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ELCAllowedNotice of motion dated 26th March, 2025

Kalani & 5 others v Katuse (Environment and Land Case Application E009 of 2025) [2026] KEELC 1196 (KLR)

Environment and Land Court
26 February 2026
684 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that adverse possession counterclaims filed in magistrates' courts before jurisdiction rules settled can be transferred, not struck out.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (Obaga J) determined a notice of motion dated 26th March, 2025 in which the Applicants sought transfer of Makindu Senior Principal Magistrates' Court MC ELC E004 of 2023 to the Environment and Land Court for hearing and disposal. The Applicants had been sued by the Respondent at Makindu; they filed a defence and a counterclaim seeking the suit property through adverse possession. They argued that when the counterclaim was filed, there was divided opinion within the Environment and Land Court on whether magistrates' courts had jurisdiction over adverse possession claims, and that the Court of Appeal settled the matter on 11th October, 2024 in Sugawara –vs- Kiruti by holding that magistrates' courts lack such jurisdiction. The Respondent opposed, contending that the 12-year statutory period had not lapsed when the suit was filed, that no express claim for adverse possession was made, that the case was part-heard with two witnesses already testifying, and that transfer would add unnecessary costs. The court framed one issue: whether the Makindu file should be transferred. It held that the Applicants showed the law was unsettled when the counterclaim was filed, so the counterclaim was not a nullity ab initio incapable of transfer, distinguishing Rose Muthoni Mwangi –vs- Kenya Meat Commission. The Respondent's merits-based objections were premature. The application was allowed as prayed, with the file to be transferred to this court for hearing and disposal.

Questions the Court framed

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

  1. 1.whether the Makindu file should be transferred to this court

Key legal issues

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01

Whether the Makindu magistrates' court file should be transferred to the Environment and Land Court

Holding

Transfer allowed because the adverse possession counterclaim was filed when jurisdiction of magistrates' courts over such claims was unsettled, and the Court of Appeal later settled the position against such jurisdiction.

Reasoning

The court found the applicants demonstrated that at the time of filing their counterclaim there was divided opinion on whether magistrates' courts could entertain adverse possession claims. The Court of Appeal in Sugawara –vs- Kiruti later settled the matter, holding magistrates' courts lack jurisdiction. Since the law was unsettled when the counterclaim was filed, it could not be treated as a nullity incapable of transfer. The respondent's arguments on the 12-year period and absence of a specific prayer were held to be matters for the hearing, not for the transfer application.

p. 2

Legal principles established

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  • Where a counterclaim for adverse possession was filed in a magistrates' court when the law on the court's jurisdiction over such claims was unsettled, the counterclaim is not a nullity ab initio and may be transferred to the Environment and Land Court.

Court orders

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  1. 1.Transfer of Makindu Senior Principal Magistrates' Court MC ELC E004 of 2023 to the Environment and Land Court for hearing and disposal, as prayed

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Discretion of the court to transfer suits for hearing and disposal (application for transfer of a magistrate's court file to the Environment and Land Court in the interest of justice)

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.

I therefore find that the Applicant’s application is well founded. I allow the same as prayed. It is so ordered.
p. 2Final orders - transfer allowed
It cannot therefore be argued that the counterclaim by the Applicants was a nullity ab initio which cannot be transferred
p. 2Counterclaim filed under unsettled jurisdiction not a nullity
The Respondent’s argument that the Applicants had not satisfied the statutory period of 12 years or that there was no specific prayer for adverse possession is not a matter which can be addressed at this stage.
p. 2Merits arguments premature on a transfer application

Issues in the judgment

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minor

Judgment states it was delivered on 26th February, 2026 while the motion was dated 26th March, 2025 and submissions were filed in October and November 2025; internal chronology is consistent but the delivered date is nearly a year after filing.

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, "Kalani & 5 others v Katuse (Environment and Land Case Application E009 of 2025) [2026] KEELC 1196 (KLR)", Case Analysis (2026). Notice of motion dated 26th March, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1196/eng@2026-02-26

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