https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3717
Because the counterclaim pleaded adverse possession and registrable prescriptive rights, the Magistrate’s Court lacked jurisdiction under section 38 of the Limitation of Actions Act. The proper forum was the Environment and Land Court, so the suit was transferred there for hearing and determination. The merits of...
Source-derived case information.
- Citation
- [2026] KEELC 3717 (KLR)
- Parties
- 1st Applicant: Topisterviler Odhiambo Sule; 2nd Applicant: Omondi Sule; 3rd Applicant: Christina Lila Sule; 4th Applicant: Rosabella Sule; 1st Respondent: George Ngeso Miruka; 2nd Respondent: Janes Andiego Miruka Thomas
- Court
- Environment and Land Court
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application E052 of 2025
- Procedural Posture
- Environment and Land Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- Application allowed
- Judges
- ["E Asati"]
- Legal Topics
- Transfer of Suit, Jurisdiction of Magistrates' Court, Environment and Land Court Jurisdiction, Adverse Possession, Counterclaim, Prescriptive Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Topisterviler Odhiambo Sule
1st Applicant
Omondi Sule
2nd Applicant
Christina Lila Sule
3rd Applicant
Rosabella Sule
4th Applicant
George Ngeso Miruka
1st Respondent
Janes Andiego Miruka Thomas
2nd Respondent
Procedural Posture
Environment and Land Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the Magistrate’s Court had jurisdiction to determine the counterclaim founded on adverse possession and prescriptive rights.
- 2 Whether the underlying suit should be transferred from Kisumu CMC EL Case No. E094 of 2023 to the Environment and Land Court.
- 3 Whether costs should follow the application or be in the cause.
Ratio Decidendi
Because the counterclaim pleaded adverse possession and registrable prescriptive rights, the Magistrate’s Court lacked jurisdiction under section 38 of the Limitation of Actions Act. The proper forum was the Environment and Land Court, so the suit was transferred there for hearing and determination. The merits of the adverse possession defence and counterclaim were expressly left to be decided in the transferred suit.
Court Disposition
Application allowed
Orders
- Kisumu CMC EL Case No. E094 of 2023 is transferred to the Environment and Land Court, Kisumu for hearing and determination.
- No orders as to costs.
Full Case Text
Judgment text and source record
1 paragraphs
Sule & 3 others v Miruka & another (Environment and Land Miscellaneous Application E052 of 2025) [2026] KEELC 3717 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELC 3717 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Miscellaneous Application E052 of 2025 E Asati, J June 18, 2026 Between Topisterviler Odhiambo Sule 1st Applicant Omondi Sule 2nd Applicant Christina Lila Sule 3rd Applicant Rosabella Sule 4th Applicant and George Ngeso Miruka 1st Respondent Janes Andiego Miruka Thomas 2nd Respondent Ruling 1.The application the subject of this ruling is dated 24th October, 2025, brought by the Applicants pursuant to the provisions of sections 1A, 1B, 3A & 18 of the Civil Procedure Act Cap 21 Laws of Kenya and Order 51 Rule 1 of the Civil Procedure Rules. 2.The application seeks an order of transfer of Kisumu CMC EL Case No.E094 OF 2023 to the ELC Kisumu for hearing and determination and an order that costs of the application be in the cause. 3.The grounds upon which the application is brought are that the Magistrate’s Court does not have jurisdiction to hear the case in view of the counterclaim filed by the Applicants. That the Applicants have been in occupation of a portion of the land parcel No. Kisumu/konya/286 measuring 0.17Ha for a period stretching to over 12 years; hence the cause of action can be litigated in this court. 4.The application was supported by the averment in the Supporting Affidavit of the 1st Applicant sworn on 25th October, 2025. 5.The application was opposed vide the grounds of opposition contained in the Replying Affidavit sworn on 5th May, 2026. 6.The Respondents’ case is that the defence of adverse possession cannot arise because the Respondents became the owners of the suit land in the year 2023. 7.Copies of the pleadings in the suit sought to be transferred to this court are attached to the Supporting Affidavit. The statement of defence of the Defendants and counterclaim is one of such pleadings attached. The Applicants have pleaded in the counterclaim that members of their family and themselves have had occupation of the suit land since the year 1958. 8.By way of the counterclaim, they sought orders, inter alia, a declaration that they have acquired proprietary interest and rights as adverse possessors and have also acquired registrable prescriptive rights. 9.Under the provisions of section 38 of the Limitation of Actions Act, the Magistrate’s court lacks jurisdiction to hear and determine the claim in the counterclaim. The Applicants are entitled to present their defence (which includes the defence of adverse possession) to the Respondent’s claim in the suit. Whether the defence/counterclaim of adverse possession has merits or not will be a matter for determination in the suit.I find that the application has merit and hereby allow it as followsi.Kisumu CMC EL Case No. E094 OF 2023 is transferred to the Environment and Land Court KISUMU for hearing and determination.ii.No orders as to costs.Orders accordingly. RULING DATED AND SIGNED AT KISUMU, DELIVERED VIRTUALLY THIS 18TH DAY OF JUNE 2026.E. ASATI,JUDGE.In the presence of:Atika - Court Assistant.No appearance for the Applicants.No appearance for the Respondents.