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ELCAllowedNot stated in judgment (application dated 25th March, 2025 in Kisumu CM ELC No. 61 of 2018)

Otando v Hongo (Environment and Land Miscellaneous Application E018 of 2025) [2026] KEELC 1619 (KLR)

Environment and Land Court
19 March 2026
EAE. Asati
597 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that Magistrate's courts cannot hear adverse possession land claims, so a Kisumu land case was sent back to the Environment and Land Court.

What this practically means

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Executive summary

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This was a Notice of Motion dated 25th March 2025 seeking re-transfer of Kisumu CM ELC No. 61 of 2018 from the Magistrate's Court back to the Environment and Land Court, Kisumu. The suit was originally filed in the ELC at Kisumu as Kisumu ELC Case No. 60 of 2013, where the applicant entered appearance, filed a defence and raised a counterclaim based on adverse possession. On 21st January 2018 the suit was transferred to the Magistrate's Court for hearing and disposal. The applicant relied on a recent Court of Appeal decision holding that Magistrate's courts lack jurisdiction over adverse possession claims. The respondent opposed, arguing the application was misconceived, that the plaintiff had closed his case on 9th November 2022 while the defence had been delayed by adjournment applications, and that the applicant had not opposed the original transfer despite the adverse possession claim already being on record. Justice E. Asati found no denial that an adverse possession claim was involved, and applying section 38 of the Limitation of Actions Act and the Court of Appeal decision in Sugawara vs Kiruti [2024] KECA 1417 (KLR), held that Magistrate's courts lack jurisdiction to determine such claims. Noting that the applicant had filed her counterclaim in a court with jurisdiction and could not be faulted for the subsequent transfer, the court exercised its power under section 18(1)(b) of the Civil Procedure Act to withdraw and retransfer the suit. The application was allowed: the suit was retransferred to the ELC for hearing and disposal, with a mention on 18th May 2026 for directions, and costs of the application were awarded to the respondent.

Questions the Court framed

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

  1. 1.Whether the suit should be re-transferred from the Magistrate's Court back to the Environment and Land Court given that the Magistrate's court lacks jurisdiction over adverse possession claims

Key legal issues

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01

Jurisdiction of Magistrate's courts over adverse possession claims

Holding

Magistrate's courts lack jurisdiction to determine adverse possession claims; the claim must be heard in the Environment and Land Court

Reasoning

The court found no denial that an adverse possession counterclaim existed in the suit. Relying on section 38 of the Limitation of Actions Act and the Court of Appeal decision in Sugawara vs Kiruti, the court held that Magistrate's courts lack jurisdiction over such claims, making re-transfer to the ELC necessary for the applicant to ventilate her claim.

p. 2
02

Court's power to withdraw and retransfer a suit from a subordinate court

Holding

The ELC has power under section 18(1)(b) of the Civil Procedure Act to withdraw a suit pending in a subordinate court and retransfer it to the court from which it was withdrawn

Reasoning

The suit was originally filed in the ELC where the applicant filed a defence and counterclaim for adverse possession before the 2018 transfer to the Magistrate's court. The applicant could not be faulted for the transfer, having filed the counterclaim in a court with jurisdiction. Exercising section 18(1)(b), the court allowed re-transfer.

p. 2

Legal principles established

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  • Magistrate's courts lack jurisdiction to determine claims of adverse possession under section 38 of the Limitation of Actions Act
  • The High Court/ELC may withdraw a suit pending in a subordinate court and retransfer it for trial and disposal under section 18(1)(b) of the Civil Procedure Act

Court orders

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  1. 1.Kisumu CMCELC No. 61 of 2018 is retransferred to the Environment and Land Court, Kisumu, for hearing and disposal
  2. 2.The suit to be mentioned before the Environment and Land Court, Kisumu, on 18th May 2026 for directions on disposal
  3. 3.Costs of the application to the Respondent

The bench

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

EA
majority

Wrote the judgment

Jurisdiction invoked
Section 18(1)(b) of the Civil Procedure Act - power to withdraw suits pending in subordinate courts and retransfer them

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 view of the express provisions of section 38 of the Limitation of Actions Act, the Magistrate's courts do not have jurisdiction to determine claims of adverse possession.
p. 2Jurisdiction of Magistrate's courts over adverse possession
this court has power under section 18 1 (b) of the Civil Procedure Act to withdraw any suit or other proceeding pending in any court subordinate to it and thereafter retransfer the suit for trial and disposal to any court from which it was withdrawn
p. 2Power to withdraw and retransfer suits
Kisumu CMCELC NO 61 OF 2018 is retransferred to the Environment and Land Court, Kisumu, for hearing and disposal.
p. 2Final orders - re-transfer

Issues in the judgment

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minor

The judgment describes the applicant filing a defence and counterclaim using both feminine and gender-neutral references ('her counterclaim' vs 'the Applicant'), and the suit number appears inconsistently as Kisumu Elc Case No 60 OF 2013 (original filing) and Kisumu CM ELC NO. 61 OF 2018 (transferred suit) - not a contradiction but worth noting for accuracy

minor

Case number of the application itself is not stated on the face of the judgment

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, "Otando v Hongo (Environment and Land Miscellaneous Application E018 of 2025) [2026] KEELC 1619 (KLR)", Case Analysis (2026). Not stated in judgment (application dated 25th March, 2025 in Kisumu CM ELC No. 61 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1619/eng@2026-03-19

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