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ELCPartially AllowedELC Case (judgment does not state the ELC case number)· [2025] KEELC 6748 (KLR)

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)

Environment and Land Court
8 October 2025
1,071 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This Environment and Land Court decision at Mombasa by S. M. Kibunja, J, determined a notice of motion dated 24th February 2025 by Mwaisha Wema Salim, wife and legal representative of the estate of the late Shida Iha, seeking transfer of Mombasa MCC No. 3138 of 2009 (Zubeida Omar Baidhwan v Shida Iha & 18 Others) to the ELC and an injunction restraining the 1st respondent from interfering with plot MN/11/397. The applicant explained that her amended statement of defence and counterclaim raises an adverse possession claim which the magistrate's court lacks jurisdiction to determine. Julius Katana, the 1st interested party, supported the application, noting a lower court status quo order. The 1st respondent, through her son and attorney Mohamed Omar Baridhawan, opposed, arguing the counterclaims were incompetent, but without specifying how. The court framed two issues: transfer and injunction, and costs. Applying the Court of Appeal decision in Sugara v Kivuti, which held that adverse possession claims lie in the ELC and not magistrates' courts - a position the 1st respondent conceded - the court found the transfer merited. The incompetence objection was rejected as unsupported. The injunction prayer was refused because the lower court's status quo order remained in force and would continue after transfer. Although the applicant succeeded, costs were ordered to abide the outcome of the main suit since the application arose from her own counterclaim. The judgment was delivered virtually on 8th October 2025.

Key legal issues

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01

Transfer of suit for lack of jurisdiction over adverse possession counterclaim

Holding

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

Reasoning

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.

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02

Injunction to preserve the suit property

Holding

The injunction was refused because the lower court's status quo order remained in force

Reasoning

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.

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03

Costs of the application

Holding

Costs were ordered to abide the outcome of the main suit despite the applicant's success

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application to abide the outcome of the main suit.

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 18
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 27

Cases cited (1)

  • Sugara v Kivuti
    (Civil Appeal No. E141 of 2022) [2024] KECA 1417 (KLR) (11th October 2024)
Jurisdiction invoked
Section 18 of the Civil Procedure Act, Chapter 21 Laws of Kenya (transfer of suit to the High Court/ELC)

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, "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.