https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4086

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCL MISC E007 OF 2026** **HANNAH NJERI NGIGI……………………….……..………………………..………..APPLICANT** **VERSUS** **SIMON MAKANYA…………………………………………………………………...RESPONDENT** **RULING** 1. This ruling is on the notice of motion dated 5-5-2026. The motion which is by the Applicants is brought under **Sections 1A, 1B** and **18** of the Civil Procedure Act and all other enabling provisions of the Law. It seeks two residual orders as follows. 2. **That this Court be pleased to issue and order of transfer of case file No. Kandara MCELC E027/2024, Simon Makanya vs. Hannah Njeri Ngigi and Benard Ngugi Ngigi from Kandara Magistrate Court to Murang’a Environment and Land Court for hearing and determination.** 3. **That the costs of this application be provided for.** 4. The motion is based on Six grounds and is supported by an affidavit sworn by the 1st Applicant dated 5-5-2026. The gist of the grounds and the affidavit is as follows. Firstly, the Applicants were sued in the lower Court suit by the Respondent. He sought to evict them from the suit land. Secondly, in response the Applicants raised a counterclaim in which they sought to be declared the owners of the suit land through the doctrine of adverse possession after having occupied the land for about 29 years without force and permission of the Respondent and after occupying the land as owners. Thirdly, Magistrates Courts have no jurisdiction to deal with cases of adverse possession by virtue of the Court of Appeal decision in **Sagawara vs. Kiruti Appeal No. E41/2022.** This means that the Magistrate’s Court at Kandara cannot deal with the Applicants’ counter claim as it has no jurisdiction. Finally, it is only fair that the suit be transferred to this Court as it is the only one with the requisite jurisdiction to deal with the Applicants’ counterclaim. 5. The motion is opposed by the Respondent who has sworn a replying affidavit dated 14-5-2026 in which he replies as follows. One, the application by the Applicants is an afterthought and only brought after the lower court made a ruling on 20-3-2025 which was adverse to the Applicants and in favour of the Respondent. Two, the Applicants have not appealed against the said ruling and the orders issued therein are still in force. Three, the 1st Applicant is a vexatious litigant as she has also filed Murang’a ELC Case No. E018/2025. In this case, the Respondent has filed a notice of preliminary objection seeking to have the suit struck out. Four, the motion in incurably defective in law as the Applicants have not annexed the pleadings of the suit that they seek to be transferred. Five, the Respondent will be greatly prejudiced if the suit is transferred to Murang’a as it will affect the intended preliminary objection in Murang’a ELC case No. E018 of 2025. Finally allowing the motion will result in a multiplicity of suits in the same subject matter contrary to the law. 1. I have carefully considered the motion in its entirety including the grounds, the supporting affidavit and the replying affidavit by the Respondent. The following issues arise from the motion. 2. **Whether the Applicants have filed a counterclaim in Kandara MCELC E027/2024.** 3. **Whether Murang’a ELC Case No. EO18/2025 is on adverse possession.** 4. **Whether the dismissal of the Applicants motion dated 20-9-2024, on 20-3-2025 can defeat their claim for adverse possession.** 5. **Whether the Court can ignore the Applicants’ claim for adverse possession.** 6. **Whether Kandara Magistrates Court has jurisdiction to deal with a claim for adverse possession.** 7. Starting with the first issue, though I have not seen the Kandara case file in question, there is no evidence that the said counterclaim has not been filed. The Respondent does not deny that the Applicants have filed a counterclaim. I therefore find that the counterclaim exists in Kandara case file No. MCELC E027/2024. 8. Regarding the second issue, I find nothing to show that case No. E018/2025 is on adverse possession. Let the two cases proceed as they are and let the preliminary objection filed by the Respondent in the said case run its full course. 1. It is my finding that the dismissal of the Applicants’ motion dated 20-9-2024 in **Kandara MCELC E027/2024** cannot defeat the Applicants’ claim for adverse possession. Such a claim can only be defeated if the Applicants fail to prove their case to the required standard after they have been accorded a fair hearing as required by **Article 50(1)** of the Constitution. 2. In answer to the fourth question, it is my finding that the Court has to hear the Applicants’ claim that they are entitled to the suit land through the doctrine of adverse possession. This is a right guaranteed by Article 50(1) of the Constitution which provides: **“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a Court or, if appropriate, another independent and impartial tribunal or body”.** The Court cannot therefore ignore the Applicant’s counterclaim. 1. On the final issue, I find that the Magistrate Court at Kandara has no jurisdiction to deal with claims for registration of land through the doctrine of adverse possession. In the case **Sugawara vs. Kiruti Appeal No. E041/2024**, the Court of Appeal held that a Magistrates’ Court lacks jurisdiction to hear and determine a claim founded on adverse possession because **Sections 37** and **38** of the Limitation of Actions Act vest jurisdiction over such claims in the Environment and Land Court (and formerly, the High Court). Since the Magistrates’ Court has no jurisdiction, the claim for adverse possession can only be heard by this Court. 1. In conclusion and for the reasons already given, the notice of motion dated 5-5-2026 is allowed in terms of prayer 2. Costs of this application to be in the cause to be transferred from Kandara Magistrates Court. **It is so ordered.** **Dated, Signed and Delivered virtually at Murang’a this 30th day of June, 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistants – Antony** **Applicant’s Counsel – Mr. Gatonye** **Respondent’s Counsel – Miss Wainaina h/b for Mr. Ngigi**