Abongo v Ombogo & another (Environment and Land Miscellaneous Application E059 of 2025) [2026] KEELC 3314 (KLR) (7 May 2026) (Ruling)

Abongo v Ombogo & another (Environment and Land Miscellaneous Application E059 of 2025) [2026] KEELC 3314 (KLR) (7 May 2026) (Ruling) Neutral citation: [2026] KEELC 3314 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Environment and Land Miscellaneous Application E059 of 2025 FO Nyagaka, J May 7, 2026 Between Jane Awinja Abongo Applicant and Silas Ombogo 1st Respondent Francis Ombogo 2nd Respondent Ruling Introduction 1.By a Notice of Motion dated 19th November 2025 the applicants moved this Court under Section 3A, Civil Procedure Rules (sic), Section 1A and 1B of the Civil Procedure Act, Section 7(1)(b) of the Magistrate Court Act Chapter 10 Laws of Kenya, Sections 7 and 38 of the Limitation of Actions Act, Chapter 22 Laws of Kenya, Section 13(1)(2) of the Environment and Land Court Act and all enabling provisions of law. They sought the following orders:1.…Spent2.That this honorable court do order the transfer of Oyugis ELC E025 of 2023 Silas Ombogo & another vs Jane Awinja Abongo, a matter pending before Senior Principal Magistrate to the ELC Homabay that has jurisdiction on a matter pursuant to Section 38 and 7 of the Limitation of Actions Act.3.That upon granting prayer (b) above the matter be mentioned before the Honorable Judge for directions accordingly.4.Costs of the application to be in the cause. 2.The application was based on grounds on the face of it and indicated to be supported by an Affidavit sworn by learned counsel Cephas Agure but it was actually supported by an Affidavit sworn by the 1st Applicant, Jane Awinja Abongo. 3.The grounds were that at the time of filing the suit sought to be transferred, matters of adverse possession were adjudicated before the lower courts until a ruling was given regarding Section 38 of the Limitation of Actions Act. The Defendant therein had raised an issue of adverse possession through their Defense and Counterclaim. The hearing had proceeded to the Defence stage when the Applicants could not proceed because their Defence was anchored on Section 38 of the Limitation of Actions Act. Therefore, the trial court had no jurisdiction hence this application. The application was urgent because the lower court matter was being mentioned on 2nd December 2023 (sic) before honorable court at Oyugis to confirm the filing and transfer of the suit to this court. The application ought to be hard expect for convenience and speedy transfer of the suit. 4.They supporting Affidavit sworn by Jane Awinja Abongo on the same date of as the application reiterated the contents of the grounds in support of the application save that the deponent added that she had filed a Defense and counterclaim, a copy of which she annexed as JAA 1. Further, the matter had proceeded for until it was scheduled for Defense hearing on 28th October 2025 when her advocate raised the issue of jurisdiction in it after upon the ruling (sic) on Section 38 of the Limitation of Actions Act being made. Thus, the stayed the matter pending the filing of the instant application. 5.The application was opposed by the Respondent, FRANCIS OMBOGO, through a Replying Affidavit he swore on 27th November 2025. He deponed that he had the written authority of the 1st Respondent to swear the Affidavit on his behalf. He annexed and marked a copy of it as "FO1". He added that the application constituted an abuse of the process of the Court. That it was frivolous, vexatious and ought to be dismissed suo moto (sic). He acknowledged that he and his counterpart filed a suit before the Magistrate's Court against the Applicant. It was Oyugis ELC No. E025 of 2023. The Applicant filed a defence and counterclaim. In the counter claim he prayed for the relief of adverse possession. He annexed as "FO2" a copy of the Defence and Counter claim. 6.He then deponed that from the inception and in terms of Section 38 of the Limitations of Actions Act, the Magistrate's Court lacked jurisdiction to hear and determine matters relating to claims of adverse possession. He added that this Court lacked jurisdiction to transfer the suit since the counter claim was instituted in a court without jurisdiction, was void ab initio and could not be transferred. The transfer would lend the Counterclaim legitimacy where the law considered it a nullity. 7.The application was disposed of by way of written submissions. The applicant filed written submissions dated 2nd February 2026. In them, he argued that Section 3A of the Civil Procedure Act provided that nothing in this Act should limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court while Section 1A was on the overriding objectives of the which were to facilitate the just, expeditious, proportionate and affordable resolutions of the civil disputes governed by the Act. Section 1B was along the same lines but for the efficient disposal of the business of the court. 