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ELCPartially AllowedNot stated in the ruling

Sule & 3 others v Miruka & another (Environment and Land Miscellaneous Application E052 of 2025) [2026] KEELC 3717 (KLR)

Environment and Land Court
18 June 2026
460 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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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

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Executive summary

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This ruling by E. Asati, Judge of the Environment and Land Court at Kisumu, determines a notice of motion dated 24th October 2025 brought under sections 1A, 1B, 3A and 18 of the Civil Procedure Act Cap 21 and Order 51 Rule 1 of the Civil Procedure Rules. The Applicants sought the transfer of Kisumu CMC EL Case No. E094 OF 2023 from the Chief Magistrate's Court to the Environment and Land Court, Kisumu, with costs in the cause. They argued that the Magistrate's Court lacks jurisdiction because their counterclaim pleads adverse possession: they and their family have occupied land parcel Kisumu/konya/286 measuring 0.17Ha since 1958, well over twelve years, and by the counterclaim they sought declarations that they have acquired proprietary and registrable prescriptive rights as adverse possessors. The Respondents opposed, contending that an adverse possession defence cannot arise because they became owners of the suit land only in 2023. The court held that under section 38 of the Limitation of Actions Act the Magistrate's Court lacks jurisdiction to hear and determine a claim for adverse possession; that the Applicants are entitled to present their defence, including adverse possession, to the Respondents' claim; and that the merits of that defence or counterclaim are matters for determination in the suit. Finding the application merited, the court transferred Kisumu CMC EL Case No. E094 OF 2023 to the ELC Kisumu for hearing and determination and made no orders as to costs. The ruling was delivered virtually on 18th June 2026 with no appearance by either party.

Questions the Court framed

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

  1. 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. 2.Whether the suit should be transferred to the Environment and Land Court, Kisumu

Key legal issues

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01

Jurisdiction of the Magistrate's Court over a counterclaim for adverse possession

Holding

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

Reasoning

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.

p. 2
02

Whether the defence/counterclaim of adverse possession has merit

Holding

That is a matter for determination in the suit, not for the transfer application

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Kisumu CMC EL Case No. E094 OF 2023 is transferred to the Environment and Land Court KISUMU for hearing and determination
  2. 2.No orders as to costs

The bench

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

majority

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

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Costs of the application (sought to be in the cause)

The court ordered no orders as to costs instead

p. 2

Costs

No orders as to costs.

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.

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.
p. 2Jurisdiction over adverse possession claims
The Applicants are entitled to present their defence (which includes the defence of adverse possession) to the Respondent’s claim in the suit.
p. 2Right to plead adverse possession in defence
i. Kisumu CMC EL Case No. E094 OF 2023 is transferred to the Environment and Land Court KISUMU for hearing and determination.
p. 2Final orders - transfer of suit
ii. No orders as to costs.
p. 2Final orders - costs

Issues in the judgment

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minor

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

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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, "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.