Amasitsa v David (Environment and Land Case E003 of 2025) [2025] KEELC 8215 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that land cases involving adverse possession must be handled by the ELC, not magistrates' courts, following a 2024 Court of Appeal ruling.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant deserves the orders sought
Key legal issues
#Whether the applicant deserved an order transferring Butali SPMCELC No. 47 of 2021 (which includes an adverse possession counterclaim) to the ELC
Application allowed; the suit was transferred because at filing in 2021 magistrates' courts had jurisdiction over adverse possession claims per the 2020 ELC decision, but after the Court of Appeal's October 2024 decision those courts lack such jurisdiction, so transfer to the ELC is proper.
The court traced the jurisdictional position: in 2020 the ELC held magistrates' courts could determine adverse possession claims, and suits filed between 2020 and October 2024 were lawfully before magistrates. However, in October 2024 the Court of Appeal held magistrates' courts have no jurisdiction over adverse possession claims. Since the counterclaim in Butali SPMCELC 47 of 2021 is based on adverse possession and the law has changed, transfer to the ELC for hearing and determination is proper.
Whether the res judicata objection arising from ELC Case No. 130 of 2018 could defeat the transfer application
The res judicata argument, though open to the respondent, could only be entertained in the underlying suit and not in the transfer application.
The court held that while the respondent may argue the Butali claim is res judicata given the earlier dismissed ELC suit, the proper forum for that plea is the suit itself, now the ELC. Raising it at the transfer stage after four years and with defences closed was misplaced; only a court with jurisdiction over the suit can pronounce it res judicata.
Legal principles established
#- The High Court/ELC has power under section 18 of the Civil Procedure Act to transfer a matter from a lower court to itself.
- Section 38(1) of the Limitation of Actions Act confers jurisdiction over adverse possession claims on the Environment and Land Court.
- A plea of res judicata against a transferred suit must be raised and determined in the suit itself, not in the transfer application.
Court orders
#- 1.Butali SPMELC Case No. 47 of 2021 is transferred to the Environment and Land Court for hearing and determination
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 18 of the Civil Procedure Act (power to transfer suits from subordinate courts)
Relief refused
#Costs of the application
The court made no order as to costs.
Costs
No order as to costs - each party to bear own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the Court of Appeal in the case of Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiritu & 4 Others Civil Appeal No. E141 of 2022, delivered in October 2024, held that Magistrates Courts have no jurisdiction to hear and determine claims based on adverse possession.
the question of whether or not that suit is res judicata can only be determined within that suit and not in the instant application.
In the result, Butali SPMELC Case No. 47 of 2021 is hereby transferred to this court for hearing and determination. I make no order as to costs.
Issues in the judgment
#Internal inconsistency in the number/year of the earlier ELC case - referred to variously as ELC Case No. 130 of 2018 and ELC 130 of 2016.
Same internal inconsistency, later passage.
Names of the applicant and respondent are not stated anywhere in the judgment as provided.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amasitsa v David (Environment and Land Case E003 of 2025) [2025] KEELC 8215 (KLR)", Case Analysis (2025). Not stated in judgment (application dated 12th May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8215/eng@2025-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.