R U L I N G
This ruling is in respect of the Notice of Motion application dated 12th January, 2026, brought by the 1st and 2nd Defendants pursuant to the provisions of sections 1A, 1B, 3A, and 80 of the Civil Procedure Act and Order 45 Rules 1 & 2 of the Civil Procedure Rules 2010.
The application seeks;
1) An order that the court be pleased to review and set aside the Ruling delivered on 27th November, 2025, insofar as it held that the Applicant failed to attach a valuation report;
2) An order that the court be pleased to find that the pecuniary jurisdiction of this matter lies in the Chief Magistrate’s court;
3) That consequently the suit be transferred to the Kisumu Chief Magistrate’s court for hearing and determination;
4) The costs of the application be provided for.
The case of the Applicant is that the court dismissed the Applicant’s application on the erroneous finding that no current valuation was provided, yet the Applicant had annexed a valuation report marked “EM-1” valuing the suit property at Kshs. 15,000,000/-, which is within the jurisdiction of the Magistrate’s court.
That the omission by the court to take into account the said valuation report constitutes an error apparent on the face of the record within the meaning of section 80 of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules.
That the application does not seek to challenge the merits of the ruling nor invite the court to sit on appeal over its own decision, but is confined to the correction of a plain and self-evident error on record.
That, unless the ruling is reviewed, the Applicant will suffer prejudice by being compelled to litigate in a forum other than the most efficient and proportionate forum contemplated by law.
The application was supported by the averments in the Supporting Affidavit sworn by Elvis Majani, Advocate, and the annexures thereto.
The application was opposed vide the grounds contained in the Replying Affidavit sworn by the Plaintiff/Respondent on 22nd March, 2026. The Plaintiff’s case is that the application does not meet the threshold for review and is merely an attempt to reopen issues already determined by the court. That the contents of the valuation report are contested, and the maker of the report should be subjected to cross-examination to verify the contents, which can only be done at the full hearing of the suit.
The Plaintiff contended further that while the valuation report emphasizes that the suit property is undeveloped, that a valuation report by a valuer commissioned by the Plaintiff valued the suit property at Kshs. 25,000,000/-, a sum within the jurisdiction of this court.
That the fact that the backbone of the preliminary objection and this application is the valuation report makes it depart from a pure point of law to contested facts, which can only be examined during trial.
It was the Plaintiff’s case that the application was therefore incompetent, bad in law, and ought to be dismissed with costs.
The application was heard orally on 18th May, 2026. It was submitted on behalf of the Applicants that it was an error on the part of the court to hold that there was no valuation report exhibited. Counsel referred the court to the provisions of section 80 of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules. Counsel urged the court to allow the application.
On behalf of the Plaintiff, it was submitted that the matters raised in the application are matters that should be raised on appeal. Counsel referred the court to the case of Mwabidonge vs. Okemo, Election Petition NO.15 of 2003, where, Counsel submitted, the court held that an application for review should be treated with great caution. Counsel also relied on Outa -vs- Okello & 3 Others, Petition 6 of 2014 (paragraph 95 thereof). Counsel urged the court to dismiss the application.
The 3rd and 4th Defendants/Respondents filed no response to the application.
I have considered the application. The substantive prayer sought is a review of the ruling of this court delivered on 27th November, 2025.
The record shows that the ruling dated 27th November, 2025, was in respect of the Notice of Motion application dated 9th June, 2025, by the Applicants herein and a Preliminary Objection raised by the 3rd Defendant.
The application dated 9th June, 2025, a copy of which is attached to the present application, had sought orders that the suit be struck out for want of pecuniary jurisdiction or, in the alternative, the suit be transferred to the Chief Magistrate’s Court at Kisumu for hearing and determination.
A reading of the said ruling shows that, in dismissing the application dated 9th June, 2025, the court observed that no current valuation of the property was provided and that the fact that the suit property was charged to the 3rd Defendant in the year 1986 for Kshs. 120,000/- is not an indication of the value of the property in 1986 or currently.
