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ELCDismissedNotice of Motion dated 14th March, 2025 in Tawa SPM ELC No. 7 of 2020· [2026] KEELC 2282 (KLR)

Muyanga v Kitaka & 2 others (Environment and Land Miscellaneous Application E008 of 2025) [2026] KEELC 2282 (KLR)

Environment and Land Court
23 April 2026
1,489 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a suit-transfer application because the applicants failed to attach their pleadings proving an adverse possession counterclaim.

What this practically means

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Executive summary

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The Defendants in Tawa SPM ELC No. 7 of 2020, led by Paul Mutuku Kitaka, moved the Environment and Land Court by Notice of Motion dated 14th March 2025 under Section 18(1)(b)(ii) of the Civil Procedure Act, seeking withdrawal of the suit from the Senior Principal Magistrates Court at Tawa and its transfer to the Environment and Land Court. Their stated reason was that they wished to raise a counterclaim for adverse possession of land parcel Mbooni/Itetani/141, a claim they contended only the Environment and Land Court can entertain under Section 38 of the Limitation of Actions Act. The Respondent, the plaintiff in the lower court, opposed the application as misleading, bad in law and an abuse of process, and noted that no pleadings evidencing the alleged counterclaim had been annexed. The court framed a single issue: whether the Applicants had demonstrated merit in the transfer application. Relying on Section 18(1) of the Civil Procedure Act and John Kirimana Ekabu v Stephen M' Ikiamba, the court affirmed that the burden lies on an applicant to make out a strong case for transfer. Applying Sections 108 and 109 of the Evidence Act and Kenneth Nyaga Mwige v Austin Kiguta on formal proof, the court found that the Applicants' failure to annex their statement of defence and counterclaim left their averments unfounded assumptions. The application was dismissed with costs.

Key legal issues

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Whether the Applicants justified withdrawal and transfer of the Tawa suit to the Environment and Land Court on the ground that they intend to counterclaim for adverse possession

Holding

The application was dismissed because the Applicants failed to annex their pleadings before the lower court, so the court could not verify that an adverse possession counterclaim was actually intended or pleaded

Reasoning

Section 18(1)(b) of the Civil Procedure Act permits the High Court to withdraw a suit pending in a subordinate court and try, transfer or retransfer it, but the burden lies on the applicant to make out a strong case for transfer. The Applicants asserted that they wished to raise a counterclaim for adverse possession, over which only the Environment and Land Court has jurisdiction under Section 38 of the Limitation of Actions Act. However, they did not annex their statement of defence or any pleading from the lower court. Applying Sections 108 and 109 of the Evidence Act, the court held that its averments were unfounded assumptions that could not sustain the transfer.

p. 4

Legal principles established

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  • The burden lies on the applicant to make out a strong case for the transfer of a suit under Section 18(1)(b) of the Civil Procedure Act
  • A party asserting a fact before the court bears the burden of proving it; averments unsupported by annexed documents cannot found a determination

Court orders

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  1. 1.The instant application is fatally defective and is hereby dismissed with costs
Jurisdiction invoked
Section 18(1)(b)(ii) 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, "Muyanga v Kitaka & 2 others (Environment and Land Miscellaneous Application E008 of 2025) [2026] KEELC 2282 (KLR)", Case Analysis (2026). Notice of Motion dated 14th March, 2025 in Tawa SPM ELC No. 7 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2282/eng@2026-04-23

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