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ELCPartially AllowedNotice of Motion dated 20th August 2025

Chelangat v Kiplimo & 2 others (Environment and Land Miscellaneous Application E026 of 2025) [2026] KEELC 165 (KLR)

Environment and Land Court
21 January 2026
952 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 transferred an adverse possession land case to the Environment and Land Court, confirming that Magistrates' Courts cannot hear such claims.

What this practically means

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Executive summary

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The applicant, by Notice of Motion dated 20th August 2025, sought transfer of Kapsabet Senior Principal Magistrate's ELC Case No. E036 of 2023 to the Environment and Land Court at Kapsabet, contending that the suit, founded on adverse possession under Section 38 of the Limitation of Actions Act, falls within the exclusive jurisdiction of the Environment and Land Court, and relying on the Court of Appeal's decision in Sugawara v Kiruti (2024). The 1st and 2nd respondents opposed, arguing that a suit filed in a court without jurisdiction is a nullity and that the application was an abuse of process, prompted only by a pending preliminary objection. The 3rd respondent filed a memorandum of appearance only. After considering written submissions, the court held that the Magistrate's Court lacks jurisdiction over adverse possession claims, applying Sugawara and Republic v Karisa Chengo. It rejected the nullity argument, holding that guided by Article 159(2) of the Constitution and following DT Dobie v Muchina and Safaricom PLC v Kinuthia, the object is to sustain rather than dismiss the suit. The application was allowed, with the suit transferred to the Environment and Land Court for hearing and determination on merits, and no orders as to costs were made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application has merit
  2. 2.What appropriate orders should issue for the ends of justice

Key legal issues

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01

Whether the Magistrate's Court has jurisdiction over a claim founded on adverse possession under Section 38 of the Limitation of Actions Act

Holding

The Magistrate's Court lacks jurisdiction over adverse possession claims; such claims vest exclusively in the Environment and Land Court

Reasoning

The suit before the Magistrate's Court is for adverse possession in respect of land reference number NANDI/KIPSIGAK/106. Section 38 of the Limitation of Actions Act vests exclusive jurisdiction over adverse possession claims in the Environment and Land Court. The Court of Appeal in Sugawara v Kiruti (2024) held that Magistrates' Courts have no jurisdiction to entertain such claims, and this binds the court.

p. 2
02

Whether a suit filed in a court without jurisdiction is a nullity that cannot be transferred

Holding

The court declined to dismiss the suit as a nullity; instead, guided by Article 159(2) of the Constitution and the overriding objective, it sustained the suit by transferring it

Reasoning

The respondents argued, relying on Nickson M Chanda v Angela Kamwaria, that a suit filed in a court without jurisdiction is a nullity. The court held that the essence of the transfer jurisdiction is to sustain the suit rather than dismiss it, invoking Article 159(2)(b), (d) and (e) and Articles 50(1), 25(c) and 48, and following DT Dobie and Safaricom PLC v Kinuthia.

p. 2

Legal principles established

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  • Magistrates' Courts lack jurisdiction to entertain adverse possession claims, which fall within the exclusive jurisdiction of the Environment and Land Court
  • Lack of jurisdiction renders a court's proceedings void
  • Where a suit is founded before a court without jurisdiction, the appropriate course is to sustain rather than dismiss it, guided by the Constitution and the law under which it was instituted

Court orders

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  1. 1.Kapsabet Senior Principal Magistrate's ELC Case No. E036 of 2023 transferred from the Kapsabet Senior Principal Magistrate's Court to the Environment and Land Court for hearing and determination on merits
  2. 2.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B and 18 of the Civil Procedure Act (Cap 21); Section 3 of the Environment and Land Court Act, 2015 (2011); Article 159(2) of the Constitution of Kenya, 2010

Relief refused

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Costs of the application

The court ordered no orders as to costs despite the respondents seeking costs

p. 3

Costs

No orders as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is thus, my considered view that the Magistrate's Court is devoid of jurisdiction over the suit before it. Thus, the application is meritorious and the 1st and 2nd Respondents' opposition fail to thwart it.
p. 3Jurisdiction of Magistrates' Courts over adverse possession claims
Accordingly, the application dated 20th August 2025 is hereby allowed in terms of order 3 for transfer of suit as stated in paragraph 1 (a) hereinabove with no orders as to costs.
p. 3Final orders - transfer of suit
The essence, is to sustain the suit sought to be transferred rather than dismiss it
p. 2Substantive justice over technical nullity

Issues in the judgment

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minor

The judgment records the respondents' memorandum of appearance as dated 31st October 2024, while the replying affidavit of the same respondents is dated 31st October 2025; the 2024 date appears to be an error.

minor

The judgment cites the Environment and Land Court Act as '2015 (2011)', an internally inconsistent year reference.

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, "Chelangat v Kiplimo & 2 others (Environment and Land Miscellaneous Application E026 of 2025) [2026] KEELC 165 (KLR)", Case Analysis (2026). Notice of Motion dated 20th August 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/165/eng@2026-01-21

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