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ELCPartially AllowedNotice of Motion dated 16th June 2025 (in proceedings at Kakamega ELC)

Ndeda (Legal Administrator of the Estate of Peter Ondu alias Peter Okore Ondu) v Aluga & another (Environment and Land Miscellaneous Case E041 of 2025) [2026] KEELC 954 (KLR)

Environment and Land Court
11 February 2026
895 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that adverse possession suits wrongly filed in magistrates' courts can be transferred rather than restarted.

What this practically means

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Executive summary

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The applicant, plaintiff in Butali ELC Case No. E010 of 2023 claiming adverse possession, moved the Environment and Land Court at Kakamega by Notice of Motion dated 16th June 2025 seeking transfer of her suit from the Butali Principal Magistrates' Court to the ELC. She argued she had filed in the magistrates' court under the impression it had jurisdiction, but following the Court of Appeal's decision in Civil Appeal No. E141 of 2022 the trial court lacked jurisdiction. The respondents opposed, contending the application was incompetent and that a suit filed in a court lacking jurisdiction is a nullity incapable of transfer, with the only remedy being withdrawal and fresh filing. The court framed a single issue: whether the applicant deserved the orders sought. Relying on section 18(1)(b)(i) of the Civil Procedure Act, it confirmed its power to transfer suits from the magistrates' court. It noted conflicting ELC authority on magistrates' jurisdiction over adverse possession: Patrick Ndegwa Munyua (jurisdiction exists) versus Philip Kithaka (no jurisdiction), until the Court of Appeal in Sugawara (October 2024) settled the law that magistrates' courts have no such jurisdiction. Since the suit was filed when Patrick Ndegwa Munyua prevailed, the magistrates' court then had jurisdiction and the suit was not a nullity. Applying section 1A of the Civil Procedure Act, the court found transfer just, fair, expeditious and affordable, allowed the application, transferred the suit to Kakamega ELC, and made 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 (transfer of Butali ELC Case No. E010 of 2023 to the Environment and Land Court)

Key legal issues

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01

Whether a suit for adverse possession filed in the Magistrates' court when such court was held to have jurisdiction, but which has since lost that jurisdiction, should be transferred to the ELC or withdrawn and filed afresh

Holding

The suit is transferable to the ELC; the respondent's contention that it is a nullity incapable of transfer was rejected because at the time of filing the Magistrates' court had jurisdiction per Patrick Ndegwa Munyua, and it is just, fair, expeditious and affordable to transfer it.

Reasoning

The court traced the conflicting ELC decisions on magistrates' jurisdiction over adverse possession claims and noted that the Court of Appeal in Sugawara (October 2024) settled the law, holding magistrates' courts lack jurisdiction. Because the applicant filed suit when the then-prevailing authority (Patrick Ndegwa Munyua) supported magistrates' jurisdiction, the suit was not a nullity. Guided by section 1A of the Civil Procedure Act (overriding objective), the court found transfer, rather than withdrawal and refiling, to be the just, fair, expeditious and affordable course.

p. 2

Legal principles established

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  • The Environment and Land Court has jurisdiction to transfer a suit from the Magistrates' court to itself under section 18(1)(b)(i) of the Civil Procedure Act.
  • Following the Court of Appeal's decision in Sugawara, Magistrates' courts have no jurisdiction to hear and determine adverse possession claims, and suits filed when they had such jurisdiction may be transferred rather than struck out.

Court orders

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  1. 1.Butali MC ELC Case No. E 010 of 2023 (OS) transferred from Butali Principal Magistrates Court to the Environment and Land Court at Kakamega 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.

majority

Wrote the judgment

Jurisdiction invoked
Section 18(1)(b)(i) of the Civil Procedure Act (transfer of suits); Article 162(2) ELC jurisdiction invoked via Section 38(1) of the Limitation of Actions Act

Relief refused

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Costs of the application

The court exercised its discretion not to award costs, making no order as to costs.

p. 3

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 premises, I find and hold that the application dated 16th June 2025 is merited and the same is hereby allowed.
p. 2disposition - application allowed
Consequently, Butali MC ELC Case No. E 010 of 2023 2022 (OS) (Gladys Achieng Ndeda (Legal administrator of the estate of Peter Ondu alias Peter Okore Ondu – Versus- Rose Atieno Aluga And Another) is hereby transferred from Butali Principal Magistrates Court to this court for hearing and determination.
p. 2final order - transfer of suit to ELC Kakamega
This court has the jurisdiction to transfer a suit from the Magistrates court to this court for hearing and determination, as provided for in section 18 (1) (b) ( i ) of the Civil Procedure Act.
p. 2jurisdiction to transfer suits
I make no order as to costs.
p. 3costs

Issues in the judgment

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minor

Case number inconsistently stated: the motion seeks transfer of 'Butali ELC No. E 010 of 2023' while the transfer order refers to 'Butali MC ELC Case No. E 010 of 2023 2022 (OS)'

minor

Respondent's submissions dated 2nd December 2025 postdate the applicant's submissions of 28th August 2025; the hearing year (2025) and delivery date (February 2026) are internally consistent but the December 2025 date appears in a judgment analyzing a 2025 motion

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, "Ndeda (Legal Administrator of the Estate of Peter Ondu alias Peter Okore Ondu) v Aluga & another (Environment and Land Miscellaneous Case E041 of 2025) [2026] KEELC 954 (KLR)", Case Analysis (2026). Notice of Motion dated 16th June 2025 (in proceedings at Kakamega ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/954/eng@2026-02-11

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