https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3520

Chelagat v Kemboi (Environment and Land Miscellaneous Application E009 of 2025) [2026] KEELC 3520 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEELC 3520 (KLR) Republic of Kenya In the Environment and Land Court at Kapsabet Environment and Land Miscellaneous Application E009 of 2025 GMA Ongondo, J June 9, 2026 Between Sally Chelagat Applicant and Kiprotich Kemboi Respondent Ruling 1.The right to fair hearing is rooted in Article 50 (1) of the Constitution of Kenya 2010 (The Constitution herein). 2.Notably, the Applicant, SALLY CHELAGAT through Rotich, Langat and Partners Advocates generated an application dated 10th February 2025 seeking the orders infra;a.Spentb.This Honourable court be pleased to issue orders transferring the cause Kapsabet CMELC No. 32 of 2019: Kiprotich Arap Kemboi versus Sally Chelagat filed in the Chief Magistrate’ court at Kapsabet (The suit herein) to the Environment and Land Court of Kenya at Kapsabet to allow fair, just, equitable and expeditious disposition of the cause. 3.The application is premised upon eight grounds stated on the face of the same as well as the applicant’s supporting affidavit of nine paragraphs and copies of defence and counter claim (SC-1 (a) and (b) annexed to the affidavit. In summary, the applicant’s lamentation is that she was sued by the respondent over ownership of suit land reference number NANDI/KOMBE/275. That she has never been in occupation of the suit land since she was born in 1975 to date thus, she opposed the suit and counter claims for adverse possession over the land. 4.The respondent opposed the application vide a Replying Affidavit of 27 paragraphs sworn 11th March 2025 by Barnaba Kipsang Rotich who obtained Limited grant of letters of Administration Ad Litem in respect of the Estate of his deceased father/ original respondent namely John Kiprotich Arap Kemboi alias Kiprotich Arap Kemboi issued in Kapsabet PM’s Court Ad Litem No. E006 of 2023 through K Sego and Company Advocates, it averred , inter alia, that this court has no jurisdiction to transfer the suit which is not lawful. That it is only the High Court that has power under Order 37 (7) of the Civil Procedure Rules 2010 to transfer the suit hence, the application is an abuse of the court process. That the counter claim for adverse possession is a nullity ab initio. That the respondent was to be served within two days from 20th February 2025 for hearing on 25th February 2025 as per court’s directions hence, service done upon him on 3rd March 2025 was null and void. 5.In the supplementary affidavit dated 26th March, 2026, the Applicant rebutted the respondent’s contention in the replying affidavit and implored this court to allow the application as the respondent will be given an opportunity to be heard in the suit by this court which has jurisdiction over the same. She stated that her counterclaim raised issues of adverse possession hence, the court has jurisdiction to hear and determine matter further to section 18 of the Civil Procedure Act Chapter 21 Laws of Kenya, the Court of Appeal decision in Pauline Chemuge Sugawara vs Nairuko Mutarakwa 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 [2024] KECA 1417 (KLR) and section 38 of the Limitation of Actions Act Chapter Laws of Kenya. 6.Initially, the application was allowed in terms of prayers 2 and 3 on 4th March 2025. However, the orders were set aside on 19th March 202 further to the application dated 28th June 2025 that the orders had been spent, among others, hence, precipitating the present ruling. 7.Hearing of the application was by way of written submissions further to the orders of 19th March 2026 and pursuant to Order 51 Rule 16 of the Civil Procedure Rules 2010 and this Honourable Court’s directions given on 28th May 2025. 8.By the applicant’s submissions dated 7th April 2026, reference was made to the principal order sought in the application, the replying and supplementary affidavits, the applicant’s case and three issues for determination including whether this court has jurisdiction to transfer the suit. Counsel submitted that this court has the jurisdiction to transfer the suit under sections 1A, 1B and 18 of the Civil Procedure Act Chapter 21 Laws of Kenya, Article 162 (2) (b) of the Constitution, and section 38 of the Limitation of Actions Act Chapter 22 Laws of Kenya. 9.To fortify the submissions, counsel cited, inter alia, Sugawara case (supra) and Hangzhou Agrochemicals Industries Ltd vs Panda Flowers Ltd (2012) eKLR on adverse possession and adverse possession. That in the case of Owners of Motor Vessel ‘Lilian S’ vs Caltex Oil (Kenya) Ltd (19890 1 KLR, the Court of Appeal noted;‘Jurisdiction is everything. Without it, a court has no powers to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of the proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion 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…” 10.The respondent’s counsel failed to file submissions in respect of the application. 