Khasoa v Shah (Environment and Land Miscellaneous Case E061 of 2025) [2026] KEELC 952 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that adverse possession claims must be heard in the ELC, not magistrates' courts, and transferred the entire eviction suit.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant deserves the orders sought, namely transfer of Kakamega CMELC No. 109 of 2018 to the Environment and Land Court
Key legal issues
#Whether the Magistrates' court has jurisdiction over the applicant's adverse possession counterclaim
Magistrates' courts lack jurisdiction to determine adverse possession claims following the Court of Appeal's 2024 decision; the claim was lawfully filed in the subordinate court when filed (2022) but must now be determined by the ELC.
The court traced the law: a 2020 ELC decision held magistrates' courts had jurisdiction over adverse possession claims, and that was the position when the counterclaim was filed in 2022. The Court of Appeal's October 2024 decision in Pauline Chemuge Sugawara changed that position. Given the change in law, transfer to the ELC was proper rather than striking out the counterclaim.
Whether the eviction claim and the adverse possession counterclaim can be split between courts
No. The counterclaim is a defence to the eviction suit and cannot be split; hearing them in different courts would risk conflicting pronouncements and waste judicial time.
The court reasoned that the counterclaim being a defence to the suit before the trial court cannot be severed from the respondent's eviction claim. Parallel proceedings in two courts could produce conflicting outcomes and would not be an efficient use of judicial time, supporting transfer of the entire suit.
Whether the adverse possession claim is res judicata given prior proceedings
The res judicata objection, if well founded, falls to be determined by the trial court in the transferred suit, not by the court hearing the transfer application.
The respondent argued the counterclaim was conclusively determined in Kakamega High Court Civil Case No. 147 of 2010 (OS) and Kakamega Rent Restriction Case No. 8 of 2010. The court held it has no jurisdiction on a transfer application to pronounce on res judicata; that argument belongs to the trial court in the substantive suit.
Legal principles established
#- Pursuant to section 38(1) of the Limitation of Actions Act, the Environment and Land Court has jurisdiction to hear and determine claims of adverse possession.
- Following the Court of Appeal decision in Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiritu & 4 Others (October 2024), Magistrates' courts have no jurisdiction to hear and determine claims based on adverse possession.
- A trial court, not the transfer court, is the proper forum to determine a res judicata objection to a suit sought to be transferred.
Court orders
#- 1.Kakamega CM ELC CASE No. 109 OF 2018 is hereby transferred to this court (Environment and Land Court, Kakamega) for hearing and determination
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 18(1)(b)(i) of the Civil Procedure Act (power to transfer suits from subordinate courts)
Relief refused
#Costs of the application
The court made no order as to costs
Costs
I make no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This court has the jurisdiction to transfer a matter from the lower court to this court, as provided for in section 18 (1) (b) (i) of the Civil Procedure Act.
Section 38 (1) of the Limitation of Actions Act grants the Environment and Land Court the jurisdiction to hear and determine claims of adverse possession.
In the result, Kakamega CM ELC CASE No. 109 OF 2018 is hereby transferred to this court for hearing and determination. I make no order as to costs.
Issues in the judgment
#The judgment's heading/caption does not appear in the extract; the case title is reconstructed from the subject suit named in the prayers (Kakamega CMELC No. 109 of 2018 Shobhna Navnit Lalj Anek Shah V Kizito Aura and Antonina Khasoa), and the second defendant does not appear in the narrative.
The judgment states a superior court pronouncement was made in 2022 but the cited Court of Appeal decision is described as delivered in October 2024, creating ambiguity about the 2022 reference.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khasoa v Shah (Environment and Land Miscellaneous Case E061 of 2025) [2026] KEELC 952 (KLR)", Case Analysis (2026). Kakamega CMELC No. 109 of 2018 (subject file) - Notice of Motion dated 23rd September 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/952/eng@2026-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.