Njogu v Mathui & 2 others (Miscellaneous Application E018 of 2025) [2025] KEELC 6979 (KLR)
The bottom line
#A Kenyan court cannot transfer a land case filed in the wrong court—you must withdraw it and start fresh in the right court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Magistrates' Court over adverse possession claims
Following the Court of Appeal in Sugawara v Kiruti, hearing and determination of adverse possession claims is limited to the Environment and Land Court to the exclusion of the Magistrates' Court.
Sections 37 and 38 of the Limitation of Actions Act refer such claims to the 'High Court', which under Article 162(2)(b) means the Environment and Land Court. Section 9(a) of the Magistrates' Courts Act, though expanding magistrates' jurisdiction, does not include adverse possession claims. Jurisdiction flows from the Constitution or statute and cannot be arrogated.
Whether a suit filed without jurisdiction can be transferred under Section 18 of the Civil Procedure Act
No. A suit filed devoid of jurisdiction is dead on arrival and a nullity; it cannot be transferred to a competent court, even by consent or under the overriding objective.
Relying on Phoenix of E.A. Assurance v Thiga, Equity Bank v Mutie Mutuku and Abraham Mwangi Wamigwi, the court held that a court lacking jurisdiction must down its tools at once and that courts can only transfer a cause whose existence the law recognizes; transferring a nullity would sanctify an incompetent suit.
Nature of a counterclaim and the appropriate remedy for the Applicant
A counterclaim is a separate and independent cross-claim; where the primary court lacks jurisdiction over it, the defendant should file a separate suit in the competent court.
Although a counterclaim is a fresh suit joined for convenience to avoid multiplicity and survives discontinuance of the main suit, the court held that the existence of an adverse possession counterclaim in a boundary dispute before the Magistrates' Court does not justify transfer; the Applicant should institute a separate action in the ELC.
Availability of a limitation defence in the Magistrates' Court
The lack of jurisdiction over an adverse possession claim does not preclude the defendant from raising limitation of actions under Section 7 of the Limitation of Actions Act as a defence to the claim for recovery of land.
Section 7 bars actions to recover land after twelve years from when the right of action accrued. A person in adverse possession may deploy the statute defensively to argue that the plaintiff's claim is time-barred, without the court adjudicating a standalone adverse possession claim.
Legal principles established
#- A suit or counterclaim filed in a court lacking jurisdiction is a nullity and cannot be cured by transfer under Section 18 of the Civil Procedure Act; the only remedy is to withdraw it and file a competent suit in the court seized of jurisdiction.
- A counterclaim is a separate and independent action by the defendant; where the court hearing the primary suit lacks jurisdiction over the counterclaim, the defendant should file a separate suit.
- A defendant claiming adverse possession may still raise limitation of actions as a defence under Section 7 of the Limitation of Actions Act even in the Magistrates' Court.
Court orders
#- 1.The Notice of Motion application dated 12th March 2025 is dismissed
- 2.Costs of the application are awarded to the 1st Respondent
- Jurisdiction invoked
- Section 18(1)(b) of the Civil Procedure Act, CAP 21; Article 165(3), 165(6) and 165(7) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njogu v Mathui & 2 others (Miscellaneous Application E018 of 2025) [2025] KEELC 6979 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6979/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.