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ELCPartially AllowedNot stated in the judgment· [2026] KEELC 696 (KLR)

Analo v Shinali (Sued on behalf of the Estate of Rajiko Okwaro Isack) (Environment and Land Miscellaneous Case E023 of 2025) [2026] KEELC 696 (KLR)

Environment and Land Court
4 February 2026
ANA. Nyukuri
728 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The applicant moved the Environment and Land Court at Kakamega by Notice of Motion dated 4th April 2025 seeking transfer of Butere MC ELC No. E046 of 2022 (OS), an adverse possession claim, from the Principal Magistrates Court at Butere to the ELC for hearing and final disposal. The application was supported by the applicant's affidavit sworn on 4th April 2025, grounded on the contention that following the Court of Appeal's determination in Civil Appeal No. E141 of 2022, Magistrates Courts no longer have jurisdiction over adverse possession claims. The respondent opposed through a preliminary objection dated 21st July 2025 arguing the application was incompetent as it sought to transfer a suit filed in a court without jurisdiction. The court identified a single issue: whether the applicant deserved the orders sought. Relying on section 18(1)(b)(i) of the Civil Procedure Act, it confirmed its power to transfer the suit. It noted the conflicting ELC authorities - Patrick Ndegwa Munyua (magistrates have jurisdiction) and Philip Kithaka (they do not) - resolved by the Court of Appeal's October 2024 decision in Pauline Chemuge Sugawara, which held magistrates have no jurisdiction over adverse possession claims. Since the Butere suit was filed when magistrates had jurisdiction, the preliminary objection lacked justification. Guided by section 1A of the Civil Procedure Act, the court found transfer just, fair, expeditious and affordable, allowed the application, transferred the suit to the ELC, and made no order as to costs. Judgment delivered at Kakamega on 4th February 2026 by A. Nyukuri J.

Key legal issues

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Whether the adverse possession suit filed in the Magistrates Court, whose jurisdiction was subsequently ousted by the Court of Appeal's decision in Sugawara, should be transferred to the ELC rather than dismissed

Holding

The suit was competently filed when Magistrates Courts had jurisdiction per Patrick Ndegwa Munyua; the subsequent Sugawara decision removed that jurisdiction, and in the interests of justice under Section 1A of the Civil Procedure Act the suit should be transferred to the ELC, not dismissed.

Reasoning

The court traced the conflicting ELC decisions on magistrates' jurisdiction over adverse possession claims, noting that at the time of filing, jurisdiction existed per Patrick Ndegwa Munyua. The Court of Appeal's October 2024 decision in Sugawara settled the law by ousting magistrates' jurisdiction. Since jurisdiction was valid at filing, the preliminary objection lacked justification. Guided by Section 1A's overriding objective, transfer was just, fair and expeditious.

p. 2

Legal principles established

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  • The Environment and Land Court has jurisdiction under section 18(1)(b)(i) of the Civil Procedure Act to transfer a suit from the Magistrates Court to itself
  • A suit filed when the Magistrates Court had jurisdiction is not defeated by a subsequent removal of that jurisdiction; transfer rather than dismissal is the just course

Court orders

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  1. 1.Butere MC ELC CASE No. E046 of 2022 (OS) transferred from the Magistrates Court at Butere to the Environment and Land Court for hearing and determination
  2. 2.No order as to costs
Jurisdiction invoked
Section 18(1)(b)(i) of the Civil Procedure Act; Section 38(1) of the Limitation of Actions 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, "Analo v Shinali (Sued on behalf of the Estate of Rajiko Okwaro Isack) (Environment and Land Miscellaneous Case E023 of 2025) [2026] KEELC 696 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/696/eng@2026-02-04

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