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ELCPartially AllowedMiscellaneous Application (Notice of Motion dated 9th June 2026)

Kweyu & another v Omito alias Clement Lukoko & another (Environment and Land Appeal Miscellaneous E012 of 2026) [2026] KEELC 5184 (KLR)

Environment and Land Court
30 July 2026
1,569 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that land dispute cases involving adverse possession must be heard by the ELC, not magistrates' courts, and transferred this suit accordingly.

What this practically means

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Executive summary

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The applicants moved the Environment and Land Court at Kakamega by Notice of Motion dated 9th June 2026 seeking the transfer of Mumias Principal Magistrate's Land Case No. 115 of 2018, formerly Kakamega High Court Case No. 87 of 2006, to the ELC for hearing and final disposal, together with a stay of the proceedings before the magistrates' court. The applicants contended that the suit, founded on an adverse possession claim and counterclaim, could no longer be entertained by magistrates' courts following recent pronouncements on jurisdiction. The respondents opposed, arguing the application was a late abuse of process designed to delay a part-heard suit in which they had closed their case, that ownership of the suit property had been settled in prior High Court litigation rendering the suit res judicata, and that an earlier adverse possession application by the applicants had been dismissed. The court framed a single issue: whether there was justification for transfer. Relying on Section 18(1)(b)(i) of the Civil Procedure Act, the judge noted conflicting ELC decisions on magistrates' jurisdiction over adverse possession claims and held that the Court of Appeal settled the law in October 2024 in Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiritu & 4 Others, holding that magistrates' courts lack jurisdiction over such claims. Because the suit's pendency in the lower court flowed from the ELC's own 2018 transfer order, the applicants could not be blamed for delay. The res judicata objection was reserved for the trial court. The application was allowed; the suit was transferred to the ELC at Kakamega, with each party bearing its own costs.

Questions the Court framed

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

  1. 1.Whether there is justification for grant of an order for the transfer of Mumias Senior Principal Magistrate's Court Land Case No. 115 of 2018 to the Environment and Land Court for hearing and determination

Key legal issues

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01

Whether the Mumias Principal Magistrate's Court Land Case No. 115 of 2018, founded on an adverse possession counterclaim, should be transferred to the Environment and Land Court.

Holding

The application was allowed; the suit was transferred to the Environment and Land Court for hearing and determination.

Reasoning

The court traced the conflicting ELC decisions on magistrates' jurisdiction over adverse possession claims and held that the Court of Appeal in the Sugawara case settled the matter in October 2024: magistrates' courts have no such jurisdiction. Because the suit's pendency in the lower court was caused by the ELC's own transfer order in 2018 and subsequent judicial pronouncements, the applicant could not be faulted for delay. Res judicata objections were reserved for the trial court.

p. 10
02

Whether the suit before the lower court is res judicata given prior High Court proceedings.

Holding

Res judicata is a matter for the trial court; the transfer court declined to determine it.

Reasoning

The respondents argued that ownership had been settled in prior High Court litigation and the suit was res judicata. The court held that only the trial court seized of the suit can determine res judicata, and since it was not the trial court, the question had to be raised by notice of motion in the Mumias suit. The merits could not be interrogated in the transfer application.

p. 10

Legal principles established

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  • The Environment and Land Court's power to withdraw a suit from a subordinate court and transfer it to itself is donated by Section 18(1)(b)(i) of the Civil Procedure Act.
  • Following the Court of Appeal's decision in Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiritu & 4 Others, Magistrates' Courts have no jurisdiction to hear and determine adverse possession claims.
  • Where the pendency of a suit in a court later found to lack jurisdiction was occasioned by an order of the higher court itself, a party cannot be blamed for not seeking transfer earlier.

Court orders

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  1. 1.The Mumias Principal Magistrate Court Environment and Land Court Case No. 115 of 2018 - formerly Kakamega High Court Case No. 87 of 2006 is transferred to the Environment and Land Court at Kakamega for hearing and determination.
  2. 2.Each party shall bear its own costs.

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)(b)(i) of the Civil Procedure Act

Relief refused

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Interim order staying proceedings in Mumias Principal Magistrate Land Case No. 115 of 2018 pending determination of the application

The application was disposed of by written submissions and the final order of transfer was granted, superseding the stay prayer; no separate stay order was issued.

Respondents' plea that the suit before the lower court is res judicata

The court held that res judicata is a question for the trial court, not the transfer court, and the merits of the suit could not be interrogated in this application.

p. 9

Costs

Each party shall bear its own 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.

I find and hold that the application dated 9th June 2026 is merited and the same is hereby allowed as follows;
p. 10Disposition - application allowed
That the Mumias Principal Magistrate Court Environment and Land Court Case No. 115 of 2018- formerly Kakamega High Court Case No. 87 of 2006 is hereby transferred to this Honourable court for hearing and determination.
p. 10Final order of transfer
Each party shall bear its own costs.
p. 10Costs
the Court of Appeal settled the law in that regard, in October 2024
p. 8Settled law on magistrates' jurisdiction over adverse possession
a court with jurisdiction to determine whether a case is res judicata or not, is the trial court
p. 9Forum for raising res judicata

Issues in the judgment

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minor

The applicants' names are not clearly stated in the judgment; only the 1st respondent (Clement Omito Omito, deponent of the replying affidavit) and the deponent of the supporting affidavit (1st applicant) are referenced, and counsel is identified as Mr. Mukavale J. for the applicant.

minor

The judgment refers to Kakamega HCC 18 OF 2018 in submissions as settling ownership, whereas earlier it references Civil Case No. 18 of 2008; the case numbers are inconsistent within the judgment.

minor

The citation of the Sugawara appeal is incomplete, given as '[2024] KECA' without a page or neutral citation number.

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, "Kweyu & another v Omito alias Clement Lukoko & another (Environment and Land Appeal Miscellaneous E012 of 2026) [2026] KEELC 5184 (KLR)", Case Analysis (2026). Miscellaneous Application (Notice of Motion dated 9th June 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5184/eng@2026-07-30

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