https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4106

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC MISC. CASE NO. E050 OF 2025** **JEREMIAH SHIKUNZI MBALA………………..……APPLICANT** **VERSUS** **BEATRICE AMBUTSI & 3 OTHERS…………RESPONDENTS** **RULING** 1. Before court is a Notice of Motion dated 13th June 2025 filed by the applicant seeking the following orders; 2. **That this Honourable court be pleased to withdraw KAK CM ELC CASE NO. E 254 OF 2023 (O.S) now pending before the Chief Magistrates Court Kakamega and thereafter transfer the same for trial or disposal to the Environment and Land Court Kakamega** 3. **That costs of this application be in the main suit.** 4. The application is premised on the supporting affidavit of the applicant. The applicant’s case is that he filed Kakamega CMC ELC CASE NO. E254 OF 2023 claiming for land against the respondent on the basis of adverse possession, which claim the trial court has no jurisdiction to hear and determine. 5. The application was opposed. The respondent filed grounds of opposition dated 24th February 2026 and replying affidavit dated 13th February 2026 opposing the application. He stated that the orders sought could not be granted as the suit was nullity *ab initio* and that the same was an abuse of the court process. Further that the power to transfer a suit is vested in the High Court. 6. Parties filed their respective written submissions, which the court has duly considered. 7. Having considered the application, response thereto and submissions, the only issue for this court’s determination is whether the applicant deserves the orders sought. 8. This court has the jurisdiction to transfer a matter from the lower court to this court, as provided for in section 18 (1) (b) (i) of the Civil Procedure Act. 9. Section 38 (1) of the Limitation of Actions Act grants the Environment and Land Court the jurisdiction to hear and determine claims of adverse possession. In case of **Patrick Ndegwa Munyua v Benjamin Kiiru & Another [2020] KEELC 3911 (KLR),** the ELC held that Magistrates courts had jurisdiction to hear and determine claims of adverse possession. This had been the position until the Court of Appeal in the case of **Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiritu & 4 Others Civil Appeal No. E141 of 2022,** delivered in October 2024, held that Magistrates Courts have no jurisdiction to hear and determine claims based on adverse possession**.** 10. Therefore between 2020 and 2024, the Magistrates court lawfully heard and determined claims of adverse possession. The suit sought to be transferred was filed in 2023 hence it was filed before a court that had jurisdiction as of the date of filing. 11. In the premises, I am satisfied that the application dated 13th June 2025 is merited and the same is hereby allowed. In the result, Kakamega CM ELC CASE NO. 254 OF 2023 is hereby transferred from the lower court to this court for hearing and determination. I make no order as to costs. 12. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 1ST DAY OF JULY, 2026** 1. **NYUKURI** **JUDGE** **In the presence of** Ms Ogalo for the applicant The 1st respondent in person No appearance for the 2nd to 4th respondents Court Assistant: Delphine