https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3283

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT HOMABAY** **ELC MISC. APPLICATION NO. E058 OF 2025** **SUSAM MORAA OBANDE…………………………………..1ST APPLICANT PHILIP OTIENO OBANDE………………………………...2ND APPLICANT** **DAVID OYITE OBANDE……………………………..……..3RD APPLICANT** **VERSUS** **RUTH ATIENO RONGA…………………………………..…..RESPONDENT** **RULING** **(On transfer of suit)** 1. By a Notice of Motion dated 19th November 2025 the applicants moved this Court under Section 3A, Civil Procedure Rules (sic), Section 1A and 1B of the Civil Procedure Act, Section 7(1)(b) of the Magistrate Court Act Chapter 10 Laws of Kenya, Sections 7 and 38 of the Limitation of Actions Act, Chapter 22 Laws of Kenya, Section 13(1)(2) of the Environment and Land Court Act and all enabling provisions of law. They sought the following orders: 2. **…Spent** 3. **That this honorable court do order the transfer of** **Oyugis ELC E064 of 2024 Ruth Atieno Ronga vs Susan Moraa Obande and 2 others, a matter pending before Senior Principal Magistrate to the ELC Homabay that has jurisdiction on matters pursuant to Section 38 and 7 of the Limitation of Actions Act.** 4. **That upon granting prayer (b) above the matter be mentioned before the Honorable Judge for directions accordingly.** 5. **Costs of the application to be in the cause.** 6. The application was based on grounds on the face of it and indicated to be supported by an Affidavit sworn by learned counsel Cephas Agure but it was actually supported by an Affidavit sworn by the 1st Applicant, Susan Moraa Obande. 7. The grounds were that at the time of filing the suit sought to be transferred, matters of adverse possession were adjudicated before the lower courts until a ruling was given regarding Section 38 of the Limitation of Actions Act. The Defendant therein had raised an issue of adverse possession through their Defense and Counterclaim. The hearing had proceeded to the Defence stage when the Applicants could not proceed because their Defence was anchored on Section 38 of the Limitation of Actions Act. Therefore, the trial court had no jurisdiction hence this application. The application was urgent because the lower court matter was being mentioned on 2nd December 2023 (sic) before honorable court at Oyugis to confirm the filing and transfer of the suit to this court. The application ought to be hard expect for convenience and speedy transfer of the suit. 8. They Supporting Affidavit sworn by Susan Moraa Obande on the same date of as the application reiterated the contents of the grounds in support of the application save that the deponent added that she had filed a Defense and counterclaim, a copy of which she annexed as SMO 1. Further, the matter had proceeded for until it was scheduled for Defense hearing when her advocate raised the issue of jurisdiction in it after upon the ruling (*sic*) on Section 38 of the Limitation of Actions Act being made. Thus, the stayed the matter pending the filing of the instant application. 9. The application was purported or said to be opposed by the Respondent. This states so because prior to the hearing of the application the first document filed by or on behalf of the Respondent by the firm of Alphonse Barrack and Associates, was a Replying Affidavit sworn by her on 10th December 2025. It was filed on 16th December 2025 at 08:24 AM. The said firm also filed written submissions dated 31st January 2026 on 1st February 2026 at 23:54 hours. Further, they filed on the same date as the submissions but at 23:58 hours a List of Authorities dated 31st January 2026. Then, the said firm filed a Notice of Appointment dated 21st November 2025 on 2nd February 2026 at 09:04 AM. 10. Clearly, the three documents being the Replying Affidavit, the written Submissions and List of Authorities purported to have been validly filed by the respondent before she appointed the firm that filed them on her behalf were irregularly before the court. They were filed by a stranger and their validity or regularity on the record could not be salvaged retrogressively by the Notice of Appointment filed afterwards. Additionally, representation and presence before the court by any party is a material fact that cannot be wished away or even cured by Article 159(2)(d) of the Constitution. It is not a mere technicality but a fundamental mistake that goes to the root of pleadings filed. Therefore, the three documents were filed by a stranger purporting to act on behalf of the Respondent. 11. In my view the documents there cannot found an opposition to the application. Essentially, they are illegally or irregularly on the record and are struck out. Further, I have perused the record. There is nowhere and at no point in time did the respondent seek to regularize the position of the three documents. At any rate, even if she were to do so, having filed the documents illegally that could not be possible, in terms of the legal position stated by the Supreme Court in the Nicholas Kiptoo Arap Korir Salat v. IEBC & 7. Others; SC Application No. 16 of 2014; [2014] eKLR decision where it emphasized that documents filed without leave of the court are constitute an illegality and cannot be regularized by a subsequent application. Thus, herein, only fresh ones would have been filed after Advocate had been appointed. None was filed. 12. The above being the position, it leaves the application unopposed and the facts deposed thereto uncontroverted. 