Abongo v Ombogo & another (Environment and Land Miscellaneous Application E059 of 2025) [2026] KEELC 3314 (KLR)
The bottom line
#Kenya's Environment and Land Court now handles all adverse possession claims, and courts will transfer older magistrates' court cases rather than throw them out.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for transfer of Oyugis ELC E025 of 2023 from the Senior Principal Magistrate's Court at Oyugis to the ELC at Homabay is merited
- 2.Who should bear the costs of the application
Key legal issues
#Whether the Environment and Land Court can transfer a suit from a subordinate court that arguably lacked jurisdiction over the adverse possession counterclaim
Yes. The court distinguished the authorities relied on by the Respondent and held that where the counterclaim was filed before the Sugawara decision clarified jurisdiction, and neither party raised the jurisdictional objection during trial, the interest of justice favours transfer rather than declaring the counterclaim void.
The court traced the long-standing conflict of judicial opinion on whether magistrates' courts could determine adverse possession claims until the Court of Appeal settled the position in Sugawara on 11 October 2024. Because the counterclaim was filed in March 2023, before that decision, the parties filed in good faith during the period of confusion. Declaring the counterclaim a nullity would open 'the biggest pandoras' box' and unsettle many concluded subordinate-court decisions. Relying on the nature of a counterclaim as a cross-suit within one suit, and on Article 159(2)(d), Section 3A of the Civil Procedure Act and the overriding objective, the court found transfer to be the efficacious and just course.
The current jurisdiction over adverse possession claims under Section 38 of the Limitation of Actions Act
Only the Environment and Land Court has original jurisdiction to hear and determine adverse possession claims following Sugawara v Kiruti (11 October 2024).
The court reviewed the two conflicting schools of authority in the superior courts on whether magistrates' courts could entertain adverse possession claims. It adopted the view that a plain textual reading of Section 38 vests jurisdiction in the superior court, originally the High Court and, post the 2010 Constitution, the ELC under Article 162(2)(b) and Section 13 of the ELC Act. The Court of Appeal in Sugawara conclusively settled the position.
Legal principles established
#- Since the Court of Appeal decision in Sugawara v Kiruti delivered on 11 October 2024, only the Environment and Land Court has original jurisdiction to hear and determine adverse possession claims under Section 38 of the Limitation of Actions Act.
- A counterclaim is essentially a cross-suit but does not stand independently of the suit; where a counterclaim raising adverse possession was filed in a subordinate court before the Sugawara decision, the High Court may in the interest of justice order transfer of the suit to the ELC rather than declare the counterclaim a nullity.
- A party who did not raise the issue of jurisdiction at the earliest opportunity, and who litigated on the understanding that the trial court had jurisdiction before Sugawara clarified the law, cannot shut out the opposite party from seeking transfer.
Court orders
#- 1.That Oyugis ELC E025 of 2023 Silas Ombogo & another v Jane Awinja Abongo be transferred to the Environment and Land Court at Homabay for hearing and determination
- 2.That the costs of the application shall be in the cause
- 3.That the file is closed forthwith
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 13(1)(2) of the Environment and Land Court Act and Sections 3A, 1A and 1B of the Civil Procedure Act; Section 18 Civil Procedure Act (transfer of suits); Article 162(2)(b) of the Constitution
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, I order that Oyugis ELC E025 of 2023 Silas Ombogo & another vs Jane Awinja Abongo be transferred to this Court for hearing and determination.
Thus, from the 11th October 2024 the position is now clear, that Section 38 of the Limitation of Actions Act provides that only the ELC has the original jurisdiction to hear and determine adverse possession claims.
while this Court is not conferring any jurisdiction to the lower court on adverse possession disputes, it would be in the interest of justice to grant the order of transfer of the suit from the subordinate court to this one which has jurisdiction for determination.
The presence of a counterclaim in a suit, while essentially amounting to a cross-suit, does not give rise to a separate, standalone second judgment. A counterclaim never stands on its own and cannot be a pleading independent of a defence.
Issues in the judgment
#The judgment inconsistently names the suit sought to be transferred, referring to both 'Oyugis ELC E025 of 2023' and 'Case Number Oyugis SPM ELC E064 of 2024' as well as 'suit No. E023 of 2023'
The application is described as supported by an affidavit of counsel while it was actually supported by the 1st Applicant's affidavit
The supporting affidavit and grounds give inconsistent dates for the mention to confirm transfer (2023 versus 2025)
The applicants' role designations are confused: they are described as 'Applicants' yet the Respondent's affidavit refers to the applicant as the Defendant/counterclaimant in the transferred suit while the respondents are the plaintiffs therein
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abongo v Ombogo & another (Environment and Land Miscellaneous Application E059 of 2025) [2026] KEELC 3314 (KLR)", Case Analysis (2026). Notice of Motion dated 19th November 2025 (suit sought to be transferred: Oyugis ELC E025 of 2023 – Silas Ombogo & another v Jane Awinja Abongo). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3314/eng@2026-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.