Iha (Represented by His Legal Mwainaisha Wema Salim & Alfan Shida Iha) v Baridhwan & 5 others; Katana & 12 others (Interested Parties) (Environment and Land Miscellaneous Case E014 of 2025) [2025] KEELC 6748 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Transfer of suit for lack of jurisdiction over adverse possession counterclaim
The transfer under section 18 of the Civil Procedure Act was merited since all parties agreed the magistrate's court lacked jurisdiction over the adverse possession claim
The applicant sought transfer of Mombasa MCC No. 3138 of 2009 because the lower court lacked jurisdiction over her adverse possession counterclaim. The 1st respondent conceded the point, and both counsel relied on Sugara v Kivuti, where the Court of Appeal held that adverse possession claims belong to the ELC. The respondent's incompetence objection failed because no particulars were given and the pleadings were not before the court.
Injunction to preserve the suit property
The injunction was refused because the lower court's status quo order remained in force
The 1st interested party deposed that the lower court had directed maintenance of status quo pending determination of the suit, and this was not rebutted. Since that order would remain in force even after transfer of the record to the ELC, a further injunction was unnecessary and the prayer was rejected.
Costs of the application
Costs were ordered to abide the outcome of the main suit despite the applicant's success
Section 27 of the Civil Procedure Act provides that costs follow the event unless otherwise ordered on good grounds. Although the applicant succeeded, the court found it fair and just that costs abide the main suit because the application was necessitated by the applicant's own adverse possession counterclaim.
Legal principles established
#- Adverse possession claims fall within the jurisdiction of the Environment and Land Court, not the magistrates' courts
- Costs follow the event unless the court orders otherwise on good grounds
Court orders
#- 1.Prayer (2) of the notice of motion allowed; Mombasa MCC No. 3138 of 2009, Zubeida Omar Baidhwan v Shida Iha & 18 Others transferred to the Environment and Land Court for hearing and determination.
- 2.Costs of the application to abide the outcome of the main suit.
- Jurisdiction invoked
- Section 18 of the Civil Procedure Act, Chapter 21 Laws of Kenya (transfer of suit to the High Court/ELC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Iha (Represented by His Legal Mwainaisha Wema Salim & Alfan Shida Iha) v Baridhwan & 5 others; Katana & 12 others (Interested Parties) (Environment and Land Miscellaneous Case E014 of 2025) [2025] KEELC 6748 (KLR)", Case Analysis (2025). ELC Case (judgment does not state the ELC case number). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6748/eng@2025-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.