https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3825

Murunga (Suing in His Personal Capacity and as the Legal Representative of the Estate of Boniface Ipomai-Deceased) v Naliaka (Environment and Land Case E010 of 2025) [2026] KEELC 3825 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEELC 3825 (KLR) Republic of Kenya In the Environment and Land Court at Busia Environment and Land Case E010 of 2025 L Waithaka, J May 20, 2026 IN THE MATTER OF ASCERTAINMENT OF OWNERSHIP OF THE WHOLE OF L.R NO.NORTH TESO/KOCHOLIA/895 BY WAY OF ADVERSE POSSESSION Between Moses Murunga (Suing in His Personal Capacity and as the Legal Representative of the Estate of Boniface Ipomai-Deceased) Applicant and Resilah Naliaka Respondent Ruling 1.Vide a Notice of Motion dated 7th July 2025, Moses Murunga who is the applicant herein, seeks an order for withdrawal and transfer of Malava PMC ELC Case No.E021 of 2024 to this court for purposes of consolidation and hearing alongside the instant suit. 2.The application is premised on the grounds that the two suits are in respect of the parcel of land known as North Teso/Kocholia/895; that the plaintiff in the suit pending before the lower court seeks an order of eviction of the applicant from the suit property on the ground that the applicant is a trespasser to the suit while in the instant suit, the applicant seeks to be declared as the owner of the suit land on the grounds that he has acquired interest thereto on account of having been in adverse possession thereof; that the lower court has no jurisdiction to hear and determine the applicant’s claim for adverse possession and that the orders sought shall meets the ends of justice. 3.The respondent filed a replying affidavit, sworn on 3rd March 2026 in which she inter alia deposes that she opposes the application. However, on 20th April 2026, counsel for the respondent informed the Court that the respondent is not opposed to the application. 4.I have read and considered the circumstances leading to the filing of the instant application namely the applicant’s desire to have the issues raised in the suit filed before this court and the issues raised in the suit pending before the lower court, which issues are related and touch on the same parties and the same parcel of laand, heard and determined together by a Court with competent jurisdiction to hear and determine the issues raised or arising from both suits. 5.Section 18 of the Civil Procedure Act bestows upon the High Court (read Environment and Land Court) the powers to transfer suits of a civil nature. The said provisions of the law provide:(1)On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage -(a)transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or(b)withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter -(i)try or dispose of the same; or(ii)transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or(iii)retransfer the same for trial or disposal to the court from which it was withdrawn.(2)Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. 6.Under Section 13 (2) of the Environment and Land Court Act, this court has a broad mandate to deal with disputes relating to title, tenure, boundaries, rates valuations, adverse possession among others. The Magistrates under Section 26 of the same Act can hear and determine land cases subject to their pecuniary limits and nature of the claim. Looking at the orders sought in the Defence and Counterclaim in Malaba SPMC E021 of 2024, the magistrate court has no jurisdiction to hear and determine the suit filed before that court. Having confirmed that the suit property in the two suits is the same and to save on time, cost and avoid issuance of conflicting orders, I see no harm in transferring and consolidating the two suits as the orders sought in the suit before the magistrate court are for a permanent injunction and eviction and the instant suit seeks orders of ownership by adverse possession. 7.Under the Civil Procedure, ordinary applications touching on issues arising in the suit before the court, are filed via chamber summons or notice of motion. These include requests for interlocutory injunctions, striking out pleadings, joining or substituting parties, seeking summary judgment, setting aside or varying judgments, amendment of plaint or defence among others. 8.There are some applications which are filed incidental to the suit because they are not part of the main suit. These are filed as miscellaneous applications and are separate proceedings from the main suit to address issues like advocate/client bill of costs, registration of foreign judgments, leave to appeal out of time, transfer of cases, anticipatory bail among others. They are generally filed through a notice of motion supported by a supporting affidavit and annexures and do not require a pre-existing dispute before them but require an applicant to justify their need to the court. 9.The instant application is one such application. In the instant case, the plaintiff/applicant filed the application in this suit instead of filing it as a separate proceeding by way of miscellaneous application. Consequently, I strike out the application with no orders on costs and direct the applicant to file a miscellaneous application seeking to transfer the suit before Malaba SPM’S Court to this Court. 10.Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT BUSIA THIS 20TH DAY OF MAY, 2026.L. N. WAITHAKAJUDGEIn the presence of:-N/A for the Applicant.Mr. Bwo’nchiri for the RespondentCourt Assistant: Tracy