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ELCPartially AllowedNot stated in judgment (application dated 12th May 2025)· [2025] KEELC 8215 (KLR)

Amasitsa v David (Environment and Land Case E003 of 2025) [2025] KEELC 8215 (KLR)

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

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Kenya's Environment and Land Court confirmed that land cases involving adverse possession must be handled by the ELC, not magistrates' courts, following a 2024 Court of Appeal ruling.

What this practically means

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Executive summary

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The applicant, who together with her husband is sued in Butali SPMCELC Case No. 47 of 2021 and has filed a defence and counterclaim based on adverse possession, moved the Environment and Land Court at Kakamega by Notice of Motion dated 12th May 2025 seeking transfer of that suit to the ELC on the ground that magistrates' courts lack jurisdiction over adverse possession claims. The respondent opposed, alleging non-disclosure of earlier proceedings (ELC Case No. 130 of 2018, dismissed), that defences had closed and the matter was set for submissions, that the application came four years late, and that the adverse possession claim was res judicata. The court framed a single issue: whether the applicant deserved the orders sought. Relying on section 18 of the Civil Procedure Act, it confirmed its power to transfer. It traced the jurisprudence: a 2020 ELC decision (Patrick Ndegwa Munyua) had conferred adverse possession jurisdiction on magistrates' courts, under which the 2021 suit was lawfully filed; but in October 2024 the Court of Appeal (Pauline Chemuge Sugawara) held magistrates' courts lack such jurisdiction. Transfer was therefore proper. The res judicata objection was held to be a matter for the suit itself, not the transfer application. The court allowed the application, transferred Butali SPMELC Case No. 47 of 2021 to the ELC, and made no order as to costs.

Key legal issues

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01

Whether the applicant deserved an order transferring Butali SPMCELC No. 47 of 2021 (which includes an adverse possession counterclaim) to the ELC

Holding

Application allowed; the suit was transferred because at filing in 2021 magistrates' courts had jurisdiction over adverse possession claims per the 2020 ELC decision, but after the Court of Appeal's October 2024 decision those courts lack such jurisdiction, so transfer to the ELC is proper.

Reasoning

The court traced the jurisdictional position: in 2020 the ELC held magistrates' courts could determine adverse possession claims, and suits filed between 2020 and October 2024 were lawfully before magistrates. However, in October 2024 the Court of Appeal held magistrates' courts have no jurisdiction over adverse possession claims. Since the counterclaim in Butali SPMCELC 47 of 2021 is based on adverse possession and the law has changed, transfer to the ELC for hearing and determination is proper.

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02

Whether the res judicata objection arising from ELC Case No. 130 of 2018 could defeat the transfer application

Holding

The res judicata argument, though open to the respondent, could only be entertained in the underlying suit and not in the transfer application.

Reasoning

The court held that while the respondent may argue the Butali claim is res judicata given the earlier dismissed ELC suit, the proper forum for that plea is the suit itself, now the ELC. Raising it at the transfer stage after four years and with defences closed was misplaced; only a court with jurisdiction over the suit can pronounce it res judicata.

p. 2

Legal principles established

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  • The High Court/ELC has power under section 18 of the Civil Procedure Act to transfer a matter from a lower court to itself.
  • Section 38(1) of the Limitation of Actions Act confers jurisdiction over adverse possession claims on the Environment and Land Court.
  • A plea of res judicata against a transferred suit must be raised and determined in the suit itself, not in the transfer application.

Court orders

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  1. 1.Butali SPMELC Case No. 47 of 2021 is transferred to the Environment and Land Court for hearing and determination
  2. 2.No order as to costs
Jurisdiction invoked
Section 18 of the Civil Procedure Act (power to transfer suits from subordinate courts)

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, "Amasitsa v David (Environment and Land Case E003 of 2025) [2025] KEELC 8215 (KLR)", Case Analysis (2025). Not stated in judgment (application dated 12th May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8215/eng@2025-11-19

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