8.Of the position of the suit sought to be transferred, he argued that it had proceeded with the Plaintiff’s case which had been closed. It was due for Defence hearing on 28th October 2025 when it could not proceed because the Sugawara decision had been made earlier that month. Thus, the suit was adjourned and fixed for mention on 2nd December 2025 to confirm the transfer thereof or otherwise. 9.He then argued that Section 38 of Limitation of Actions Act provided for claims on adverse possession and was to the effect that the High Court was the one to handle the matters. He reproduced the provision. He added that Section 7 of the Act was about non recovery of land after 12 years of non-occupation of it and the occupation thereof by another without his permission. He added the provisions of Section 13(1) (2) of Environment and Land Act which now clothes this Court under Article 162(2)(b) of the Constitution to handle such disputes. Having summarized that the application was about, he added that issues of jurisdiction are of great concern and could not be wished away. Therefore, he prayed for the transfer as it is a matter of Law. He relied on the case of GITONGA -VS- M'MWIRICHIA & ANOTHER (Environment and Land Appeal 31 of 2023) /2025/ K EELC 395 (KLR) (5 February 2025) (Judgment). He added the import of Articles 40(1), Article 159(1) and 50 of the Constitution 2010 and prayed that the Court allows the Applicants be heard on their Defence and Counter-claim. 10.On his part the Respondent filed written submissions dated 15th January 2026 he argued that the trial Court did not have the requisite jurisdiction to handle the Counterclaim in Oyugis ELC No. E025 of 2023 under Section 38 and 7 of the Limitation of Actions Act Chapter 22 of the Laws of Kenya in so far as it was a claim for Adverse Possession. He relied on the decision of The Owners of Motor Vessel 'Lilian S' vs. Caltex Oil Kenya Limited (1989) 1 KLR 1 and Civil Application No. 1 of 2016 Hon. (Lady) Justice Kalpana H. Rawal vs. Judicial Service Commission & Others (sic) and the Supreme Court of Nigeria decision in Supreme Court Case No. 11 of 2012 Ocheja Emmanuel Dangana vs. Hon. Atai Aidoko Aliusman & 4 Others where Walter Samuel Nkanu Onnoghen (sic) to emphasize on the importance of jurisdiction. 11.He added that jurisdiction is the life blood of any adjudication because a court or tribunal without jurisdiction is like an animal without blood, which means it is dead, and its decision would be of no legal effect whatsoever. He also relied on Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & others (2012) eKLR. He cited Section 38 of the Limitation of Actions Act. He argued that the Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiruti (Sued in her capacity as the administrator of the estate of Mutarakwa Kirui Lepas alias Mutaragwa Kiruti Lepaso alias Mutarakwa Kiroti Lepaso Civil Appeal E141 of 2022 (20240 KECA 1417 (KLR) (11 October 2024) Judgment observed that subordinate courts did not have jurisdiction over adverse possession claims. 12.He then submitted that it was the applicant’s burden to make out a strong case for the proposed transfer and that want of jurisdiction was not a ground for transfer of a case. He contended that in the instant case, the main ground advanced by the Applicant was that the magistrate's court has no jurisdiction to grant prayers sought in the counter claim which cannot be a ground for transfer sought. To that he submitted that the Applicant consciously elected to file the said counterclaim before the magistrate's court hence she was deemed to have been aware that the magistrate's court had no jurisdiction to grant the prayers. He then relied on the case of David Karimi Ngirigacha v Kenya Industrial Estates Limited & Another [2021] KEHC 4179 (KLR) where the Court held that for a matter to be transferred from Subordinate Courts to the High Court or any transfer for that matter it cannot be made unless the suit had been in the first instance brought to a court which has jurisdiction to try it. He then summed it that the High Court cannot exercise its discretion to transfer a suit from one court to another if the suit is filed in the first instance in a court which does not have jurisdiction and should therefore the application was incompetent and ought to be dismissed with costs. Issue, Analysis and Determination 13.This court has considered the application the law under the submissions of both counsel for the respective parties. It is of the view that the only two issues for determination are whether the application is merited and who to bear the costs thereof. 14.In this case the issue is that the applicant prays to this Court to grant an for transfer of the suit No. E023 of 2023 pending before the Oyugis Court, to itself for hearing and determination. 15.The law on transfer of suits is provided for by Section of the Civil Procedure Act which stipulates as follows:“Where a suit may be instituted in any one of two or more subordinate courts, and is instituted in one of those courts, any defendant after notice to the other parties, or the court of its own motion, may, at the earliest possible opportunity, apply to the High Court to have the suit transferred to another court; and the High Court after considering the objections, if any, shall determine in which of the several courts having jurisdiction the suit shall proceed.” 