13. It is worth of note that aside from the flaw by the Respondent, the applicant filed written submissions dated 2nd February 2026. In them, he argued that Section 3A of the Civil Procedure Act provided that nothing in this Act should limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court while Section 1A was on the overriding objectives of the which were to facilitate the just, expeditious, proportionate and affordable resolutions of the civil disputes governed by the Act. Section 1B was along the same lines but for the efficient disposal of the business of the court. 14. He then argued that Section 38 of Limitation of Actions Act provided for claims on adverse possession and was to the effect that the High Court was the one to handle the matters. He reproduced the provision. He added that Section 7 of the Act was about non recovery of land after 12 years of non occupation of it and the occupation thereof by another without his permission. He added the provisions of Section 13(1) (2) of Environment and Land Act which now clothes this Court under Article 162(2)(b) of the Constitution to handle such disputes. Having summarized that the application was about, he added that issues of jurisdiction are of great concern and could not be wished away. Therefore, he prayed for the transfer as it is a matter of Law. He relied on the case of GITONGA -VS- M'MWIRICHIA & ANOTHER (Environment and Land Appeal 31 of 2023) /2025/ K EELC 395 (KLR) (5 February 2025) (Judgment). He added the import of Articles 40(1), Article 159(1) and 50 of the Constitution 2010 and prayed that the Court allows the Applicants be heard on their Defence and Counter-claim. **ISSUE**, **ANALYSIS AND DETERMINATION** 1. This court having considered the above position and arrived at the finding that the application is not opposed, it does not leave the applicant without discharging the burden of proof to the required standard of a balance of probability on the merits of the application. Therefore, I am obligated to consider the merits of the application. 2. This court has considered the application the law under the submissions of the parties. It would do well note that in this country, the issue of jurisdiction of courts in determining matters of adverse possession has a past history in this country. For a long time, up to the 11th October 2024, despite the clear provisions of Sections 37 and 38 of the Limitation of Actions Act, confusion reigned in the subordinate and superior courts in Kenya regarding on whether or not the Magistrates Courts had jurisdiction to hear and determine claims of adverse possession. One school of thought held in the superior courts that magistrates had jurisdiction while another held otherwise. 3. In the school that held a positive view over the same would be found decisions such as Christopher Kangogo Cheboiboch v Susan Chepichi Chepkiyeng [2021] eKLR; Philip Kithaka v Mercy Karimi Nyaga [2021] eKLR; and Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & another [2020] eKLR. In the other school of thought would be found decisions such as Njoki Wainaina v Josephat Thuo Githachuri & 3 others; National Land Commission & another (Interested Parties) [2021] eKLR; Michael Chebii Toroitich v Peter Mogin Yatich Chebii [2013] eKLR; and Jesee Njoroge Gitau v Kibuthu Macharia & another [2019] eKLR; and Reuben v Mwangangi & 7 others (Environment & Land Case E011 of 2023) [2023] KEELC 21899 (KLR), among others. 4. While this Court held the humble view as that of the latter school of thought, that is to say, that a plain textual reading of Section 38 of the Act in issue rendered the meaning that only the superior court, being the High Court prior to the establishment of the Environment and Land Court post the 2010 Constitution, my view would only have been persuasive to that of my brother and sister colleague judges were I to be in the present position as I am. That would have still created another of the many voices wallowing in miasma of the confusion that prevailed at the time. 5. It needed a court of higher hierarchy to call the superior court voices to order. That is where the Court of Appeal holding in Sugawara v 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) comes in handy to clear the confusion. What I mean to say is that it excites when one knows that that their view finds approval by one duly mandated to so do. Thus, from the 11th October 2024 the position is now clear, that Section 38 of the Limitation of Actions Act provides that only the ELC has the original jurisdiction to hear and determine adverse possession claims. 6. The above history then brings into focus the facts of the instant application. It is clear that Case Number Oyugis SPM ELC E064 of 2024 was filed, and proceeded in part for hearing before the trial magistrate before the 11th of October 2024 Sugawara v Kiruti (supra) decision. In that case a Counterclaim had been filed in which the defendants who were in danger of eviction that would result of a possible decision out of a successful litigation of the said Oyugis SPM ELC case. They, thus, filed a Defense and Counterclaim for adverse possession of the portion of land they allegedly were in occupation. Does that then disentitle them from making a prayer that the suit wherein there was a Counterclaim raising an issue that who would lace the matter outside of the jurisdiction of that trial court be shut out from moving this court accordingly? The answer lies in understanding the interrelationship between a suit and Counterclaim. 7. Of the nature of a Counterclaim, **Sir Dinshah Fardunji Mulla,** in “**The Code of Civil Procedure, 18th Edition, 2011**” at page **1928** writes that “*A Counterclaim has the effect of cross-suit but only one final judgment is to be pronounced in the suit on the original claim of the Plaintiff and the Counterclaim of the Defendant.