Sule & 3 others v Miruka & another (Environment and Land Miscellaneous Application E052 of 2025) [2026] KEELC 3717 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELC 3717 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KISUMU ENVIRONMENT AND LAND MISCELLANEOUS APPLICATION E052 OF 2025 E ASATI, J JUNE 18, 2026 BETWEEN TOPISTERVILER ODHIAMBO SULE ............................................ 1ST APPLICANT OMONDI SULE ................................................................................. 2ND APPLICANT CHRISTINA LILA SULE .................................................................. 3RD APPLICANT ROSABELLA SULE ............................................................................ 4TH APPLICANT AND GEORGE NGESO MIRUKA ......................................................... 1ST RESPONDENT JANES ANDIEGO MIRUKA THOMAS ..................................... 2ND RESPONDENT RULING 1. The application the subject of this ruling is dated 24th October, 2025, brought by the Applicants pursuant to the provisions of sections 1A, 1B, 3A & 18 of the Civil Procedure Act Cap 21 Laws of Kenya and Order 51 Rule 1 of the Civil Procedure Rules. 2. The application seeks an order of transfer of Kisumu CMC EL Case No.E094 OF 2023 to the ELC Kisumu for hearing and determination and an order that costs of the application be in the cause. 3. The grounds upon which the application is brought are that the Magistrate’s Court does not have jurisdiction to hear the case in view of the counterclaim filed by the Applicants. That the Applicants have been in occupation of a portion of the land parcel No. Kisumu/konya/286 measuring 0.17Ha for a period stretching to over 12 years; hence the cause of action can be litigated in this court. 4. The application was supported by the averment in the Supporting Afidavit of the 1st Applicant sworn on 25th October, 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3717/eng@2026-06-18 1
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5. The application was opposed vide the grounds of opposition contained in the Replying Afidavit sworn on 5th May, 2026. 6. The Respondents’ case is that the defence of adverse possession cannot arise because the Respondents became the owners of the suit land in the year 2023. 7. Copies of the pleadings in the suit sought to be transferred to this court are attached to the Supporting Afidavit. The statement of defence of the Defendants and counterclaim is one of such pleadings attached. The Applicants have pleaded in the counterclaim that members of their family and themselves have had occupation of the suit land since the year 1958. 8. By way of the counterclaim, they sought orders, inter alia, a declaration that they have acquired proprietary interest and rights as adverse possessors and have also acquired registrable prescriptive rights. 9. 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. Whether the defence/counterclaim of adverse possession has merits or not will be a matter for determination in the suit. I find that the application has merit and hereby allow it as follows 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. Orders accordingly. RULING DATED AND SIGNED AT KISUMU, DELIVERED VIRTUALLY THIS 18TH DAY OF JUNE 2026. E. ASATI, JUDGE. In the presence of: Atika - Court Assistant. No appearance for the Applicants. No appearance for the Respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3717/eng@2026-06-18 2
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