gives the court power to hear and determine disputes relating to land use and other instruments granting any enforceable interests in land.
21.Having found that the matter before the trial court was purely a land matter, then it goes without saying that the High Court sitting in Bomet had no jurisdiction to entertain an Appeal arising therefrom which was a preserve of the Environment and Land Court. To this effect the said court could not purport to exercise powers granted to it under Section 18 of the Civil Procedure Rules to transfer such Appeal that had been filed in a court that lacked jurisdiction, to a court having jurisdiction and therefore sanctify an incompetent Appeal. Indeed there was no competent Appeal before the said court capable of being transferred to this court.
22.Indeed the court of Appeal in the case of Equity Bank Limited vs. Bruce Mutie Mutuku t/a Diani Tour & Travel  eKLR had held as follows;
23.In the case of Abraham Mwangi Wamigwi vs. Simon Mbiriri Wanjiku & Another  eKLR, it had been held as follows:-
24.I find that the High Court ought to have downed its tools on realizing that this Appeal was the preserve of the Environment and Land Court, and thereafter to have directed the parties to file the same in the appropriate court. To this effect, the Preliminary Objection herein dated 6th March 2023 is allowed. I find that there is no competent Appeal pending before this court and the same is herein struck out with cost.