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ELCPartially AllowedKakamega ELC Transfer Application (amended Notice of Motion dated 24th June 2025)

Alu v Muyanda (Environment and Land Miscellaneous Case E030 of 2025) [2026] KEELC 689 (KLR)

Environment and Land Court
4 February 2026
ANA. Nyukuri
683 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that land cases filed in magistrates' courts before 2024 can still be moved to the Environment and Land Court.

What this practically means

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Executive summary

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The applicant moved the Environment and Land Court at Kakamega by an amended Notice of Motion dated 24th June 2025 seeking transfer of Kakamega CMC ELC Case No. E184 of 2022 (OS), an adverse possession suit, from the Chief Magistrate's Court to the Environment and Land Court. The applicant argued that following the Court of Appeal's determination in Civil Appeal No. E141 of 2022, magistrates' courts no longer have jurisdiction over adverse possession claims. The respondent opposed, contending that the application offended section 38 of the Limitation of Actions Act, that the court lacked jurisdiction to grant the orders, and that the application was an abuse of process. The court framed a single issue: whether the applicant deserved the orders sought. It noted section 18(1)(b)(i) of the Civil Procedure Act empowers the ELC to transfer matters from the magistrates' court, and section 38(1) of the Limitation of Actions Act vests adverse possession jurisdiction in the ELC. Reviewing the conflicting High Court authorities on magistrates' jurisdiction over adverse possession, the court observed the Court of Appeal settled the law in October 2024 by holding magistrates' courts lack such jurisdiction. It rejected the respondent's argument that a suit filed in a court without jurisdiction cannot be transferred, holding that when the suit was filed, superior court authority supported the magistrates' court's jurisdiction, and the subsequent change in the law in 2024 justified transfer. The application was allowed, the suit transferred to the ELC for hearing and determination, with no order 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 applicant deserves the orders sought

Key legal issues

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Whether a suit filed in the magistrates' court when it had jurisdiction over adverse possession claims, before the Court of Appeal held otherwise, can be transferred to the Environment and Land Court

Holding

The transfer was allowed because the suit was lawfully filed when the law permitted magistrates' courts to determine adverse possession claims, and the change in the law in 2024 did not defeat the applicant's right.

Reasoning

The court traced the divergent High Court authorities on magistrates' jurisdiction over adverse possession, noting that the Court of Appeal settled the matter in 2024 by holding magistrates' courts lack such jurisdiction. It rejected the respondent's argument that a suit filed in a court then lacking jurisdiction cannot be transferred, reasoning that at filing there existed superior court authority that magistrates' courts had jurisdiction, so the applicant filed lawfully. The subsequent change in the legal position justified transfer rather than dismissal.

p. 2

Legal principles established

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  • Where a subordinate court lawfully had jurisdiction when the suit was filed, but the law changed while the suit was pending, the suit may be transferred to the court now possessed of jurisdiction.

Court orders

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  1. 1.Kakamega CMC ELC Case No. E184 of 2022 (OS) is hereby transferred from the Chief Magistrates Court to this court for hearing and determination.
  2. 2.No order as to costs.

The bench

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

AN
majority

Wrote the judgment

Jurisdiction invoked
Section 18(1)(b)(i) of the Civil Procedure Act

Relief refused

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Costs of the application

The court made no order as to costs.

p. 2

Costs

No order 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.

In the result, Kakamega CMC ELC Case No. E184 of 2022 (OS) is hereby transferred from the Chief Magistrates Court to this court for hearing and determination. I make no order as to costs.
p. 2Final orders - transfer of suit
It was held that Magistrates Courts have no jurisdiction to hear and determine claims based on adverse possession claims.
p. 2Court of Appeal authority on magistrates' jurisdiction over adverse possession
the applicant herein lawfully filed their claim in the subordinate court as that court then had jurisdiction, and the position having changed in 2024, the applicant's prayer to bring the suit to this court for hearing and determination is proper.
p. 2Rationale for transfer notwithstanding change in jurisdiction

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, "Alu v Muyanda (Environment and Land Miscellaneous Case E030 of 2025) [2026] KEELC 689 (KLR)", Case Analysis (2026). Kakamega ELC Transfer Application (amended Notice of Motion dated 24th June 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/689/eng@2026-02-04

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