African Devine Church v Koech & 2 others (Environment and Land Miscellaneous Application E042 of 2025) [2025] KEELC 7586 (KLR)

Section 38 of the Limitation of Actions Act requires applications by a person claiming to be entitled to land by adverse possession to be made to the High Court. Following Sugawara vs Kiruti, 'High Court' must be construed as the Environment and Land Court under Article 162(2)(b). Section 9(a) of the Magistrates' Courts Act does not include adverse possession claims. Both courts are bound by the Court of Appeal decision under stare decisis.

Relying on Equity Bank Limited vs Bruce Mutie Mutuku and Albert Chaurembo Mumba (citing Kagenyi vs Musiramo), the court held that transfer cannot sanctify an incompetent suit. Since the only ground for the transfer was the lower court's lack of jurisdiction, and that ground was made out, no competent suit existed to transfer. The applicant's recourse is to withdraw the adverse possession claim and file afresh in the ELC.

The court distinguished between the two heads of claim in the plaint. While the adverse possession component is outside the Magistrates' Court's jurisdiction, the constructive trust claim falls within matters magistrates duly gazetted under the Environment and Land Court Act can handle.