https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5002

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELCLMISC NO. E062 OF 2025** **JONATHAN NYUMU KAVITA::::::::::::::::::::::::::::::::::::::::APPLICANT** **VERSUS** **MIRIAM WAYUA KIILU** *(As Administrator and Legal Representative of the Estate of Charles Kiilu Katuta***)::::::::::::::::::::::::::::::::::::::::::RESPONDENT** **RULING** The application is dated 26th June 2026 and is brought under Sections 3 & 17(7) of the Environment and Land Court Act, Order 51, Rule 1 of the Civil Procedure Rules, 2010, Article 159 of the Constitution of Kenya, 2010 seeking the following orders; 1. That the Honourable Court be pleased to issue an order of transfer of Machakos Chief Magistrate's Case No. MCELC-E029/2024: Jonathan Nyumu Kavita v. Miriam Wayua Kiilu (As Administrator and Legal Representative of the Estate of Charles Kiilu Katuta) to this Honourable Court for determination. 2. That this Honourable court be pleased to issue any such other orders as may be fit and just for expeditious dispensation of justice. 3. That the costs of this application be provided for. It is grounded on the Supporting Affidavit sworn by Jonathan Nyumu Kavita and grounds that the Applicant on 1st March 2024 filed a suit against the Respondent in Machakos Chief Magistrate's Case No. MCELC-E029/2024: Jonathan Nyumu Kavita v. Miriam Wayua Kiilu (As Administrator and Legal Representative of the Estate of Charles Kiilu Katuta) an Originating Summons with his claim being based on adverse possession. The Respondent filed her response, directions were taken and the case was heard with the hearing being concluded on 25th July 2025. The parties were directed to file submissions, which they filed but before the court could grant a judgment date, the Court of Appeal held in Nairobi Civil Appeal No. E141/2022; Pauline Chemuge Sugawara v. Nairuko Ene Mutarakwa Kiruri & others that the magistrate's courts do not have jurisdiction to determine matters of adverse possession. This Honourable Court is seized with jurisdiction to transfer the case from the Magistrate to this court for final determination. It is fair and just for the case to be transferred to the Environment and Land Court at Makueni which is seized with jurisdiction to determine the same. It is in the interest of justice and fairness for the application to be allowed. The Respondents will not suffer any prejudice if this application is allowed. The Respondents oppose the application and state that, in view of the express provisions of section 38 of the [Limitation of Actions Act](https://new.kenyalaw.org/akn/ke/act/1968/21), the Magistrates’ Courts do not have jurisdiction to determine the claims of adverse possession. that if a suit is filed without jurisdiction, the only remedy is to withdraw it and file it in the court seized of jurisdiction. A suit filed in a forum without of jurisdiction is dead on arrival and cannot be revived. This court has considered the application together with the preliminary objection and the submissions therein. In Section 17 and 18 of the Civil Procedure Act confer on the High Court of Kenya limited jurisdiction to transfer a case instituted in a subordinate court where more than on subordinate courts have jurisdiction to try the case from one such subordinate court to the order or from the High Court to a subordinate court or vice versa. Other matters to be taken into consideration are in exercising this jurisdiction is; balance of convenience, questions of expense, interest of justice and possibilities of conduct hardship. In the case of [Hangzhou Agrochemicals Industries Ltd vs Panda Flowers Ltd](https://new.kenyalaw.org/akn/ke/judgment/kehc/2012/1937) 2012 eKLR the court addressed conditions to be considered in determining whether or not to grant an order transferring a suit, thus: *“1.“..In my view, which view I gather from authorities and from the law, the court should consider such factors as the motive and the character of the proceedings, the nature of the relief or remedy sought, the interests of the litigants and the more convenient administration of justice, the expense which the parties in the case are likely to incur in transporting and marinating witnesses, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship. If the court is left in doubt as to whether under all the circumstances it is proper to order transfer, the application must be refused. Being a discretionary power, the decision whether or not to exercise it depends largely on the facts and circumstances of a particular case”.