16.Section 18 provides for withdrawal of and transfer of suits by the High Court to itself for hearing and determination. 17.On the application of the law to the facts in the instant application, it is worthy of note that for a long time up to the 11th October 2024 confusion reigned, despite the clear provisions of Sections 37 and 38 of the Limitation of Actions Act, in the subordinate and superior courts in Kenya regarding whether or not the Magistrates Courts had jurisdiction to hear and determine claims of adverse possession. One school of thought held in the superior courts that magistrates had jurisdiction while another held otherwise. 18.In the school that held a positive view over the same would be found decisions such as Christopher Kangogo Cheboiboch v Susan Chepichi Chepkiyeng [2021] eKLR; Philip Kithaka v Mercy Karimi Nyaga [2021] eKLR; and Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & another [2020] eKLR. In the other school of thought would be found decisions such as Njoki Wainaina v Josephat Thuo Githachuri & 3 others; National Land Commission & another (Interested Parties) [2021] eKLR; Michael Chebii Toroitich v Peter Mogin Yatich Chebii [2013] eKLR; and Jesee Njoroge Gitau v Kibuthu Macharia & another [2019] eKLR; and Reuben v Mwangangi & 7 others (Environment & Land Case E011 of 2023) [2023] KEELC 21899 (KLR), among others. 19.While this Court held the humble view as that of the latter school of thought, that is to say, that a plain textual reading of Section 38 of the Act in issue rendered the meaning that only the superior court, being the High Court prior to the establishment of the Environment and Land Court post the 2010 Constitution, my view would only have been persuasive to that of my brother and sister colleague judges were I to be in the present position as I am. That would have still created another of the many voices wallowing in miasma of the confusion that prevailed at the time. 20.It needed a court of higher hierarchy to call the superior court voices to order. That is where the Court of Appeal holding in Sugawara v Kiruti (Sued in her capacity as the administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others (Civil Appeal E141 of 2022) [2024] KECA 1417 (KLR) (11 October 2024) (Judgment) comes in handy to clear the confusion. What I mean to say is that it excites when one knows that that their view finds approval by one duly mandated to so do. Thus, from the 11th October 2024 the position is now clear, that Section 38 of the Limitation of Actions Act provides that only the ELC has the original jurisdiction to hear and determine adverse possession claims. 21.The above history then brings into focus the facts of the instant application. It is clear that Case Number Oyugis SPM ELC E064 of 2024 was filed, and proceeded in part for hearing before the trial magistrate before the 11th of October 2024 Sugawara v Kiruti (supra) decision. In that case a Counterclaim had been filed in which the defendants who were in danger of eviction that would result of a possible decision out of a successful litigation of the said Oyugis SPM ELC case. They, thus, filed a Defense and Counterclaim for adverse possession of the portion of land they allegedly were in occupation. Does that then disentitle them from making a prayer that the suit wherein there was a Counterclaim raising an issue that who would lace the matter outside of the jurisdiction of that trial court be shut out from moving this court accordingly? The answer lies in understanding the interrelationship between a suit and Counterclaim. 22.Of the nature of a Counterclaim, Sir Dinshah Fardunji Mulla, in “The Code of Civil Procedure, 18th Edition, 2011” at page 1928 writes that “A Counterclaim has the effect of cross-suit but only one final judgment is to be pronounced in the suit on the original claim of the Plaintiff and the Counterclaim of the Defendant.” 23.In the Court of Appeal case of Willam Koross v Hezekiah Kiptoo & 4 others, C.A. No. 223 of 2013 which stated that“…Before delving into res judicata proper, we need to state that there cannot properly be two judgments, and contradictory ones at that, in the same suit. The presence of a counterclaim in a suit, while essentially amounting to a cross-suit, does not give rise to a separate, stand-alone second judgment. A counterclaim never stands on its own and cannot be a pleading independent of a defence.” 24.Order 7 Rule 13 of the Civil Procedure Rules provides as follows:“Discontinuance, stay or dismissal of suit.13.If, in any case in which the defendant sets up a counterclaim the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.” 