The court found that, as no grounds had been demonstrated to warrant striking out of the suit and as no valuation had been presented to demonstrate that the value of the suit property was within the jurisdiction of the Magistrate’s court, the application lacked merit.
The Applicants contend that there was an error in this finding by the court, as indeed there was a valuation report attached to the application.
I have perused the application dated 9th June, 2025, as filed in court. Attached to the Supporting Affidavit sworn by ELVIS MAJANI ADVOCATE on 9th June, 2025, in support of the application was a valuation report dated 24th May, 2025, and marked ‘EM – 1’ in paragraph 4 of the Affidavit.
The same valuation report is annexed to the current application.
The existence of the valuation report has not been disputed by the Plaintiff. What is disputed is the value assigned to the suit property by the valuer. To counter the said value, the Plaintiff exhibited a valuation report annexed to the Replying Affidavit and dated 3rd November, 2025, which valued the suit property at Kshs. 25,000,000 open market value.
In the premises, the court’s finding in the ruling dated 27th November, 2025, that there was no current valuation exhibited while there was a valuation report attached to the application constituted an error apparent on the face of the record to warrant review of the ruling in terms of Section 80 and Order 45(i) of the Civil Procedure Act and Rules respectively. Section 99 of the Civil Procedure Act allows the court to amend a judgment, decree, or order of the court.
The correct position is therefore that there was indeed a current valuation report filed with the application valuing the suit land at Kshs. 15,000,000/-.
The Applicant seeks that the suit be transferred to the Magistrate’s court for hearing and disposal as the value of the suit land was within the jurisdiction of the Magistrate’s court.
In opposing this prayer, the Plaintiff exhibited a valuation report valuing the property at Kshs. 25,000,000/-, hence beyond the jurisdiction of the Magistrate’s court, and urged the court to dismiss the application.
The Plaintiff’s case is that the valuation of the 1st and 2nd Defendants did not take into account the developments on the suit land.
The law guiding the place of filing of suits is found in sections 11 to 18 of the Civil Procedure Act. Section 11 provides that suits shall be filed in the court with the lowest grade competent to try it. Under section 18, this court may, inter alia, transfer any suit or other proceedings pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the suit.
The basis for seeking the transfer of the suit in this matter is the pecuniary jurisdiction of the court.
According to the 1st and 2nd Defendants, the matter is within the pecuniary jurisdiction of the trial court, while according to the Plaintiff, the matter is within the jurisdiction of this court. Each side has a valuation report to support its contention. As to which of the two valuation reports reflects the true value of the suit land will be a matter to be proved in the evidence. The case was filed by the Plaintiff. He chose this court as the appropriate place for the trial of his claim and insists so. In the face of the two valuation reports, the court is unable to find that the pecuniary jurisdiction of this matter lies in the Magistrate’s court. In the circumstances, it is just that the matter proceeds in this court, and should it ultimately be found through production of evidence that in deed the value of the claim was within the pecuniary jurisdiction of the Magistrate’s court, the Defendants shall be compensated by way of costs.
For the foregoing reasons, I find that the prayer for review is merited. The court hereby reviews the ruling dated 27th November, 2025, by vacating the finding that there was no current valuation exhibited and replacing it with a finding that there was indeed a valuation report exhibited, attached to the Supporting Affidavit and marked ‘EM – 1’.
The prayer for transfer of the suit to the Magistrate’s court for hearing and disposal is declined. The suit shall proceed to hearing and determination on merit before the Environment & Land Court.
Each party shall bear its own costs of the application.
Orders accordingly.
Ruling written and signed at Kisumu by:
E. ASATI,
JUDGE.
Dated and read this 16th day of July 2026, virtually, through Microsoft Teams online application by:
HON. JUSTICE C. OLUOCH,
JUDGE.
In the presence of
Atika.. Court Assistant
………………………………….. for the Applicant.
……………………………….… for the Respondent.
| ELC LC E022/2025 RULING 2 |