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ELCDismissedNotice of Motion dated 18/02/2025 (in Thika ELC matter; suit sought to be transferred: Thika MC ELC No. E125 of 2024 - Joseph Mbaria Muraya vs James Kibunja)· [2025] KEELC 7784 (KLR)

Kibunja v Muraya (Environment and Land Miscellaneous Case E016 of 2025) [2025] KEELC 7784 (KLR)

Environment and Land Court
12 November 2025
MOMOGENI
3,854 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 that adverse possession claims belong only in the Environment and Land Court, and a wrongly filed suit cannot be fixed by transfer.

What this practically means

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Executive summary

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The Applicant, the defendant in Thika MC ELC No. E125 of 2024 (Joseph Mbaria Muraya v James Kibunja), moved the Environment and Land Court at Thika by Notice of Motion dated 18/02/2025 under Sections 18, 1A, 1B and 3A of the Civil Procedure Act and Orders 37 and 51 of the Civil Procedure Rules, seeking a stay of the lower court proceedings and transfer of the suit to the ELC. He argued that his defence included a counterclaim for adverse possession over Gatuanyaga/Ngoliba Block 12/1332, a claim outside the Magistrates' Court's jurisdiction. The Respondent, the plaintiff and registered owner, opposed the application as frivolous and an abuse of process, asserting the Applicant had never adversely occupied the land. No submissions were filed. The court framed three issues: the jurisdiction of the Magistrate's Court when the suit was filed, the power to transfer, and costs. Relying on the Court of Appeal's decision in Sugawara v Kiruti, the court held that Magistrates' Courts never had jurisdiction over adverse possession claims, which lie exclusively in the ELC under Section 38(1) of the Limitation of Actions Act read with Section 13 of the ELC Act. It further held, applying Kagenyi v Musiramo, Equity Bank v Mutie and Phoenix Assurance v Thiga, that a suit filed in a court without jurisdiction is a nullity, dead on arrival and not transferable under Section 18; the proper remedy is withdrawal or striking out and refiling in the ELC without triggering res judicata. The Motion was dismissed with costs to the Respondent.

Key legal issues

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01

Jurisdiction of Magistrates' Courts over adverse possession claims

Holding

Magistrates' Courts never had jurisdiction over adverse possession claims; no statute confers it, and the Court of Appeal in Sugawara v Kiruti confirmed such claims belong to the ELC

Reasoning

The court examined Section 7(3) and 9 of the Magistrates' Court Act and Section 26 of the ELC Act, noting that adverse possession claims are not among the matters specified for Magistrates. Section 38(1) of the Limitation of Actions Act vests the jurisdiction in the High Court, which the ELC, as a court of equal status, exercises. The Court of Appeal's decision clarified rather than divested jurisdiction.

p. 5
02

Whether an incompetent suit filed in a court without jurisdiction can be transferred

Holding

No. A suit commenced in a court without jurisdiction is a nullity and cannot be transferred under Section 18 of the Civil Procedure Act

Reasoning

Relying on Kagenyi v Musiramo (via Mumba), Equity Bank v Mutie and Phoenix Assurance v Thiga, the court held that an order for transfer cannot be made unless the suit was brought in a court with jurisdiction in the first instance. Transferring an incompetent suit would sanctify it. The proper remedies are withdrawal or striking out with refiling in the ELC, without triggering res judicata.

p. 3

Legal principles established

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  • Magistrates' Courts have no jurisdiction over claims for adverse possession; such claims lie in the Environment and Land Court under Section 38(1) of the Limitation of Actions Act
  • A suit filed in a Court without jurisdiction is a nullity and cannot be transferred under Section 18 of the Civil Procedure Act
  • A suit filed without jurisdiction is dead on arrival and cannot be remedied; the only remedy is withdrawal and refiling in a competent court

Court orders

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  1. 1.The Notice of Motion dated 18/02/2025 is dismissed with costs to the Respondent
Jurisdiction invoked
Sections 18, 1A, 1B and 3A of the Civil Procedure Act; Articles 162(2)(b) and 169(2) of the Constitution

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, "Kibunja v Muraya (Environment and Land Miscellaneous Case E016 of 2025) [2025] KEELC 7784 (KLR)", Case Analysis (2025). Notice of Motion dated 18/02/2025 (in Thika ELC matter; suit sought to be transferred: Thika MC ELC No. E125 of 2024 - Joseph Mbaria Muraya vs James Kibunja). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7784/eng@2025-11-12

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