https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5019

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT KAPSABET** **ELCLMISC. E031 OF 2025** **JOSEPH KIMUTAI SAINA……………………………………….APPLICANT** **VERSUS** **ANTHONY KIPTUM SITIENEI……………………………….RESPONDENT** **RULING** 1. By the Notice of motion application dated 21st October 2025, the applicant, Joseph Kimutai Saina through Lagat Joshua and Company Advocates, is seeking the following orders; 2. That this Honourable court be pleased to call into this Honourable Court Kapsabet Chief Magistrate Court ELC E026 of 2022 **Anthony Kiptum Sitienei versus Joseph Kimutai Saina** for purpose of hearing and determination. 3. That, the cost of this application be provided for. 4. That, this Honourable Court do issue such other orders as it deems fir to issue. 5. The foundational basis of the application is the supporting affidavit of twelve paragraphs and the grounds, inter alia; 6. The Respondent instituted a suit against the applicant in **Chief Magistrate Court ELC No. E026 of 2022,** in defense the applicant raised defense and counterclaim on adverse possession. 7. However, during the pendency of the said proceedings the Court of Appeal in Nairobi Civil Appeal number **E141 of 2022** rendered a judgment to the effect that issues adverse possession is the preserve of Environment and Land Court. 8. It is apparent that Chief Magistrate Court lacks jurisdiction to entertain matters pertaining adverse possession and therefore the said suit as currently constituted has limited chances of success. 9. The respondent through learned counsel Ms. Cherop, has no opposition to the application. 10. The applicant asserted that the magistrate’s court has no jurisdiction over the adverse possession claim pending before it. This court is guided by the case of **Owners of Motor Vessel Lillian ‘S’ vs Caltex Oil Kenya Ltd (1989) KLR 1 at** paragraph 6, where the Court of Appeal stated; ***‘........Jurisdiction was everything. Without it a court had no power to make one more step. Where a court had no jurisdiction, there would be no basis for continuation of proceedings pending other evidence. A court of law downed tools in respect of the matter before it the moment it held the opinion that it was without jurisdiction.***’; 1. In the case of **Sugawara vs Kiruti {2024} KECA 1417 (KLR)** at page 50 the Court of Appeal reasoned; ***‘ ...we find that Magistrates’ courts do not have jurisdiction to determine the claims of adverse possession.......’*** 1. In the premises, the application is unchallenged and meritorious. 2. Accordingly, the application dated 21st October 2025 is hereby allowed in terms of prayer number one for the transfer of suit to this court as stated in paragraph 1 (a) hereinabove with no orders as to costs. 3. It is so ordered. **Dated** and **Delivered** at **Kapsabet** this 28th day of **July 2026** **HON. G M A ONGONDO** **JUDGE** **In the presence of;** 1. Mr. B. Cheruiyot learned counsel for the applicant 2. Ms Cherop learned counsel for the respondent 3. Walter and Emma, court assistants