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ELCAllowedKisii MCELC No. 15 of 2019 (application dated 4 July 2025)· [2025] KEELC 8078 (KLR)

Makinda & another v Otundo & another (Environment and Land Miscellaneous Case E013 of 2025) [2025] KEELC 8078 (KLR)

Environment and Land Court
19 November 2025
MSMunyao Sila
355 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Magistrates' Courts cannot hear adverse possession claims, so land suits involving such counterclaims must be moved to the Environment and Land Court.

What this practically means

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Executive summary

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This was an application dated 4 July 2025 by the defendants in Kisii MCELC No. 15 of 2019, pending before the Chief Magistrates' Court at Kisii, seeking transfer of the suit to the Environment and Land Court at Kisii. The applicants based the application on a counterclaim by the 2nd applicant for adverse possession of a portion measuring 25 x 100 feet out of land parcel Nyaribari Chache/B/B/Boburia/2701 before subdivision into parcel Nyaribari Chache/B/B/Boburia/10888, a claim the Magistrates' Court has no jurisdiction to entertain. The applicants annexed a copy of the 2nd applicant's defence and counterclaim in support. The respondents did not oppose the application. The court noted it could not ascertain the nature of the main claim since the plaint was not annexed, but held that the adverse possession counterclaim alone justified transfer, relying on the Court of Appeal decision in Pauline Chemuge Sugawara vs Nairuko Ene Mutarakwa Kiruti & 3 Others, which settled that Magistrates' Courts lack jurisdiction to hear adverse possession claims. The court declined to fault the applicants for raising the counterclaim in a suit they did not commence. The application was allowed, the suit was ordered transferred to the Environment and Land Court at Kisii for disposal, and there were no orders as to costs. Judgment was delivered by Munyao Sila J on 19 November 2025.

Key legal issues

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Jurisdiction of the Magistrates' Court over adverse possession claims and the power to transfer the suit to the ELC

Holding

Since the counterclaim is for adverse possession, which the Magistrates' Court cannot hear, the application for transfer of the entire suit to the ELC at Kisii is allowed.

Reasoning

The applicants, defendants in Kisii MCELC No. 15 of 2019, raised a counterclaim for adverse possession of a portion of land parcel Nyaribari Chache/B/B/Boburia/2701. Relying on the Court of Appeal decision in Pauline Chemuge Sugawara vs Nairuko Ene Mutarakwa Kiruti & 3 Others, the court held that Magistrates' Courts lack jurisdiction over adverse possession claims. The applicants could not be faulted for raising the counterclaim in proceedings they did not commence, and the respondents did not oppose the transfer.

p. 2

Legal principles established

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  • Magistrates' Courts do not have jurisdiction to hear claims of adverse possession.

Court orders

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  1. 1.The application is allowed and the suit Kisii MCELC No. 15 of 2019 is transferred to the Environment and Land Court at Kisii for disposal
  2. 2.No orders as to the costs of the application

Authorities

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Cases cited (1)

  • Pauline Chemuge Sugawara vs Nairuko Ene Mutarakwa Kiruti & 3 Others
    Civil Appeal No. E141 of 2022
Jurisdiction invoked
Transfer of a suit to the Environment and Land Court for disposal, the Magistrates' Court lacking jurisdiction over adverse possession claims

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, "Makinda & another v Otundo & another (Environment and Land Miscellaneous Case E013 of 2025) [2025] KEELC 8078 (KLR)", Case Analysis (2025). Kisii MCELC No. 15 of 2019 (application dated 4 July 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8078/eng@2025-11-19

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