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ELCDismissedApplication dated 2/3/2026 (Kitale ELC)

Otieno v Kimani & another (Environment and Land Miscellaneous Case E008 of 2026) [2026] KEELC 2808 (KLR)

Environment and Land Court
13 May 2026
691 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kitale refused to transfer a land case to itself, confirming you cannot fix your own wrong forum choice by asking for a transfer.

What this practically means

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Executive summary

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The applicant, an advocate (Karani Grey), sought under an application dated 2/3/2026, supported by his affidavit, the transfer of Kitale Magistrates' Court Land Case No. 14 of 2022 to the Environment and Land Court. The ground was that a statement of defence and counterclaim filed in the lower court raised adverse possession, which - on the applicant's reading of the Court of Appeal decision in Sugawara v Kiruti [2024] KECA 1417 [KLR] - the lower court lacked jurisdiction to determine. The respondent, Morris Indakwa Buluma, opposed through the affidavit of Morris Indakwa Buluma, contending the application was defective and an abuse of process, that adverse possession claims require an originating summons under Order 37, and that the purported counterclaim was defective, leaving nothing to transfer save for striking out the defence and counterclaim. The court, C.K. Nzili J, began from the settled principle in Owners of Motor Vessel Lillian 'S' that jurisdiction is everything. Relying on Section 18 of the Civil Procedure Act, it held that a counterclaim is an independent suit, and that it was the applicant, not the respondent, who filed the counterclaim in a court without jurisdiction; the respondent's primary suit for recovery of land therefore remained competent, and only the applicant's counterclaim was incompetent. Citing Phoenix E.A. Assurance v Thiga and Ganjoni Properties, the court observed that a suit filed without jurisdiction is dead on arrival, the remedy being withdrawal and refiling. On the procedural question, the court held that adverse possession need not be brought by originating summons; a counterclaim in a recovery-of-land suit is permissible, Order 37 applying only to claims for a declaration of adverse possession. The application was dismissed with costs and the file closed.

Questions the Court framed

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

  1. 1.Whether the Kitale Magistrates' Court Land Case No. 14 of 2022 should be transferred to the Environment and Land Court on the ground that a counterclaim raising adverse possession exceeds the lower court's jurisdiction
  2. 2.Whether a claim for adverse possession must be brought by way of an Originating Summons under Order 37 of the Civil Procedure Rules

Key legal issues

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01

Whether the lower court lacked jurisdiction over the adverse possession counterclaim such that the whole case should be transferred to the ELC

Holding

The transfer application failed because the respondent's primary suit for recovery of land remains competent in the lower court; only the applicant's own counterclaim filed in a court without jurisdiction is incompetent, and the applicant, not the respondent, chose the wrong forum.

Reasoning

Relying on the Lillian 'S' principle that jurisdiction is everything, the court noted that Section 18 of the Civil Procedure Act permits transfer, but only the incompetent portion could be affected. Since a counterclaim is an independent suit, its nullity does not infect the primary suit. The applicant annexed no plaint and the defect lay in the applicant's own choice of forum.

p. 2
02

Whether adverse possession must be pleaded by originating summons under Order 37

Holding

No - adverse possession may be raised by counterclaim in a suit for recovery of land; the Order 37 originating summons procedure applies only where a standalone declaration of adverse possession is sought.

Reasoning

Following Court of Appeal authority including Martha Njeri Wanyoike and Wafula v Mulunda, which cited Gulam Miriam Noordin, Wabala v Okumu and Bayete Co. Ltd v Kosgey, the court held that a counterclaim for adverse possession in a recovery-of-land claim is procedurally permissible, and the originating summons route is confined to cases seeking a declaration of adverse possession.

p. 2

Legal principles established

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  • Jurisdiction is a creature of statute or the Constitution, and without it a court shuts its doors
  • A counterclaim is an independent suit that succeeds or fails independently of the primary suit
  • A suit filed in a court without jurisdiction is a nullity; the remedy is to withdraw and file afresh before a competent court
  • A claim of adverse possession need not be brought by originating summons; it may be introduced by way of counterclaim in a claim for recovery of land, and Order 37 procedure applies only where a declaration of adverse possession is sought

Court orders

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  1. 1.The application dated 2/3/2026 seeking transfer of Kitale Magistrates' Court Land Case No. 14 of 2022 to the ELC is dismissed with costs
  2. 2.File closed

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 (transfer of cases to the High Court/ELC)

Relief refused

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Transfer of Kitale Magistrates' Court Land Case No. 14 of 2022 to the ELC for hearing and disposal

The lower court's primary suit remains competent; only the applicant's own counterclaim, filed in a court without jurisdiction, is incompetent, and the remedy is withdrawal and refiling rather than transfer

p. 2

Costs

The application is dismissed with costs (costs to the respondent).

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.

Jurisdiction is everything. It is a creature of either a statute or a Constitution or both. Without jurisdiction, a court shuts its doors
p. 1Nature of jurisdiction
A counterclaim is an independent suit that succeeds or fails regardless of the outcome of the primary suit.
p. 2Independence of counterclaim
A suit filed in a court bereft of jurisdiction is dead on arrival.
p. 2Effect of want of jurisdiction
The upshot is that I find the application lacking merit. It is dismissed with costs.
p. 2Final orders/disposition

Issues in the judgment

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minor

The judgment recites the applicant's assertion that Sugawara v Kiruti stripped lower courts of adverse possession jurisdiction, but the court never expressly determines whether Sugawara applies, as the application fails on other grounds

minor

No case number for this application is stated in the ruling; the application is identified only by its date

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, "Otieno v Kimani & another (Environment and Land Miscellaneous Case E008 of 2026) [2026] KEELC 2808 (KLR)", Case Analysis (2026). Application dated 2/3/2026 (Kitale ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2808/eng@2026-05-13

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