Otando v Hongo (Environment and Land Miscellaneous Application E018 of 2025) [2026] KEELC 1619 (KLR)
The bottom line
#A Kenyan court confirmed that Magistrate's courts cannot hear adverse possession land claims, so a Kisumu land case was sent back to the Environment and Land Court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of Magistrate's courts over adverse possession claims
Magistrate's courts lack jurisdiction to determine adverse possession claims; the claim must be heard in the Environment and Land Court
The court found no denial that an adverse possession counterclaim existed in the suit. Relying on section 38 of the Limitation of Actions Act and the Court of Appeal decision in Sugawara vs Kiruti, the court held that Magistrate's courts lack jurisdiction over such claims, making re-transfer to the ELC necessary for the applicant to ventilate her claim.
Court's power to withdraw and retransfer a suit from a subordinate court
The ELC has power under section 18(1)(b) of the Civil Procedure Act to withdraw a suit pending in a subordinate court and retransfer it to the court from which it was withdrawn
The suit was originally filed in the ELC where the applicant filed a defence and counterclaim for adverse possession before the 2018 transfer to the Magistrate's court. The applicant could not be faulted for the transfer, having filed the counterclaim in a court with jurisdiction. Exercising section 18(1)(b), the court allowed re-transfer.
Legal principles established
#- Magistrate's courts lack jurisdiction to determine claims of adverse possession under section 38 of the Limitation of Actions Act
- The High Court/ELC may withdraw a suit pending in a subordinate court and retransfer it for trial and disposal under section 18(1)(b) of the Civil Procedure Act
Court orders
#- 1.Kisumu CMCELC No. 61 of 2018 is retransferred to the Environment and Land Court, Kisumu, for hearing and disposal
- 2.The suit to be mentioned before the Environment and Land Court, Kisumu, on 18th May 2026 for directions on disposal
- 3.Costs of the application to the Respondent
- Jurisdiction invoked
- Section 18(1)(b) of the Civil Procedure Act - power to withdraw suits pending in subordinate courts and retransfer them
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otando v Hongo (Environment and Land Miscellaneous Application E018 of 2025) [2026] KEELC 1619 (KLR)", Case Analysis (2026). Not stated in judgment (application dated 25th March, 2025 in Kisumu CM ELC No. 61 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1619/eng@2026-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.