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ELCAllowedNot stated in judgment (Notice of Motion dated 29/10/2025)

Muthach (Suing on His Behalf as Legal Representative of Alex Onyango) & another v Mbala & another (Enviromental and Land Originating Summons E039 of 2025) [2026] KEELC 2023 (KLR)

Environment and Land Court
15 April 2026
2,086 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Siaya's Environment and Land Court took over a land dispute from the Magistrates' Court, confirming magistrates cannot decide adverse possession claims in Kenya.

What this practically means

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Executive summary

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The applicants moved the Environment and Land Court at Siaya by Notice of Motion dated 29/10/2025 seeking the transfer of Ukwala SRM ELC No. 47 of 2019, an eviction suit filed by the 1st respondent over parcel North Ugenya/Uyundo/296, to the ELC for hearing and disposal, contending that the subordinate court could not decide the issue of adverse possession raised in their counterclaim. The respondents opposed, arguing the applicants had caused delay, that a similar stay application had been dismissed on 15/12/2025 rendering the matter res judicata, and that the application was an abuse of process. No submissions were filed despite directions. The court, per A. E. Dena J, applied section 18(1) of the Civil Procedure Act and Article 162(2)(b) of the Constitution, and followed the Court of Appeal decision in Sugawara v Kiruti, which held that Magistrates' Courts lack jurisdiction over adverse possession claims under sections 37 and 38 of the Limitation of Actions Act. Relying on Equity Bank v Mutuku, the court held that the adverse possession counterclaim was a nullity ab initio and could not be cured by transfer, but that the plaint in the trial court remained live. Finding the two suits inseparable as they concerned the same land and parties, and to avoid the ELC sitting in appeal over a matter it was simultaneously hearing, the court withdrew and transferred Ukwala SRM ELC No. 47 of 2019 to the ELC at Siaya, directed that it be given a new number, and fixed both files for mention for directions. Costs of the application were awarded to the respondents.

Questions the Court framed

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

  1. 1.Whether the counterclaim in Ukwala SRM ELC No. 47 of 2019 raises a plea of adverse possession
  2. 2.Whether the Magistrates' Court has jurisdiction to determine claims of adverse possession
  3. 3.Whether Ukwala SRM ELC No. 47 of 2019 should be withdrawn and transferred to the Environment and Land Court at Siaya

Key legal issues

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01

Jurisdiction of the Magistrates' Court over adverse possession claims

Holding

The Magistrates' Court lacks jurisdiction to entertain claims for adverse possession notwithstanding the expansion of its jurisdiction under the Magistrates' Court Act; such claims are reserved for the Environment and Land Court.

Reasoning

Relying on the Court of Appeal decision in Sugawara v Kiruti, the court noted that Section 9 of the Magistrates' Court Act, which specifies matters for determination by magistrates' courts, does not include claims for adverse possession. The decision, delivered on 11/10/2024, is binding on the court, meaning the trial court was not seized of the requisite jurisdiction over the counterclaim.

p. 3
02

Whether a defective counterclaim can be cured by transfer under section 18 of the Civil Procedure Act

Holding

No. A counterclaim filed in a court lacking jurisdiction is a nullity ab initio and cannot be sanctified by transfer to a competent court.

Reasoning

Applying Equity Bank Limited v Bruce Mutie Mutuku, the court held that parties cannot by consent confer jurisdiction, and transferring an incompetent suit for want of jurisdiction to a competent court is illegal because no competent suit exists capable of being transferred. Nothing comes out of a nullity.

p. 4
03

Whether the two suits should be heard together in the ELC

Holding

Yes. The plaint in the trial court and the adverse possession suit cannot be severed as they concern the same parcel of land and parties; the ELC can handle both under one roof.

Reasoning

The court found that transferring the plaint-commenced suit to the ELC was the most reasonable and efficient way of resolving the dispute, avoiding conflicting decisions and the embarrassing scenario where the ELC would sit on appeal over the same property while simultaneously hearing a suit on it, and meeting the overriding objective.

p. 4

Legal principles established

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  • Magistrates' Courts lack jurisdiction to hear and determine claims for adverse possession under sections 37 and 38 of the Limitation of Actions Act; only the Environment and Land Court has such jurisdiction
  • A suit filed in a court lacking jurisdiction cannot be transferred to a competent court so as to sanctify an incompetent suit
  • A counterclaim is a suit on its own

Court orders

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  1. 1.An order withdrawing and transferring Ukwala SRM ELC No. 47 of 2019 (Amos Omondi Mbala v Wilmina Nekesa & William Onyango Muthach) to the Environment and Land Court at Siaya for hearing and determination
  2. 2.That upon transfer, Ukwala SRM ELC No. 47 of 2019 shall be given a new number in the ELC
  3. 3.That the transferred file and the file in the present suit be placed for mention before the court for further directions
  4. 4.Costs of the application awarded to the Respondents

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) of the Civil Procedure Act and Article 162(2)(b) of the Constitution

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.

Invoking the courts inherent jurisdiction and the powers conferred under section 18 of the Civil Procedure Act an order hereby issues withdrawing and transferring the case Ukwala SRM ELC NO. 47 OF 2019 Amos Omondi Mbala Vs Wilmina Nekesa & William Onyango Muthach to this court for hearing and determination.
p. 4Final orders - transfer of suit
That upon the above, Ukwala SRM ELC NO. 47 OF 2019 shall be given a new number in this court
p. 5Final orders - new case number
The costs of this application are awarded to the Respondents in the present application.
p. 5Final orders - costs
it is only the Environment and Land Court which has jurisdiction to hear and determine claims for adverse possession.
p. 3Exclusive jurisdiction of ELC over adverse possession
It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists.
p. 4Jurisdiction cannot be conferred by consent
the approach of transferring the suit commenced by way of plaint to this court is the most reasonable and eficient way of resolving the matter.
p. 4Transfer as efficient resolution

Issues in the judgment

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minor

Costs order appears anomalous: the applicants' application succeeded (transfer ordered) yet costs were awarded to the respondents

minor

The application is described as opposed by a replying affidavit sworn in February 2026, while another replying affidavit is said to have been sworn on 2/12/2025, a chronological inconsistency

minor

The judgment does not state the case number of the present suit before the ELC

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, "Muthach (Suing on His Behalf as Legal Representative of Alex Onyango) & another v Mbala & another (Enviromental and Land Originating Summons E039 of 2025) [2026] KEELC 2023 (KLR)", Case Analysis (2026). Not stated in judgment (Notice of Motion dated 29/10/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2023/eng@2026-04-15

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