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ELCDismissedNotice of Motion dated 20/5/2025 (arising from Siaya SPMC ELC Case No E065 of 2021, James Onyango Obondi v Jmicahel Okumu Oriaro, Sylvanus Oriaro Okumu and George Obiero Okumu)

Oriaro & 2 others v Obondi (Environment and Land Miscellaneous Application E020 of 2025) [2026] KEELC 497 (KLR)

Environment and Land Court of Kenya
5 February 2026
948 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan magistrates' court cannot hear adverse possession claims, and a defective claim before it cannot be fixed by simply transferring the case to the Environment and Land Court.

What this practically means

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Executive summary

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The applicants, defendants in Siaya SPMC ELC Case No E065 of 2021 (a land suit filed by the respondent, James Onyango Obondi), moved the Environment and Land Court at Siaya by Notice of Motion dated 20 May 2025 seeking transfer of the entire subordinate court suit to the ELC. They contended that their Defence and Counterclaim dated 7 April 2022 included a prayer for adverse possession, a claim over which the Siaya Principal Magistrate's Court lacked jurisdiction, and invoked Section 18 of the Civil Procedure Act and the Court of Appeal's decision in Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiruti. The respondent opposed, arguing the application was an afterthought, res judicata, and effectively an appeal against the trial court's ruling of 29 November 2022 which had sustained a preliminary objection on the adverse possession claim; he relied on Jasbir Singh Rai v Tarlochan Singh Rai on costs. Justice A. E. Dena framed a single issue: whether the transfer application was merited. The court accepted that adverse possession claims are reserved for the ELC, as a counterclaim is a separate suit standing on its own, and that the magistrates' court was not seized of jurisdiction. However, it held that the Sugawara decision did not open a gateway for transferring such matters to the ELC, and that a nullity cannot be transferred - there was nothing to transfer. The court also indicated it would have upheld the trial court's jurisdictional finding even on appeal. The application was dismissed with no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application to transfer Siaya SPMC ELC Case No E065 of 2021 to this court for hearing and determination is merited

Key legal issues

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01

Whether the court should exercise its discretion under Section 18 of the Civil Procedure Act to transfer a subordinate court suit containing a counterclaim for adverse possession

Holding

The application was dismissed. The counterclaim for adverse possession was a nullity before the magistrates' court since adverse possession claims are reserved for the ELC, and there is nothing to transfer.

Reasoning

Relying on the Court of Appeal's decision in Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiruti, the court held that although magistrates' courts' jurisdiction over environment and land matters was expanded, Section 9 of the Magistrates Court Act does not include adverse possession claims. A counterclaim is an independent suit; filed before a court lacking jurisdiction it was a nullity. Judicial discretion under Section 18 could not be exercised to transfer nothing.

p. 3

Legal principles established

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  • Claims for adverse possession fall within the exclusive jurisdiction of the Environment and Land Court and are not among the matters specified for magistrates' courts under Section 9 of the Magistrates Court Act
  • A counterclaim is a separate suit standing on its own, and where it seeks adverse possession before a court without jurisdiction it is a nullity with nothing to transfer

Court orders

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  1. 1.The application dated 20/5/2025 seeking transfer of Siaya SPMC ELC Case No E065 of 2021 to the Environment and Land Court is dismissed
  2. 2.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 18 of the Civil Procedure Act (power of the High Court/ELC to withdraw and transfer cases instituted in subordinate courts)

Relief refused

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Transfer of Siaya SPMC ELC Case No E065 of 2021 to the Environment and Land Court for hearing and determination

The counterclaim for adverse possession was filed before a court without jurisdiction; a nullity cannot be transferred, and the Court of Appeal decision on jurisdiction did not entitle litigants to transfer such matters to the ELC

p. 3

Costs

The application was dismissed with no orders as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

notwithstanding the expansion of the jurisdiction of environment and land usage to the Magistrates Courts, it is instructive that under Section 9 (a) of the Magistrates Court Act, various matters are specified for determination, but claims for adverse possession are not included in that section
p. 2Jurisdiction of magistrates' courts over adverse possession
As long as the counterclaim sought orders that the claimants be declared the owners of the suit property by way of adverse possession, the court was not seized of the requisite jurisdiction.
p. 2Counterclaim and jurisdiction
The application must fail and it is hereby dismissed with no orders as to costs.
p. 3Final orders / disposition

Issues in the judgment

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minor

Party names in the transfer application appear to contain typographical errors ("Jmicahel Okumu Oriaro" and "George Obiero Okumu")

minor

The judgment is described as a "ruling" disposing of a Notice of Motion but is styled and dated as a judgment

minor

The Court of Appeal case name is inconsistently spelled ("Pauline Chemuge Sugawara" vs "Sugawara") and rendered without "v" in paragraph 14

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Oriaro & 2 others v Obondi (Environment and Land Miscellaneous Application E020 of 2025) [2026] KEELC 497 (KLR)", Case Analysis (2026). Notice of Motion dated 20/5/2025 (arising from Siaya SPMC ELC Case No E065 of 2021, James Onyango Obondi v Jmicahel Okumu Oriaro, Sylvanus Oriaro Okumu and George Obiero Okumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/497/eng@2026-02-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.