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ELCDismissed· [2025] KEELC 5102 (KLR)

Kwamboka v Abdirahman (Enviromental and Land Originating Summons E012 of 2025) [2025] KEELC 5102 (KLR)

Environment and Land Court
9 July 2025
2,332 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to transfer an adverse possession claim from the magistrates' court, confirming that lack of jurisdiction is not a ground for transfer in Kenya.

What this practically means

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Executive summary

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The applicant, Grace Kwamboka, a defendant in Milimani CMCELC No. E209 of 2021 (Abdulbari Barre Abdirahman v Grace Kwamboka), moved the Environment and Land Court by notice of motion dated 24th February 2025 seeking a stay of the lower court proceedings and an order that the matter be recalled and heard together with her suit. She contended she had occupied the suit property (LR No. 209/10966, now Nairobi/Block 263/2763) since 2003, having acquired it from Moto Moto Multipurpose Cooperative Society, and had filed a defence and counterclaim founded on adverse possession. Relying on the Court of Appeal's decision in Sugawara v Kiruti [2024], she argued magistrates' courts lack jurisdiction over adverse possession claims, a point the respondent had raised via a preliminary objection. The respondent opposed, asserting the properties differed, the applicant occupied as a tenant, and the application was a craft to sanctify an incompetent suit and stall the preliminary objection. The court, applying Section 18 of the Civil Procedure Act and the factors in Hangzhou Agrochemicals, held the applicant demonstrated no balance of convenience, expense, hardship or interest of justice. Relying on Equity Bank v Mutuku and Baru v Gitahi, it held want of jurisdiction is not a ground for transfer, the remedy being withdrawal of the counterclaim. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the magistrates' court suit should be recalled/transferred to the Environment and Land Court under Section 18 of the Civil Procedure Act

Holding

The application for transfer/stay failed because the applicant did not demonstrate the factors required for exercise of the discretion, and lack of jurisdiction of the lower court is not a ground for transfer

Reasoning

The court adopted the factors in Hangzhou Agrochemicals (motive, nature of relief, interests of litigants, convenience, expense, balance of convenience, hardship) and found none demonstrated. Relying on Equity Bank v Mutuku and Baru v Gitahi, it held that want of jurisdiction cannot justify transfer under Section 18, as that would sanctify an incompetent suit; the applicant's remedy was to withdraw her counterclaim.

p. 5
02

Whether stay of proceedings in the lower court ought to be granted

Holding

Stay was refused; no exceptional circumstances were demonstrated and the application appeared designed to pre-empt the lower court's ruling on a preliminary objection

Reasoning

The court found the application revealed a party who had pre-empted the mind of the lower court and sought refuge in the higher court to escape an unfavourable outcome. The respondent's pending preliminary objection on jurisdiction should be allowed to take its course in the subordinate court.

p. 4

Legal principles established

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  • The High Court cannot under Section 18 of the Civil Procedure Act transfer a suit filed in a court lacking jurisdiction, as no competent suit exists capable of being transferred
  • An applicant seeking withdrawal/transfer of proceedings under Section 18 must demonstrate balance of convenience, questions of expense, interests of justice and possibilities of undue hardship

Court orders

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  1. 1.The notice of motion dated 24th February, 2025 is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 18(1) and 18(2)
  • Environment and Land Court ActSection 13
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (15)

  • Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa & others
    [2024] eKLR
  • Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi and another
    [2020] eKLR
  • Habiba Ali Mursai and 3 others v Mariam Noor Abdi
    (Civil Application No. E276 of 2024) (Nairobi)
  • Co-operative Bank of Kenya Limited v Kennedy Wanjohi Mwangi
    (Civil Application No. E087 of 2023)
  • Symon Nyamu Muthigani v Charity Wangui Munene
    [2015] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • David Kabungu v Zikarenga and 4 others
    Kampala HCCS No. 36 of 1995
  • Kenya Commercial Bank Limited v James Karanja
    [1981] eKLR
  • Equity Bank Limited v Bruce Mutie Mutuku T/A Diani Tour & Travel
    [2016] eKLR
  • Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & Another
    [2012] eKLR
  • Phoenix of E.A Assurance Company Limited v S.M Thiga t/a Newspaper Service
    [2019] eKLR
  • Albert Chaurembo Mumba & 7 others & Maurice Munyao & 148 others
    Petition No. 3 of 2016
  • Hangzhou Agrochemicals Industries Ltd. v Panda Flowers Ltd
    [2012] eKLR
  • Baru & another (Suing as the Personal Representatives of the Estate of George Muriithi Gitahi) v Gitahi & 3 others
    [2025] KEELC 3405 (KLR)
  • Sugawara v Kiruti (Sued in her capacity as the administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others
    [2024] KECA 1417 (KLR)
Jurisdiction invoked
Sections 1A, 1B, 3A and 18 of the Civil Procedure Act; Section 13 of the Environment and Land Court Act; Order 51 Rule 1 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, "Kwamboka v Abdirahman (Enviromental and Land Originating Summons E012 of 2025) [2025] KEELC 5102 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5102/eng@2025-07-09

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