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ELCPartially AllowedCivil Suit ELC No. E96 of 2021 (Chief Magistrate's Court Machakos) – Transfer Application dated 10th June 2025· [2026] KEELC 290 (KLR)

Ngina & 5 others (Defending and Suing in Their Personal Capacity as Well as Representatives of the Estate of John Muinde Musau – Deceased) v Mbaluku (Environment and Land Miscellaneous Application E056 of 2025) [2026] KEELC 290 (KLR)

High Court of Kenya
28 January 2026
1,088 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed magistrates cannot decide adverse possession claims; a Machakos land case was moved to the Environment and Land Court instead of being thrown out.

What this practically means

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Executive summary

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This was a transfer application dated 10th June 2025, brought under Order 18(1b) of the Civil Procedure Act and supported by the affidavit of Salome Mueni Mbai, seeking the transfer of Civil Suit ELC No. E96 of 2021 from the Chief Magistrate's Court at Machakos to the High Court, plus costs. The underlying suit was filed by the Respondent against the Applicants seeking a permanent injunction restraining them from entering, disposing of or interfering with land parcel No. Muputi/Kiima Kimwe/3876. The Applicants, in their defence and counter-claim, sought a declaration of adverse possession on the basis of over 12 years' residence on the land. The Respondent opposed, arguing that the suit was properly filed before a competent court and that the counter-claim was an afterthought. The court framed the question whether Magistrates' Courts can adjudicate adverse possession claims, and applying binding Court of Appeal authority (Sugawara v Kiruti) and High Court authority (Njoki Wainaina) construing sections 37 and 38 of the Limitation of Actions Act, held that magistrates' courts lack jurisdiction over such claims; the trial court could therefore not determine the counter-claim and the suit would not be fully determined. Invoking sections 17 and 18 of the Civil Procedure Act, the decision in John Mwangi Karanja v Alfred Ndiangui, and Mugendi v Kenyatta University on transfers among courts, and exercising its inherent discretionary powers, the court transferred the matter to ELC Machakos for hearing and determination, with no orders as to costs. It is so ordered.

Key legal issues

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01

Whether the Chief Magistrate's Court has jurisdiction over a counter-claim for adverse possession

Holding

The court held that Magistrates' Courts, including the trial court, lack jurisdiction to adjudicate adverse possession claims; such claims fall within the exclusive competence of the Environment and Land Court under section 38 of the Limitation of Actions Act.

Reasoning

The court relied on the Court of Appeal's decision in Sugawara v Kiruti and the High Court's decision in Njoki Wainaina, both construing sections 37 and 38 of the Limitation of Actions Act as confining adverse possession claims to the Environment and Land Court. Since the Applicants' counter-claim sought adverse possession based on over 12 years' occupation, the trial court could not fully determine the suit.

p. 2
02

Whether the suit should be transferred to the High Court rather than struck out for want of jurisdiction

Holding

The court transferred the suit to ELC Machakos rather than striking it out, applying sections 17 and 18 of the Civil Procedure Act and the principle that a suit filed in the wrong forum should be forwarded to the court with jurisdiction in the interests of justice.

Reasoning

Following John Mwangi Karanja v Alfred Ndiangui and Daniel N. Mugendi v Kenyatta University, the court treated transfer as a procedural tool serving the overriding objective. The court invoked its inherent and wide discretionary powers to effect the transfer so the dispute could be fully and finally determined.

p. 3

Legal principles established

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  • Magistrates' Courts lack jurisdiction to determine claims of adverse possession, which are reserved to the Environment and Land Court by virtue of sections 37 and 38 of the Limitation of Actions Act.
  • Transfer of a suit filed in the wrong court is essentially a procedural issue serving the interests of justice and the overriding objective, not a jurisdictional bar.

Court orders

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  1. 1.Civil Suit ELC No. E96 of 2021 at the Chief Magistrate's Court Machakos is transferred to ELC Machakos (the High Court) for hearing and determination
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActOrder 18(1b)
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure ActSections 17 and 18
  • Limitation of Actions ActSections 37 and 38

Cases cited (4)

  • Sugawara vs Kiruti (Sued in her Capacity as the Administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others
    (Civil Appeal E141 of 2022) (2024) KECA 1417 (KLR) (11 October 2024)
  • Njoki Wainaina vs Josephat Thuo Githachuri & 3 others; National Land Commission & another (Interested Parties)
    (2021) eKLR
  • John Mwangi Karanja vs Alfred Ndiangui
    (2011) eKLR
  • Daniel N. Mugendi vs Kenyatta University & 3 others
    (2013) eKLR
Jurisdiction invoked
Sections 17 and 18 of the Civil Procedure Act (transfer of suits between subordinate courts and the High Court) together with the court's inherent discretionary powers

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ngina & 5 others (Defending and Suing in Their Personal Capacity as Well as Representatives of the Estate of John Muinde Musau – Deceased) v Mbaluku (Environment and Land Miscellaneous Application E056 of 2025) [2026] KEELC 290 (KLR)", Case Analysis (2026). Civil Suit ELC No. E96 of 2021 (Chief Magistrate's Court Machakos) – Transfer Application dated 10th June 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/290/eng@2026-01-28

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