https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5184

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC MISC. CASE NO. E012 OF 2026** **SILAS ONGULO KWEYU……………………………… 1ST APPLICANT** **CATHERINE AUMA OKUTO…………………………2ND APPLICANT** **VERSUS** **CLEMENT OMITO OMITO alias** **CLEMENT LUKOKO..............…….…….………1ST RESPONDENT** **WILSON WAMBUTSI (both trading** **as Ingusi Company formerly known** **as Opwoko Nanzala & Company) ...............2ND RESPONDENT** **RULING** **Introduction** 1. Before court is a Notice of Motion dated 9th June 2026 filed by the applicant seeking the following orders; 2. **That the Principal Magistrate Mumias Land case No. 115 of 2018- formerly Kakamega High Court Case No. 87 of 2006 be transferred to this Honourable court for hearing and final disposal.** 3. **That the proceedings in Mumias Principal Magistrate Land case No. 115 of 2018 be s topped until hearing and final determination of this application.** 4. **That any other further orders be made as this Honourable court may deem just and expedient.** 5. **That the costs of this application be provided for.** 6. The application is premised on the grounds set out on its face and is supported by the affidavit sworn by the 1st applicant on 9th June 2026. The applicants contend that Mumias Principal Magistrate's Land Case No. 115 of 2018, formerly Kakamega High Court Case No. 87 of 2006, is founded on a claim of adverse possession. 7. The applicants further state that the respondent instituted the suit before the High Court at Kakamega, where they filed a defence and counterclaim founded on adverse possession. They aver that the matter was subsequently transferred to the Magistrates' Court, which at the time had jurisdiction to hear the dispute. However, they contend that Magistrates' Courts presently lack jurisdiction to hear and determine claims founded on adverse possession. Consequently, they urge this Court to transfer the suit to the Environment and Land Court at Kakamega for hearing and determination. They maintain that the application has been made in good faith and is meritorious. 8. The application is opposed. The respondents filed a replying affidavit sworn by Clement Omito Omito on 15th June 2026. They contend that the application is a gross abuse of the court process, having been filed solely to delay the hearing and determination of Mumias SPMELC No. 115 of 2018, which had been scheduled for hearing on 16th June 2026. They further state that the matter is part-heard and that the respondents have already closed their case. According to the respondents, the suit does not concern ownership or possession of Land Parcel No. South/Wanga/Shikalame/951, and the applicants are not in possession of the suit property. They therefore contend that the prayer for transfer on the basis of adverse possession is merely a sham. 9. The respondents further depose that the dispute has previously been the subject of several proceedings before the High Court, including High Court Case No. 1056 of 1995, Miscellaneous Application No. 57 of 2004, and Civil Case No. 18 of 2008, pursuant to which orders were implemented by the Land Registrar. They state that the suit property is presently registered in the name of Opwoko Nanzala & Company, thereby settling the question of ownership, which issue is now *res judicata*. 10. They further aver that the applicants' previous attempt to obtain the property fraudulently was unsuccessful; that the 1st applicant ceased all acts of trespass over the suit property in 2023; and that none of the applicants has entered upon or cultivated the suit property since then. They maintain that they have remained in exclusive possession and occupation of the property since 2023 and further state that the applicants' originating summons for adverse possession filed before the High Court at Kakamega was struck out. They therefore urge the Court to dismiss the application with costs. 11. The application was disposed by way of written submissions. Both parties filed submissions dated 29th July 2026; which the court has duly considered. **Submissions** 1. Counsel for the applicant submitted that the applicant pleaded a counterclaim of adverse possession in the suit which is now pending before the court at Mumias. Counsel maintained that the jurisdiction of the Magistrates court to hear and determine claims based on adverse possession was only recently pronounced as lacking. Counsel argued that the question of occupation remained contested and the same cannot be canvassed at this stage. It was the applicant’s argument that since the suit now pending before the lower court was first filed before the High court and later transferred to the ELC which transferred it to the Magistrates court, the order sought was merited. Counsel maintained that the evidence attached on the respondents replying affidavit can only be considered in the case before the lower court by the trial court. 