https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3907

Makokha v Ambululi (Environment and Land Miscellaneous Case E049 of 2025) [2026] KEELC 3907 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 3907 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Miscellaneous Case E049 of 2025 A Nyukuri, J June 17, 2026 Between Evans Makokha Applicant and Okoyana Ambululi Respondent Ruling Introduction 1.Before court is a Notice of Motion dated 9th July 2025 filed by the applicant seeking the following orders;a.Spentb.That this Honourable Court be pleased to transfer the court file in Butali MCL & E Case No. 5 of 2021 (O.S) to this Honourable court for full hearing and determination.c.That the costs of this application be provided for. 2.The application is premised on the grounds on its face and the supporting affidavit sworn by the applicant’s advocate on 7th July 2025. The applicant’s case is that Butali CM L&E No. 5 OF 2021 is based on a claim for adverse possession. 3.Further that in 2024, the Court of Appeal made a decision to the effect that the Magistrates Courts lack jurisdiction to hear and determine adverse possession claims. That the trial court in that suit found that it had no jurisdiction to hear and determine the suit. That it is in the interest of justice that the orders sought be granted. 4.The application was opposed. The respondent filed grounds of opposition dated 2nd December 2025. He stated that the suit sought to be transferred to this court was struck out by the lower court for want of jurisdiction on 11th February 2025. That this court cannot transfer a suit filed in a court with no jurisdiction because it is a nullity. 5.The court directed parties to file written submissions in support of the application. The respondent filed submissions dated 2nd December 2025, which the court has duly considered. Analysis and determination. 6.The court has carefully considered the application, the response thereto and submissions. The only issue that arise for the court’s determination is 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. 7.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. 8.In the instant suit, the applicant deponed that on 11th February 2025, the trial court held that it lacked jurisdiction to hear and determine Butali MC L&E No. E005 OF 2021 (O.S). In that regard, the respondent stated that on the said date the lower court struck out that suit. There was no denial by the applicant on the assertion that the lower court on finding that it had no jurisdiction, proceeded to strike out the suit. 9.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. 10.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. 11.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 17TH DAY OF JUNE 2026A. NYUKURIJUDGEIn the presence ofMr. Mbaka for the applicantMr. Were for the respondentCourt Assistant: Delphine