25.When the provision reproduced above is looked at from the prism of the Limitation of Actions Act, it becomes clear that a Counter-claim is separate or independent of the suit. However, once tried together, it gives rise to one judgment. This is because the law acts in synchrony. In a functioning legal system which esteems the rule of law, laws ought to be unitary in terms of purpose for the well-functioning of society. The law cannot and should never provide for one issue in two different ways. That would be a recipe for chaos: it would be a precursor for disobedience of the law. But it is correct to argue that a counterclaim can be treated as a cross suit, as was held by the Supreme Court of India in Sh. Jag Mohan Chawla & another v Dera Radha Swami Satsang & Ors. 26.Based on the elucidation above, this court has considered the application. The suit sought to be transferred was filed in the year 2023. The Defence and Counterclaim thereto dated 23rd March 2023, which is annexture No. JAA1, was filed on or 24th March 2023. It raised the claim of adverse possession. That was before the decision of Sugawara (supra) was rendered by the Court of Appeal, clarifying the position of the law regarding Section 38 of the Limitation of Actions Act. 27.The Respondents argue that this Court cannot transfer a matter from a court that did not have jurisdiction in the first place. They rely on a number of decisions which are persuasive. The Applicant thinks otherwise. 28.I have considered the submissions by both learned counsel. First of all I wish to state that the decisions relied on by the Respondents are distinguishable from the facts of the instant case in the sense that while they dealt with case where facts were clear on which subject was to be transferred, those of the instant application point otherwise. This is because as I have pointed out above, for a long period, almost ten years now until the Sugawara decision (supra), confusion reigned on Kenya as to which court had the jurisdiction to handle disputes of the nature that deprives the trial court of jurisdiction. Many subordinate courts handled and determined many adverse possession claims then, and such decisions have been implemented and some were affirmed by the courts of equal status or the ELC. They have been implemented and are ‘resting’. Since the Sugawara decision has now settled the issue, what then becomes of such decisions that were made from subordinate courts and are resting? Do they get revived, reviewed and set aside or declared a nullity? In my humble view that cannot be the road the legal system should trudge, otherwise it will open the biggest pandoras’ box. Instead, the best and efficacious step is to wink and move on just as the Holy Bible provides with regard to those people whose did not know the law. It is written in Acts 17:30 and 31 as follows:“30.And the times of this ignorance God winked at; but now commandeth all men every where to repent: 31 Because he hath appointed a day, in the which he will judge the world in righteousness by that man whom he hath ordained; whereof he hath given assurance unto all men, in that he hath raised him from the dead.” 29.By the same token, and in the interest of justice in regard to the instant application, when parties filed adverse claims during the time of confusion as to which court would handle such disputes, they were excused and the disputes were either settled or determined. It should therefore be that this Court should wink at this error regarding the instant subject as the adverse claim was filed way before the decision that clarified the position of the jurisdiction of the lower courts in such claims. Why do I say so? 30.It is not in dispute that it had been heard to the close of the Plaintiff’s case and was due defence hearing on 28th October 2025 when the issue of jurisdiction was brought to the attention of the trial court following the Court of Appeal decision in the Sugawara case. It is not denied that when the matter was proceeding before the trial Court, at no point in time did the Plaintiff raise the issue of Jurisdiction of the Court before the decision of the Sugawara case. 31.In my humble view, while it is clear that parties do not confer the jurisdiction of the Court, the fact that the Plaintiff did not raise the issue immediately the Counterclaim was raised means that he too was of the view then that the trial court had jurisdiction until the Court of Appeal brought out a clear position on the issue. Thus, while this Court is not conferring any jurisdiction to the lower court on adverse possession disputes, it would be in the interest of justice to grant the order of transfer of the suit from the subordinate court to this one which has jurisdiction for determination. This transfer sought and granted is one of those the Article 159(2)(d) of the Constitution, Section 3A of the Civil Procedure Act and the wider interests of justice permit that it be given. 32.Accordingly, I order that Oyugis ELC E025 of 2023 Silas Ombogo & another vs Jane Awinja Abongo be transferred to this Court for hearing and determination. 33.The Costs of this application shall be in the cause. This file is hereby closed forthwith. 34.It is so ordered. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 7TH DAY OF MAY 2026.HON. DR. IUR NYAGAKAJUDGEFrom 1:29 PM, in the presence of,Mr. Applicants Advocate for the ApplicantsMr. Odah Advocate for Respondent