* The question as to whether or not the Magistrates courts have jurisdiction to entertain or adjudicate upon a claim for adverse possession had been addressed by the Court of Appeal. In the case of Sugawara vs 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), the Court of Appeal held thus; *“It is our view that, if it was intended that claims for adverse possession be determined by the Magistrates’ Court, nothing would have been easier than for Parliament to have expressly enacted such a provision. So that in view of the express provisions of the law, a strict interpretation of section 38 would mean that hearing and determination of such matters is specifically limited to the Environment and Land Court to the exclusion of Magistrates’ Court.”* In the case of Njoki Wainaina vs Josephat Thuo Githachuri & 3 others; National Land Commission & another (Interested Parties) (2021) Eklr the Court observed as follows; *“the magistrate’s court, are not seized with jurisdiction to adjudicate upon claims founded on adverse possession on the face of the explicit provisions contained in Sections 37 & 38 of the*[*Limitation of Actions Act*](https://new.kenyalaw.org/akn/ke/act/1968/21)*.”* From the foregoing binding decisions, there is no gainsaying that the Chief Magistrates court including the trial court is not vested with jurisdiction to address and adjudicate upon the issues pertaining to adverse possession. In the case of **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989) the court stated that;** “Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction….Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.” These words were echoed by this Court in **Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel (2016) eKLR**in the following words; “In numerous decided cases, courts, including this Court have held that it would be illegal for the High Court in exercise of its powers under S.18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow a court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign, It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks parties cannot even seek refuge under the O2 principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the same. …In the same way, a court of law should not through what can be termed as judicial craftsmanship sanctify an otherwise incompetent suit through transfer.” In the case of John Mwangi Karanja vs Alfred Ndiangui (2011) eKLR, Hatari Waweru J ruled that; *“With the enactment of sections 1A and 1B of the Civil Procedure Act, the time has perhaps now come for this matter of transfer of suits to be looked at afresh….It appears to me that transfer of suits from one court to another is essentially a procedural issue that has been elevated to the status of jurisdiction. If a suit finds itself in the wrong court, surely it is in the interests of justice and in the interests of all concerned that the suit be forwarded to the appropriate court with jurisdiction so that the issues in dispute can be properly and finally adjudicated. What prejudice would any party suffer in that invent? After all, the overriding objective of the Civil Procedure Act and Rules is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act (section 1A (1)). The court itself is enjoined by subsection (2) of that section to seek to give effect to the said overriding objective in exercise of its powers under the Act or the interpretation of any of its provisions.”* And also the Court of Appeal in Daniel N. Mugendi vs Kenyatta University & 3 others (2013) eKLR in dealing with a similar case ruled as follows; *“And in order to do justice, in the event where the High Court, the Industrial Court or the Environment & Land Court comes across a matter that ought to be litigated in any of the other courts, it should be prudent to have the matter transferred to that court for hearing and determination. These three courts with similar/equal status should in the spirit of harmonization, effect the necessary transfers among themselves until such time as the citizenry is well-acquainted with the appropriate forum for each kind of claim.”* In the instant case, the originating summons filed by the Respondent on the 1st March 2024 is seeking an order of adverse possession by virtue of them having resided on the land for over 12 years. The court of appeal decision in Sugawara vs Kiruti Supra was delivered on the 11th October 2024. I find that this matter was filed when the law was not yet settled as to whether or not the Magistrate’s court had jurisdiction. As mentioned earlier Section 17 and 18 of the Civil Procedure Act confer on the High Court of Kenya limited jurisdiction to transfer a case instituted in a subordinate court where more than on subordinate courts have jurisdiction to try the case from one such subordinate court to the order or from the High Court to a subordinate court or vice versa. Guided by the above statutory and case law and invoking the court’s inherent and wide discretionary powers and in order do justice to the parties I transfer this matter to ELC Machakos for hearing and determination with no orders as to costs. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 28TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**