*” 8. In the Court of Appeal case of ***Willam Koross v Hezekiah Kiptoo & 4 others, C.A. No. 223 of 2013*** which stated that *“…Before delving into res judicata proper, we need to state that there cannot properly be two judgments, and contradictory ones at that, in the same suit. The presence of a counterclaim in a suit, while essentially amounting to a cross-suit, does not give rise to a separate, stand-alone second judgment. A counterclaim never stands on its own and cannot be a pleading independent of a defence*.” 9. **Order 7 Rule 13** of the **Civil Procedure Rules** provides as follows: “*Discontinuance, stay or dismissal of suit.* *13.* *If, in any case in which the defendant sets up a counterclaim the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with*.” 1. When the provision reproduced above is looked at from the prism of the **Limitation of Actions Act**, it becomes clear that a Counter-claim is separate or independent of the suit. However, once tried together, it gives rise to one judgment. This is because the law acts in synchrony. In a functioning legal system which esteems the rule of law, laws ought to be unitary in terms of purpose for the well-functioning of society. The law cannot and should never provide for one issue in two different ways. That would be a recipe for chaos: it would be a precursor for disobedience of the law. But it is correct to argue that a counterclaim can be treated as a cross suit, as was held by the Supreme Court of India in ***Sh. Jag Mohan Chawla & another v Dera Radha Swami Satsang & Ors.*** 2. With the above elucidation in mind, this court has considered the application. I have pointed out above, for a long period, almost ten years now until the Sugawara decision (supra), confusion reigned on Kenya as to which court had the jurisdiction to handle disputes of the nature that deprives the trial court of jurisdiction. Many subordinate courts handled and determined many adverse possession claims then, and such decisions have been implemented and some were affirmed by the courts of equal status or the ELC. They have been implemented and are ‘resting’. Since the Sugawara decision has now settled the issue, what then becomes of such decisions that were made from subordinate courts and are resting? Do they get revived, reviewed and set aside or declared a nullity? In my humble view that cannot be the road the legal system should trudge, otherwise it will open the biggest pandoras’ box. Instead, the best and efficacious step is to wink and move on just as the Holy Bible provides with regard to those people whose did not know the law. It is written in Acts 17:30 and 31 as follows: “*30 And the times of this ignorance God winked at; but now commandeth all men every where to repent: 31 Because he hath appointed a day, in the which he will judge the world in righteousness by that man whom he hath ordained; whereof he hath given assurance unto all men, in that he hath raised him from the dead.*” 1. By the same token, and in the interest of justice in regard to the instant application, when parties filed adverse claims during the time of confusion as to which court would handle such disputes, they were excused and the disputes were either settled or determined. It should therefore be that this Court should wink at this error regarding the instant subject as the adverse claim was filed way before the decision that clarified the position of the jurisdiction of the lower courts in such claims. Why do I say so? 2. The suit sought to be transferred was filed in the year 2024 and the Defence and Counterclaim thereto filed on or about 13th September 2024. It raised the claim of adverse possession. That was before the decision of *Sugawara* (supra) was rendered by the Court of Appeal, clarifying the position of the law regarding Section 38 of the Limitation of Actions Act. 3. I have considered the submissions by learned counsel. It is not denied that when the matter was proceeding before the trial Court, at no point in time did the Plaintiff raise the issue of Jurisdiction of the Court before the decision of the *Sugawara* case. In my humble view, while it is clear that parties do not confer the jurisdiction of the Court, the fact that the Plaintiff did not raise the issue immediately the Counterclaim was raised means that he too was of the view then that the trial court had jurisdiction until the Court of Appeal brought out a clear position on the issue. Thus, while this Court is not conferring any jurisdiction to the lower court on adverse possession disputes, it would be in the interest of justice to grant the order of transfer of the suit from the subordinate court to this one which has jurisdiction for determination. While regarding the filing of documents without proper appointment of counsel being made the constitutional provisions of Article 159(2)(d) would not cure it, this transfer sought and granted is one of those the provision, Section 3A of the Civil Procedure Act, and the wider interests of justice permit that it be given. Accordingly, I order that **Oyugis ELC E064 of 2024 Ruth Atieno Ronga vs Susan Moraa Obande and 2 others be transferred to this Court for hearing and determination.** 4. The Costs of this application shall be in the cause. This file is hereby closed forthwith. 5. It is so ordered. Ruling dated, signed and delivered virtually via the Teams Platform this 7th day of May 2026. **Hon. Dr. *iur* Nyagaka** **Judge** I**n the presence of**, Mr. Agure Advocate for the Applicants Mr. Alphonse Barrack Advocate for Respondent