https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3147

Ndumba v Namaswa & another (Enviromental and Land Originating Summons E010 of 2025) [2026] KEELC 3147 (KLR) (7 May 2026) (Ruling) Neutral citation: [2026] KEELC 3147 (KLR) Republic of Kenya In the Environment and Land Court at Bungoma Enviromental and Land Originating Summons E010 of 2025 AK Bor, J May 7, 2026 Between Seme Sunguti Ndumba Plaintiff and Jackton N Namaswa 1st Defendant Emily Nekesa Mukabi 2nd Defendant Ruling 1.The Plaintiff filed the application dated 24/9/2025 seeking to have Webuye SPM ELC Case No. 14 of 2020 withdrawn and transferred to this court for hearing and disposal. He also sought to have that suit consolidated with this suit. The application was made on the ground that the magistrate’s court lacks jurisdiction to hear and determine the claim for adverse possession. Further, that the suit involved similar questions of law and fact. 2.The Plaintiff swore the supporting affidavit and urged the court to transfer that suit. He exhibited a copy of the amended plaint and defence filed before the Webuye Magistrate’s court. 3.Clemence Masinde swore the replying affidavit opposing that application. She urged the court to dismiss the application on the basis that the parties in the two suits were different and that the Webuye suit had been concluded only for the Plaintiff to seek and be granted leave to be heard in that suit. Further, that the 2nd Defendant objected to the consolidation of the two suits because they involve different parties and they seek different reliefs. 4.The application was canvassed through written submissions. The Plaintiff relied on section 18 of the CPA and argued that the subject matter in this case and the one in the Webuye Magistrate court was the land known as Ndivisi/Muchi/10527. The Plaintiff reiterated that the magistrate’s court lacks jurisdiction to entertain the claim for adverse possession while this court is clothed with the jurisdiction to hear both suits. 5.The 2nd Defendant also relied on section 18 of Civil Procedure Act and case law. She submitted that the factors to be considered in an application for transfer are the balance of convenience, questions of expense, interest of justice and the possibility of undue hardship. The 2nd Defendant maintained that the parties were different in that the Plaintiff in this case is the 1st Defendant in the Webuye Magistrate court case where the Plaintiff seeks vacant possession of the land registered in the 2nd Defendant’s name. The other point taken up by the 2nd Defendant is that the Plaintiff seeks to have the Webuye case withdrawn which would deny her justice yet she is the registered owner of the suit land and deserves to be heard and the issues raised in the Webuye suit determined on merit. 6.The issue for determination is whether the court should transfer the Webuye suit to this court for determination. The court notes that the parties in Webuye SPM ELC Case No. 14 of 2020 are Emily Nekesa Mugambi v Seme Sunguti and L.N. Nyongesa Lumbasa and the suit land is Ndivisi/Muchi/2700, which was subdivided to create Ndivisi/Muchi/10527 registered in the 2nd Defendant’s name. In that suit, the Plaintiff pleaded that Seme Sunguti had encroached on Ndivisi/Muchi/10527. That parcel of land forms the subject matter of this suit, in which the Plaintiff claims to have acquired adverse possession of. 7.Webuye SPM ELC Case No. 14 of 2020 will be transferred to this court for hearing and determination with this suit.The costs of the application will be in the cause. DELIVERED VIRTUALLY AT BUNGOMA THIS 7TH DAY OF MAY 2026.K. BORJUDGEIn the Presence of:Mr. David Ingosi for the PlaintiffMs. Clemence Masinde for the 1st DefendantCourt Assistant- Josephat BettNo appearance for the end Defendant