Mwendwa Munyalo & another v Prestone Mbonzo Nzioka
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether this court should transfer the lower court matter to itself
Key legal issues
#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
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.
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.
Whether Magistrates' courts have jurisdiction over adverse possession claims
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.
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.
Legal principles established
#- 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
#- 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.There shall be no orders as to costs
- 3.This file is hereby effectively marked as closed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#Costs of the application
Court declined to award costs despite the prayer
Costs
There shall be 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.
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.
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.
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
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
Issues in the judgment
#Hearing date precedes motion date
Motion date inconsistency
Deponent name does not match named applicants
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.