11.In the foregone, I embrace the issues for determination delineated in the applicant’s submissions which boil down to whether this Honourable court is seized of the jurisdiction to transfer the suit. 12.It is the respondent’s contention that this Honourable court has no jurisdiction to transfer the suit as sought in the application. The applicant vehemently asserted otherwise. The term ‘Jurisdiction’ refers to a court’s powers to decide case or issue a decree; see the case of Owners of Motor Vessel “Lilian S” (supra). 13.In the case of Samuel Kamau Macharia and another vs Kenya Commercial Bank & 2 others [2012] KESC 8 (KLR) at page 68, the Supreme Court of the Republic of Kenya stated;‘A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law……’ 14.Again, the Supreme Court of Kenya in the case of Republic -vs- Karisa Chengo & 2 others {2017} KESC 15 (KLR), remarked that;‘…..Lack of jurisdiction thus renders a court’s decision void as opposed to it being merely voidable. When an act is void, it is a nullity ab initio. It cannot found any legal proceedings and Lord Denning’s decision in the Privy Council case of Benjamin Leonard Macfoy United Africa Company Limited (UK) {1962} AC 152 succinctly makes this point…..’ 15.The jurisdiction of this Honourable court is enshrined in Article 162 (2) (b) of the Constitution of Kenya 2010 as read with section 13 of the Environment and Land Court Act 2015 (2011). The suit together with the counter claim relate to title to the suit land which is within the jurisdiction of this Honourable Court. 16.Further, by the defence and counter claim in the suit, the applicant claims ownership of the suit land by adverse possession. 17.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 [2024] KECA 1417 (KLR) at paragraph 50, the Court of Appeal held;‘…..in view of the express provisions of section 38 of the Limitation of Actions Act as did the Environment and Land Court, we find that Magistrates’ Courts do not have jurisdiction to determine claims of adverse possession………….’ 18.In the circumstances, this Honourable court has the jurisdiction to transfer the suit from the magistrate’s court which is devoid of jurisdiction thereof in consonant with sections 1A, 1B, Article 50 (1) (supra) and Article 159 (2) (b) of the Constitution. 19.Moreover, section 18 of the Civil Procedure Act (supra) provides;“The High Court (Sic this court under Article 162 (2) (b) of the Constitution of Kenya 2010) shall have the powers on the application of either of the parties, and/or on its own motion with notice to such parties to:a.To transfer any suit, appeal or proceedings pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same.b.Withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter try or dispose of the same; or transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or retransfer the same for trial or dispose to the court from which it was withdrawn…” 20.The revelation from copies of documents annexed to the supporting affidavit in support of the application and the replying affidavit is that the subject suit is Kapsabet CMELC No. 32 of 2020: Kiprotich Arap Kemboi versus Sally Chelagat and not No. 32 of 2019 as erroneously captured in the application. Therefore, the said technical error is cured under Article 159 (20 (d) of the Constitution and sections 3 and 19 of the Environment and Land Court Act 2015 (2011) herein. 21.In the result, the application dated 10th February 2025 is merited and the same be and is hereby allowed in the following terms;a.Orders transferring the cause namely Kapsabet CMELC No. 32 of 2020: Kiprotich Arap Kemboi versus Sally Chelagat filed in the Chief Magistrate’ court at Kapsabet to the Environment and Land Court of Kenya at Kapsabet to allow fair, just, equitable and expeditious disposition of the cause.b.The costs of the application be in the cause. 22.It is important to note that on 19th May 2026 a Ruling Notice dated 18th May 2026 was duly served upon the respondent’s counsel via email in line with Article 50 (1) (supra) as demonstrated in the affidavit of service sworn on 19th May 2026 by Moses K. Rotich learned counsel for the applicant hence, ruling delivered accordingly. 23.It is so ordered. DATED AND DELIVERED AT KAPSABET THIS 9TH DAY OF JUNE 2026.HON. G M A ONG’ONDOJUDGEIn the presence of;1. Mr. Moses Rotich learned counsel for the Applicant3. Mr. Walter Kipkorir, Court Assistant