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ELCPartially AllowedELC EP MISC APPL. NO. E004 OF 2026

Mwendwa Munyalo & another v Prestone Mbonzo Nzioka

Environment and Land Court
29 September 2026
2,413 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court moved a land dispute from the Magistrates' Court because magistrates cannot decide adverse possession claims.

What this practically means

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Executive summary

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The applicants, administrators of the estate of the late Nelson Munyalo, moved the Environment and Land Court at Machakos by unopposed notice of motion dated 17 April 2026 seeking transfer of Machakos CMEL No. E088 of 2021 (Preston Mbonzo Nzioka v Mwendwa Munyalo & Kyalo Munyalo) from the Magistrates' Court to the ELC. The lower court suit, filed by the administrator of the estate of the late Nzioka Mutevu, claims trespass, eviction and exhumation of bodies from two Kiima Settlement Scheme plots; the applicants filed a defence and counterclaim including adverse possession. When the matter came up before Hon. James Ombura (SPM) on 23 February 2026, the Magistrates' Court declined to proceed, holding it lacked jurisdiction over adverse possession claims, and directed the parties to seek transfer. The respondent's counsel did not thoroughly oppose the motion. The court identified a single issue: whether it should transfer the lower court matter to itself. It reviewed the two schools of thought on transferring pre-Sugawara adverse possession claims, endorsed the binding position that Magistrates' courts lack jurisdiction over adverse possession (Sugawara v Kiruti) and that a court cannot transfer a suit filed in a court wholly lacking jurisdiction (Albert Chaurembo Mumba; Equity Bank v Mutie). However, because the lower court retained jurisdiction over the trespass claim and the trust limb of the counterclaim, the court invoked Section 3A inherent powers to transfer the entire suit to itself, avoiding parallel proceedings and judicial embarrassment. The motion was allowed with no orders as to costs and the file marked closed.

Questions the Court framed

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

  1. 1.whether this court should transfer the lower court matter to itself

Key legal issues

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01

Whether the ELC should transfer the lower court suit to itself where the subordinate court has jurisdiction over part of the claims but lacks jurisdiction over the adverse possession counterclaim

Holding

Transfer allowed under Section 18(1) and Section 3A; the partial lack of jurisdiction over the adverse possession counterclaim justified transfer to avoid parallel proceedings and judicial embarrassment.

Reasoning

The court accepted that a court cannot transfer a suit filed in a court wholly lacking jurisdiction, per Sugawara v Kiruti and Equity Bank v Mutie. However, the lower court retained jurisdiction over the trespass claim and the trust limb of the counterclaim; only the adverse possession limb was beyond it. Transferring the whole suit under Section 3A inherent powers served the ends of justice and prevented abusive parallel proceedings over identical issues, parties and subject matter.

p. 12
02

Whether Magistrates' courts have jurisdiction over adverse possession claims

Holding

They do not; the Court of Appeal in Sugawara v Kiruti settled the controversy in favour of the school holding that adverse possession claims must be brought by Originating Summons in the superior court.

Reasoning

Two schools of thought had existed: one treating pecuniary jurisdiction over land matters as covering adverse possession, the other relying on Order 37 Rule 7 requiring Originating Summons in the High Court/ELC. The Court of Appeal affirmed the latter position, which binds the ELC under stare decisis.

p. 7

Legal principles established

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  • An order for transfer of a suit cannot be made unless the suit was first brought to a court with jurisdiction to try it; parties cannot consent to confer jurisdiction.
  • Magistrates' courts lack jurisdiction to hear and decide claims based on the doctrine of adverse possession.
  • It is illegal to transfer a suit filed in a court lacking jurisdiction to a competent court so as to sanctify an incompetent suit.

Court orders

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  1. 1.Machakos CMEL No. E088 of 2021: Preston Mbonzo Nzioka -vs- Mwendwa Munyalo & Kyalo Munyalo is hereby transferred from Machakos Chief Magistrate's court to this court for hearing and determination
  2. 2.There shall be no orders as to costs
  3. 3.This file is hereby effectively marked as closed

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, 3, 3A & 18(1)(b) & 2 of the Civil Procedure Act; Article 159(2) of the Constitution; Order 51 Rule 1 of the Civil Procedure Rules, 2010

Relief refused

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Costs of the application

Court declined to award costs despite the prayer

p. 12

Costs

There shall be 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.

In the end, Machakos CMEL No. E088 of 2021: Preston Mbonzo Nzioka -vs- Mwendwa Munyalo & Kyalo Munyalo is hereby transferred from Machakos Chief Magistrate's court to this court for hearing and determination. There shall be no orders as to costs.
p. 12Final orders - transfer of suit
Rooted in the doctrine of stare decisis, this court concurs with the findings of the latter school of thought that a court lacks the authority to transfer a matter to itself if the original court wherein the matter was initially filed had been divested of jurisdiction.
p. 9Stare decisis and transfer of suits
It is now established that the Magistrates courts do not have the jurisdiction to hear and decide claims based on the doctrine of adverse possession
p. 6Jurisdiction of Magistrates' courts over adverse possession
Allowing such action would create a scenario in which parallel proceedings concerning identical issues, parties, and subject matter could be initiated, potentially causing judicial embarrassment
p. 12Avoiding parallel proceedings

Issues in the judgment

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material

Hearing date precedes motion date

minor

Motion date inconsistency

material

Deponent name does not match named applicants

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, "Mwendwa Munyalo & another v Prestone Mbonzo Nzioka", Case Analysis (2026). ELC EP MISC APPL. NO. E004 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5912/eng@2026-09-29

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