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ELCPartially AllowedKakamega CMC ELC Case No. E130 of 2021 (transfer application)· [2026] KEELC 296 (KLR)

Nyapola & another v Ndunde (Environment and Land Miscellaneous Case E024 of 2025) [2026] KEELC 296 (KLR)

Environment and Land Court
28 January 2026
ANA. NYUKURI
586 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed that adverse possession cases must now be heard in the ELC, and older Magistrates Court cases can be transferred there.

What this practically means

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Executive summary

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The applicants moved the Environment and Land Court at Kakamega by Notice of Motion dated 6th April 2025 seeking transfer of Kakamega CMC ELC Case No. E130 of 2021, an adverse possession claim they had filed in the Chief Magistrates Court, to the ELC for hearing and determination, with costs in the cause. The application was supported by the 2nd applicant's affidavit sworn on 6th April 2025. Although the respondent indicated in submissions that he had filed grounds of opposition dated 28th April 2025, nothing appeared on the CTS; both parties filed submissions. The court framed a single issue: whether the applicants deserved the orders sought. Relying on section 18(1)(b)(i) of the Civil Procedure Act, the court confirmed its power to transfer matters from the lower court. It traced the jurisdictional landscape: section 38(1) of the Limitation of Actions Act grants the ELC jurisdiction over adverse possession claims, but Patrick Ndegwa Munyua v Benjamin Kiiru & Another (2020) had held Magistrates Courts possessed such jurisdiction, and many matters were lawfully determined by Magistrates between 2020 and October 2024. The Court of Appeal in Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiritu & 4 Others (October 2024) then held that Magistrates Courts have no jurisdiction over adverse possession claims. The court rejected the respondent's submission that the suit was a nullity for want of jurisdiction, holding that when filed in 2021 the suit was lawful given the then-existing superior court pronouncement. The application was allowed; the case was transferred to the ELC at Kakamega, with no order as to costs.

Key legal issues

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Jurisdiction of Magistrates Courts over adverse possession claims

Holding

Magistrates Courts have no jurisdiction to determine adverse possession claims following the Court of Appeal's October 2024 decision; section 38(1) of the Limitation of Actions Act vests that jurisdiction in the Environment and Land Court.

Reasoning

The court traced the shift in the law: in Patrick Ndegwa Munyua v Benjamin Kiiru & Another (2020, KEELC) the ELC held Magistrates Courts had jurisdiction over adverse possession claims, and many matters were lawfully determined by Magistrates between 2020 and October 2024. However, the Court of Appeal in Pauline Chemuge Sugawara (October 2024) held that Magistrates Courts lack jurisdiction over such claims. The suit, filed in 2021 when the superior court pronouncement supported the Magistrates Court's jurisdiction, was therefore not a nullity, and the change in position in 2024 justified transfer.

p. 2
02

Whether the transfer application should be allowed

Holding

The application was merited and the case was transferred from the Chief Magistrates Court to the ELC at Kakamega.

Reasoning

The court found it had power under section 18(1)(b)(i) of the Civil Procedure Act to transfer matters from the lower court. Because the Magistrates Court no longer had jurisdiction over adverse possession claims following the October 2024 Court of Appeal decision, the applicants' prayer to bring the suit to the ELC was proper, notwithstanding the respondent's argument that the suit was a nullity for having been filed in a court without jurisdiction.

p. 2

Legal principles established

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  • Pursuant to the Court of Appeal's October 2024 decision in Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiritu & 4 Others, Magistrates Courts have no jurisdiction to hear and determine claims based on adverse possession
  • A suit filed in a Magistrates Court while a superior court decision permitted such filings (2020-October 2024) was lawfully filed and is not a nullity; such matters may be transferred to the ELC following the change in the legal position

Court orders

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  1. 1.Kakamega CMC ELC Case No. E130 OF 2021 is hereby transferred from Kakamega Chief Magistrates Court to this court (ELC Kakamega) for hearing and determination
  2. 2.No order as to costs
Jurisdiction invoked
Section 18(1)(b)(i) of the Civil Procedure Act

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, "Nyapola & another v Ndunde (Environment and Land Miscellaneous Case E024 of 2025) [2026] KEELC 296 (KLR)", Case Analysis (2026). Kakamega CMC ELC Case No. E130 of 2021 (transfer application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/296/eng@2026-01-28

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