Muyanga v Kitaka & 2 others (Environment and Land Miscellaneous Application E008 of 2025) [2026] KEELC 2282 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.