Muthach (Suing on His Behalf as Legal Representative of Alex Onyango) & another v Mbala & another (Enviromental and Land Originating Summons E039 of 2025) [2026] KEELC 2023 (KLR)
The bottom line
#Siaya's Environment and Land Court took over a land dispute from the Magistrates' Court, confirming magistrates cannot decide adverse possession claims in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Magistrates' Court over adverse possession claims
The Magistrates' Court lacks jurisdiction to entertain claims for adverse possession notwithstanding the expansion of its jurisdiction under the Magistrates' Court Act; such claims are reserved for the Environment and Land Court.
Relying on the Court of Appeal decision in Sugawara v Kiruti, the court noted that Section 9 of the Magistrates' Court Act, which specifies matters for determination by magistrates' courts, does not include claims for adverse possession. The decision, delivered on 11/10/2024, is binding on the court, meaning the trial court was not seized of the requisite jurisdiction over the counterclaim.
Whether a defective counterclaim can be cured by transfer under section 18 of the Civil Procedure Act
No. A counterclaim filed in a court lacking jurisdiction is a nullity ab initio and cannot be sanctified by transfer to a competent court.
Applying Equity Bank Limited v Bruce Mutie Mutuku, the court held that parties cannot by consent confer jurisdiction, and transferring an incompetent suit for want of jurisdiction to a competent court is illegal because no competent suit exists capable of being transferred. Nothing comes out of a nullity.
Whether the two suits should be heard together in the ELC
Yes. The plaint in the trial court and the adverse possession suit cannot be severed as they concern the same parcel of land and parties; the ELC can handle both under one roof.
The court found that transferring the plaint-commenced suit to the ELC was the most reasonable and efficient way of resolving the dispute, avoiding conflicting decisions and the embarrassing scenario where the ELC would sit on appeal over the same property while simultaneously hearing a suit on it, and meeting the overriding objective.
Legal principles established
#- Magistrates' Courts lack jurisdiction to hear and determine claims for adverse possession under sections 37 and 38 of the Limitation of Actions Act; only the Environment and Land Court has such jurisdiction
- A suit filed in a court lacking jurisdiction cannot be transferred to a competent court so as to sanctify an incompetent suit
- A counterclaim is a suit on its own
Court orders
#- 1.An order withdrawing and transferring Ukwala SRM ELC No. 47 of 2019 (Amos Omondi Mbala v Wilmina Nekesa & William Onyango Muthach) to the Environment and Land Court at Siaya for hearing and determination
- 2.That upon transfer, Ukwala SRM ELC No. 47 of 2019 shall be given a new number in the ELC
- 3.That the transferred file and the file in the present suit be placed for mention before the court for further directions
- 4.Costs of the application awarded to the Respondents
- Jurisdiction invoked
- Section 18(1) of the Civil Procedure Act and Article 162(2)(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthach (Suing on His Behalf as Legal Representative of Alex Onyango) & another v Mbala & another (Enviromental and Land Originating Summons E039 of 2025) [2026] KEELC 2023 (KLR)", Case Analysis (2026). Not stated in judgment (Notice of Motion dated 29/10/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2023/eng@2026-04-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.