2. On their part, counsel for the respondent submitted that the application was an abuse of the due process as their was delay in filing the same when the applicant has been participating in the proceedings in the lower court since 2018. 3. On whether the application was merited, counsel submitted that the question of ownership of the suit property has already been settled in a judgment by the High Court in Kakamega HCC 18 OF 2018 and that therefore the suit before the lower court is res judicata. Counsel argued that the applicant filed Kakamega Misc Application No. 57 of 2004, seeking the suit property on the doctrine of adverse possession, but that the same was dismissed. **Analysis and determination** 1. I have carefully considered the application, the replying affidavit, as well as the parties' rival submissions. The sole issue that arise for determination is whether there is justification for grant of an order for the transfer of Mumias Senior Principal Magistrate's Court Land Case No. 115 of 2018 to this Court for hearing and determination. 2. The jurisdiction of this Court to transfer suits is donated by Section 18(1)(b)(i) of the Civil Procedure Act, which empowers the Court, either on its own motion or upon the application of any party, to withdraw any suit pending before a subordinate court and transfer it to itself for hearing and determination. 3. 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 the case of **Patrick Ndegwa Munyua v Benjamin Kiiru & Another [2020] KEELC 3911 (KLR),** the Environment and Land court held that Magistrates courts have jurisdiction to hear and determine claims of adverse possession. 4. This court takes cognizance of the fact that there are also other decisions of the Environment and Land Court where it was held that Magistrates courts have no jurisdiction to hear and determine adverse possession claims, including the decision of L.N. Mbugua J. in **Philip Kithaka v Mercy Karimi Nyaga [2021] e KLR**. 5. The decisions for and against the jurisdiction of Magistrates Court to hear and determine claims concerning adverse possession being decisions of the Environment and Land Court have been the law, until the Court of Appeal settled the law in that regard, in October 2024 in the case of **Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiritu & 4 Others Civil Appeal No. E141 of 2022 [2024] KECA** where it held that Magistrates Courts have no jurisdiction to hear and determine adverse possession claims**.** 6. The circumstances of this case show that the suit sought to be transferred was initially filed in the High court in 2006. The same was transferred to the Magistrates court by this court in 2018. By 2020, the Environment and Land court made a judicial pronouncement that the Magistrates court had jurisdiction to hear and determine adverse possession claims. However, in 2024, the Court of Appeal in the **Sugawara case** settled the law that Magistrates courts have no jurisdiction to hear and determine adverse possession claims. At the time the applicant was filing his counter claim in 2007, the matter was still in the High Court which had jurisdiction to determine adverse possession claims. 7. Therefore,the pendency of Mumias PMC ELC CASE NO. 115 OF 2018 was occasioned by an order of this court transferring the same to the lower court and suit was kept in the lower court on the basis of the judicial pronouncement of this court that lower courts have jurisdiction to hear and determine adverse possession claims. Therefore, the respondent’s submissions that the applicant ought to have acted in 2018, are unjustified and cannot form the basis of blaming the applicant. On whether or not Mumias SPMC ELC Case No. 115 of 2018 is *res judicata*, I take the view that a court with jurisdiction to determine whether a case is *res judicata* or not, is the trial court. As it is, I am not the trial court yet. In these circumstances, questions of res judicata ought to be raised by way of notice of motion in Mumias SPMC ELC Case No. 115 of 2018. At this stage, the merits of that suit cannot be interrogated in the application before me. 8. For the above reasons, I find and hold that the application dated 9th June 2026 is merited and the same is hereby allowed as follows; 9. **That the Mumias Principal Magistrate Court Environment and Land Court Case No. 115 of 2018- formerly Kakamega High Court Case No. 87 of 2006 is hereby transferred to this Honourable court for hearing and determination.** 10. **Each party shall bear its own costs.** 11. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA OPEN IN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 30TH DAY OF JULY 2026** **A. NYUKURI** **JUDGE** **In the presence of;** Mr. Mukavale J. for the applicant Mr. Amuga for the respondent Court Assistant: Delphine