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ELCDismissedMolo MC-ELC No E053 of 2024 (transfer application)· [2025] KEELC 7393 (KLR)

Koskei v Rotich (Sued through Philip Marindany Chumo- Guardian Ad Litem) (Environment and Land Miscellaneous Application E046 of 2025) [2025] KEELC 7393 (KLR)

Environment and Land Court
30 October 2025
1,294 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled it cannot transfer a land case filed in the wrong court; adverse possession claims must be filed in the Environment and Land Court from the start.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (M. A. Odeny, J) determines a Notice of Motion dated 4th June 2025 in which Joseph Kipngeno Koskei sought the transfer of Molo MC-ELC No E053 of 2024 from the Chief Magistrate's Court at Molo to the Environment and Land Court at Nakuru. The Applicant deponed that his suit against Philip Marindany Chumo (suing through his guardian ad litem) sought a declaration of adverse possession over Title No. Nakuru/Korao Settlement Scheme/1223, and that the Court of Appeal in Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiritu (Civil Appeal No. E141 of 2022) had held that Magistrates' Courts lack jurisdiction over adverse possession claims. The Respondent opposed, contending the suit is really an action in trespass, with adverse possession pleaded only in the alternative, and that the application was brought in bad faith. The court adopted the Court of Appeal's binding holding that Section 38 of the Limitation of Actions Act reserves adverse possession claims to the Environment and Land Court to the exclusion of Magistrates' Courts, and that pecuniary jurisdiction under Section 7 of the Magistrates Courts Act is ill-suited to such claims. However, applying Obae v Ogeko, the court held that transfer is only appropriate where a matter was initially filed in the ELC and erroneously transferred; a transfer cannot confer jurisdiction where none exists. Since the plaint primarily claims trespass with adverse possession in the alternative, the Applicant was directed either to withdraw the suit and file afresh in the ELC or abandon the adverse possession claim. The application was dismissed with costs to the Respondent on 30th October 2025.

Key legal issues

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Jurisdiction of Magistrates' Courts over adverse possession claims

Holding

Magistrates' Courts have no jurisdiction to determine adverse possession claims per the binding Court of Appeal decision in Sugawara v Kiritu; such claims lie in the Environment and Land Court under Section 38 of the Limitation of Actions Act

Reasoning

The court adopted the Court of Appeal's holding that Section 38 of the Limitation of Actions Act limits hearing and determination of adverse possession claims to the Environment and Land Court to the exclusion of Magistrates' Courts. Pecuniary jurisdiction under Section 7 of the Magistrates Courts Act is also problematic where the value of land is unknown. That pronouncement binds subordinate courts.

p. 3
02

Whether transfer under Section 18 Civil Procedure Act was appropriate

Holding

No. The plaint is principally a trespass action with adverse possession pleaded only in the alternative; transfer cannot confer jurisdiction on a court that lacked it, and the Applicant must elect between withdrawing the adverse possession claim and filing in the ELC, or abandoning it and proceeding with trespass

Reasoning

The court noted the plaint lists particulars of trespass with adverse possession as an alternative prayer. Because a transfer cannot breathe life into a suit filed in a forum without jurisdiction, and transfer is only appropriate where a matter was initially filed in the ELC and erroneously transferred, the application failed. The Applicant was given the option of withdrawal and fresh filing or abandoning the adverse possession claim.

p. 3

Legal principles established

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  • Magistrates' Courts lack jurisdiction to hear and determine claims founded on the doctrine of adverse possession, which are reserved to the Environment and Land Court under Section 38 of the Limitation of Actions Act
  • A transfer of a suit cannot cure an inherent lack of jurisdiction in the court to which or from which transfer is sought

Court orders

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  1. 1.The Notice of Motion application dated 4th June 2025 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 18(1)(b)(ii)
  • Limitation of Actions ActSection 38
  • Magistrates Courts ActSection 7

Cases cited (6)

  • Kagenyi v Musiramo & Another
    [1968] EA 43
  • Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiritu & Others
    Civil Appeal No. E141 of 2022, judgment of 11 October 2024
  • Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel
    [2016] eKLR
  • Omollo v Nyamunga
    (Land Case 53 of 2020) [2025] KEELC 120 (KLR)
  • Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Obae & another v Ogeko (Suing as the Legal Representative of the Late Edward Ogeko Keburi)
    (Environment and Land Appeal E018 of 2021) [2025] KEELC 1204 (KLR) (13 March 2025)
Jurisdiction invoked
Section 18(1)(b)(ii) of the Civil Procedure Act (transfer of suits)

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, "Koskei v Rotich (Sued through Philip Marindany Chumo- Guardian Ad Litem) (Environment and Land Miscellaneous Application E046 of 2025) [2025] KEELC 7393 (KLR)", Case Analysis (2025). Molo MC-ELC No E053 of 2024 (transfer application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7393/eng@2025-10-30

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