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ELCDismissedApplication dated 28/3/2025 in Kitale ELC (relating to Kitale CMCELC No. 113 of 2002 (O.S))· [2025] KEELC 4819 (KLR)

Wanambisi v Rianga (Environment and Land Miscellaneous Case E006 of 2025) [2025] KEELC 4819 (KLR)

Environment and Land Court
25 June 2025
CNC.K. NZILI
757 words in judgment
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The bottom line

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A Kenyan court cannot transfer an adverse possession suit filed in the wrong court; you must withdraw it and file afresh in the Environment and Land Court.

What this practically means

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Executive summary

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The applicant, Tom Lihiru Wanambisi, moved the Environment and Land Court at Kitale by an application dated 28 March 2025 seeking the transfer of Kitale CMCELC No. 113 of 2002 (O.S), an adverse possession suit pending before the magistrates' court, to the ELC for hearing and disposal. He relied on a ruling in Nakuru ELC No. 2 of 2019 (Patrick Ndegwa Munyua v Benjamin Mwangi & Another) and argued that the Court of Appeal has since determined that lower courts lack jurisdiction over adverse possession claims; he also noted that two related files of his had already been dismissed by the lower court without an opportunity to withdraw or transfer them. The respondent opposed the application through a preliminary objection dated 7 April 2025, contending the court lacked jurisdiction to grant the orders sought. The court, relying on Section 18 of the Civil Procedure Act and authorities including Kagenyi v Musiramo, Samuel Kamau Macharia, Equity Bank v Bruce Mutie Mukutu, the Owners of the Motor Vessel 'Lillian S', Phoenix of E.A. Assurance and Macfoy v United African Co., held that jurisdiction over adverse possession claims is vested in the High Court by the Limitation of Actions Act, the Land Registration Act and Order 37 of the Civil Procedure Rules. A suit filed in a court without jurisdiction is a nullity, dead on arrival, and cannot be transferred; the only remedy is withdrawal and fresh filing in the competent court. The preliminary objection was upheld, the application was dismissed with costs, and the applicant was left to withdraw the suit and refile before the ELC.

Key legal issues

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01

Whether the ELC can transfer a pending lower-court adverse possession suit to itself under Section 18 of the Civil Procedure Act

Holding

No - the suit was a nullity for want of jurisdiction in the lower court, and a nullity cannot be transferred; the application was dismissed and the preliminary objection upheld.

Reasoning

Section 18 grants power to transfer suits, but a suit can only be transferred if it was initially brought to a court with jurisdiction to try it. Jurisdiction is conferred by the Constitution or statute, not by consent or judicial craftsmanship. Adverse possession claims fall exclusively to the High Court/ELC under the Limitation of Actions Act, the Land Registration Act and Order 37 of the Civil Procedure Rules. A suit filed in a court without jurisdiction is dead on arrival, and everything founded on a nullity is itself a nullity and incurably bad.

p. 2

Legal principles established

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  • A suit filed in a court without jurisdiction is an incompetent suit incapable of being transferred; the only remedy is to withdraw it and file a competent one in the court seized of jurisdiction
  • A nullity cannot be acted upon by a court; the only option for a plaintiff whose suit was filed in a court without jurisdiction over adverse possession is to withdraw and refile before the proper court

Court orders

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  1. 1.The preliminary objection by the respondent is upheld
  2. 2.The application dated 28/3/2025 is dismissed with costs
  3. 3.Orders accordingly

Authorities

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Legislation

  • Civil Procedure ActSection 18
  • Limitation of Actions ActSections 7, 11 and 38
  • Land Registration ActSection 28(b)
  • Civil Procedure RulesOrder 37

Cases cited (8)

  • Patrick Ndegwa Munyua -vs- Benjamin Mwangi & Another
    Nakuru ELC No. 2 of 2019
  • Abraham Mwangi Wamigwi -vs- Mbiriri Wanjiku & Another
    [212] eKLR
  • Kagenyi -vs- Musiramo & Another
    (1968) EA 43
  • Samuel Kamau Macharia & Another -vs- Kenya Commercial Bank Ltd
    [2013] eKLR
  • Equity Bank Ltd -vs- Bruce Mutie Mukutu T/S Diani Tour Travel
    [2016] eKLR
  • Owners of the Motor Vessel "Lillian S" -vs- Caltex Oil (Kenya) Ltd
    [1989] KECA 48 (KLR)
  • Phoenix of E.A. Assurance Co. Ltd -vs- S.M. Thiga T/A Newspaper Service
    [2019] eKLR
  • Macfoy -vs- United African Co. Ltd
    [1961] 3 ALL ER 1169
Jurisdiction invoked
Section 18 of the Civil Procedure Act (transfer jurisdiction); jurisdiction of the High Court over adverse possession claims under Sections 7, 11 and 38 of the Limitation of Actions Act, Section 28(b) of the Land Registration Act and Order 37 of the Civil Procedure Rules

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, "Wanambisi v Rianga (Environment and Land Miscellaneous Case E006 of 2025) [2025] KEELC 4819 (KLR)", Case Analysis (2025). Application dated 28/3/2025 in Kitale ELC (relating to Kitale CMCELC No. 113 of 2002 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4819/eng@2025-06-25

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