Sule & 3 others v Miruka & another (Environment and Land Miscellaneous Application E052 of 2025) [2026] KEELC 3717 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that magistrates' courts cannot decide adverse possession claims, so the Kisumu land case moved to the ELC.
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 Magistrate's Court lacks jurisdiction to hear Kisumu CMC EL Case No. E094 OF 2023 in view of the Applicants' counterclaim for adverse possession
- 2.Whether the suit should be transferred to the Environment and Land Court, Kisumu
Key legal issues
#Jurisdiction of the Magistrate's Court over a counterclaim for adverse possession
The Magistrate's Court lacks jurisdiction under section 38 of the Limitation of Actions Act to determine a claim for adverse possession, warranting transfer of the suit to the ELC
The Applicants pleaded a counterclaim seeking declarations that they had acquired proprietary rights as adverse possessors, having occupied the suit land since 1958. Because such claims fall under section 38 of the Limitation of Actions Act, only the ELC can entertain them. The Respondents' argument that they acquired title only in 2023 was a merits question, not a jurisdictional bar. The application was therefore allowed.
Whether the defence/counterclaim of adverse possession has merit
That is a matter for determination in the suit, not for the transfer application
The court held that the Applicants are entitled to present their defence, including adverse possession, and whether that defence or counterclaim has merits is a question to be determined in the suit itself. The transfer ruling could not prejudge the substantive claim.
Legal principles established
#- Under section 38 of the Limitation of Actions Act, the Magistrate's Court lacks jurisdiction to hear and determine a claim for adverse possession
- A defendant is entitled to present a defence, including one of adverse possession, to the claimant's suit; its merits fall for determination in the suit
Court orders
#- 1.Kisumu CMC EL Case No. E094 OF 2023 is transferred to the Environment and Land Court KISUMU for hearing and determination
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A & 18 of the Civil Procedure Act Cap 21 and Order 51 Rule 1 of the Civil Procedure Rules (transfer of proceedings to the Environment and Land Court)
Relief refused
#Costs of the application (sought to be in the cause)
The court ordered no orders as to costs instead
Costs
No orders as to costs.
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.
Under the provisions of section 38 of the Limitation of Actions Act, the Magistrate’s court lacks jurisdiction to hear and determine the claim in the counterclaim.
The Applicants are entitled to present their defence (which includes the defence of adverse possession) to the Respondent’s claim in the suit.
i. Kisumu CMC EL Case No. E094 OF 2023 is transferred to the Environment and Land Court KISUMU for hearing and determination.
ii. No orders as to costs.
Issues in the judgment
#Internal date inconsistency: the replying affidavit is recorded as sworn on 5th May, 2026, after the application of 24th October 2025 but the ruling is dated 18th June 2026; also the transfer application under section 18 lies to the High Court/ELC and the record does not state the ELC case number of this ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sule & 3 others v Miruka & another (Environment and Land Miscellaneous Application E052 of 2025) [2026] KEELC 3717 (KLR)", Case Analysis (2026). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3717/eng@2026-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.