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ELCAllowedELC Case No. E036 of 2024 (Transfer Application dated 3/11/2025)

Oyuko & 2 others v Onyando (Environment and Land Miscellaneous Application E032 of 2025) [2026] KEELC 2782 (KLR)

Environment and Land Court of Kenya
12 May 2026
2,977 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court moved a Bondo land case to Siaya because the magistrate would have to review a colleague's earlier judgment on the same land.

What this practically means

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Executive summary

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The applicants moved the Environment and Land Court at Siaya by Notice of Motion dated 3/11/2025 seeking transfer of Bondo MCELC Case No. E036 of 2024 (Simelia Anyango Onyando v Zakayo Ayuko & Moses Ochieng Auma) from Bondo Law Courts to the ELC, Siaya. They premised the application on Section 18 of the Civil Procedure Act, arguing that the same court had previously, and allegedly secretly, determined Bondo MCELC E032 of 2023 in the plaintiff's favour ex parte on the same parcels (South Sakwa/Barkowino/9706 & 9707), creating apprehension of bias and a prospect of the magistrate sitting in appeal over a brother magistrate's decision. The respondent, the plaintiff in E036 of 2024, did not oppose transfer to a competent court but contended that Bondo magistrates were not shown to be incapable of objective hearing, and that transfer was an attempt to have the court sit on appeal against the E032 judgment. She further noted the E032 proceedings only concerned a threat to cancel her title, and that the applicants were not parties thereto. The Interested Party (the Land Registrar) argued the reallocation was an internal case-management measure under Article 159(2). Dena J held the suit was competent before the CM Court, and that a prior judgment on the same land did not oust jurisdiction, the dispute remaining subject to res judicata. However, because the plaintiff intended to rely on the earlier judgment as evidence, the court found justification for transfer and allowed the application, with costs to abide the main hearing, expressly preserving any res judicata plea.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application dated 3/11/2025 seeking transfer of Bondo MCELC E036 of 2024 from Bondo Law Courts to the Environment and Land Court, Siaya has merit
  2. 2.Whether there is any justification to transfer the matter from Bondo Law Courts for hearing and determination by the ELC

Key legal issues

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01

Whether the transfer application was justified despite the trial court's apparent jurisdiction over the dispute

Holding

The application was allowed because part of the plaintiff's intended evidence was the prior judgment in MCELC E032 of 2023, creating discomfort for the CM court in reviewing that piece of evidence.

Reasoning

The court found the suit competent before the CM Court at Bondo and rejected the contention that the prior ex parte judgment on the same land barred the magistrate from entertaining the ownership dispute, which remained subject to res judicata. However, the plaintiff intended to rely on the earlier judgment as evidence, and the reply to the defence to the counter-claim alluded to its finality. This created discomfort for the CM court in reviewing that specific piece of evidence, justifying transfer to the ELC, Siaya.

p. 6
02

Whether allegations that the earlier suit was secretly prosecuted ex parte warranted transfer

Holding

Such allegations were not a proper basis for the transfer application and had to be pursued in the underlying proceedings or on appeal.

Reasoning

The court observed that while the applicants alleged the judgment in E032 of 2023 was secretly obtained, that complaint was outside the scope of a transfer application. Proper remedies lay in an application within those proceedings or an appeal to the High Court. The transfer was therefore granted on the evidence-comfort ground, not on the bias or secrecy allegations.

p. 5

Legal principles established

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  • The High Court (and a court of equal status such as the ELC) may transfer a suit pending in a subordinate court directly to another competent subordinate court without first withdrawing it to itself.
  • The fact that a court previously delivered a judgment concerning the same land does not deprive that court of jurisdiction over a different dispute on the same property; such dispute remains subject to res judicata.

Court orders

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  1. 1.The application dated 3/11/2025 is allowed
  2. 2.ELC CASE NO E036 OF 2024 Simela Anyango Onyango v Zakayo Ayuko & Moses Ochieng Auma is transferred from Bondo Law Courts to the Environment and Land Court, Siaya for hearing and determination
  3. 3.Costs shall abide the outcome of the main hearing
  4. 4.The decision to transfer the matter shall not serve as a bar for any party to apply on the plea of res judicata

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 18 of the Civil Procedure Act

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

From the above the court need not withdraw a suit filed in the subordinate court to itself. The High Court can still transfer it to another subordinate court competent to hear it.
p. 5Scope of transfer power under Section 18 Civil Procedure Act
the fact that a judgement was delivered by a court in Bondo with regard to the same suit property does not mean that the trial court at Bondo cannot entertain a dispute on the same property but which will be subject to the doctrine of res judicata
p. 5Jurisdiction over subsequent disputes on same property
The upshot of the foregoing is that the application dated is 3/11/2025 allowed and costs shall abide the outcome of the main hearing.
p. 6Final orders - application allowed and costs
The decision to transfer the matter shall not serve as bar for any party to apply on the plea of res judicata.
p. 6Final orders - reservation on res judicata

Issues in the judgment

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minor

The suit number is inconsistently rendered as both E036 of 2024 and E036 of 2025 in the supporting affidavit narration.

minor

The court refers to the earlier judgment as Bondo MC ELC Case No. E032 of 2024 in one passage, whereas it is elsewhere cited as E032 of 2023.

minor

The judgment cites the subject parcels inconsistently, referring in one place to South Sakwa/Barkowino/1408 alongside South Sakwa/Barkowino/9706 & 9707.

minor

The respondent's rank for Hon. J.P. Nandi is inconsistently given as SPM in the application and SRM in the replying affidavit.

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, "Oyuko & 2 others v Onyando (Environment and Land Miscellaneous Application E032 of 2025) [2026] KEELC 2782 (KLR)", Case Analysis (2026). ELC Case No. E036 of 2024 (Transfer Application dated 3/11/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2782/eng@2026-05-12

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