Njoka v Mutua (Sued as the Legal Representative of M’Nabea M’Aringai) (Environment and Land Miscellaneous Application E011 of 2025) [2026] KEELC 378 (KLR)
The bottom line
#A Kenyan court can transfer a land case out of a magistrates' court when adverse possession is raised, but an independent adverse possession counterclaim filed there is struck out.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Chuka CMC E & L Case No. 55B of 2019 can be transferred to the Environment and Land Court on account of lack of jurisdiction by the lower court to entertain the issue of adverse possession introduced through a defence and counterclaim
Key legal issues
#Whether the entire cause in the subordinate court became a nullity for want of jurisdiction once adverse possession was pleaded
Only the independent counterclaim for adverse possession is incompetent; the primary claim and the defence of limitation remain competent and transferable
The court held adverse possession has two facets: a cause of action culminating in adverse possession orders, and a defence to a claim for recovery of land. The respondent's suit was competent when filed; jurisdiction issues arose only when the defence of limitation was pleaded. The defence remains competent, but the counterclaim as an independent claim lodged in a court without jurisdiction cannot be transferred.
Whether a defendant with a crystallised adverse possession claim is shut out where the landowner sues in a subordinate court
No; the defendant may plead limitation as a defence and seek transfer to the Environment and Land Court
The court declined to read the Court of Appeal jurisprudence as shutting a defendant out of the seat of justice. The defendant is entitled to plead the defence and move for transfer, and may later seek leave to file a fresh counterclaim after transfer.
Legal principles established
#- A defendant may plead the defence of limitation (adverse possession) and then move the Environment and Land Court for transfer; the original claim survives while an independent counterclaim for adverse possession filed in a subordinate court is incompetent
Court orders
#- 1.The primary suit together with the corresponding defence and reply to defence in Chuka CMC E&L Case No 55B of 2019 is transferred to the Environment and Land Court at Chuka
- 2.The counterclaim is marked 'struck out' for want of jurisdiction prior to the transfer
- 3.The applicant is at liberty to move the Environment and Land Court for leave to bring a fresh counterclaim once the cause is transferred and registered
- 4.Each party to bear their respective costs of the counterclaim and the present application
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
Relief refused
#Transfer of the counterclaim for adverse possession
The counterclaim is an independent cause of action lodged in a court without jurisdiction and is therefore incompetent
Costs
Parties will bear their respective costs of the ill-fated counterclaim and the present application
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.
I would allow transfer of the primary suit together with the corresponding defence and reply to defence in Chuka CMC E&L Case No 55B of 2019.
Further, because the said counterclaim is in the same cause that is to be transferred, it will be marked "struck out" for want of jurisdiction prior to the transfer.
The applicant will be at liberty to move the Environment and Land Court for leave to bring a fresh counterclaim once the cause is transferred and registered in the Environment and Land Court.
parties will bear their respective costs of the ill-fated counterclaim and the present application.
Issues in the judgment
#The respondent is never named in the judgment; the ruling refers only to 'the respondent', though counsel firm M/s Muthomi Gitari LLP is named and the respondent appeared in person at delivery
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoka v Mutua (Sued as the Legal Representative of M’Nabea M’Aringai) (Environment and Land Miscellaneous Application E011 of 2025) [2026] KEELC 378 (KLR)", Case Analysis (2026). Chuka CMC E & L Case No 55B of 2019 (transfer application, notice of motion dated 4/7/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/378/eng@2026-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.