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ELCPartially AllowedMiscellaneous Application (Oyugis SPMC ELC Case No. 40 of 2022 - transfer application)· [2026] KEELC 3303 (KLR)

Olajo & another v Oyugi (Miscellaneous Application E002 of 2025) [2026] KEELC 3303 (KLR)

Environment and Land Court
30 April 2026
NYNYAGAKA
2,025 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed that only it, not magistrates' courts, can decide adverse possession land claims, so an Oyugis suit was transferred.

What this practically means

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Executive summary

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The applicant, a defendant in Oyugis SPMC ELC Case No. 40 of 2022, moved the Environment and Land Court at Homabay by notice of motion under Order 51 rule 1 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 18 of the Civil Procedure Act seeking transfer of that suit to the ELC and a declaration that the Magistrate's Court lacks jurisdiction over her counterclaim for adverse possession against the respondent, the registered proprietor of Kabondo/Kasewe/767. The respondent opposed, arguing the applicants could not transfer a suit they did not file and that the counterclaim was incompetent in the lower court. Parties filed no submissions; the court determined the application on the merits. Framing the issues as whether transfer was merited and costs, the court traced the historic division of authority among Kenyan courts on whether magistrates' courts could entertain adverse possession claims, and held that the Court of Appeal's decision in Sugawara v Kiruti (11 October 2024) settled the position: under Section 38 of the Limitation of Actions Act, only the ELC has original jurisdiction over adverse possession claims. Because the counterclaim was filed in 2022, before that decision, the applicant was excused for filing it in the lower court. Relying on the principle that a counterclaim is a cross-suit but does not yield a separate judgment, the court ordered the entire suit transferred to the ELC at Homabay, directed service of the order on the trial court within fourteen days, and made no order as to costs.

Key legal issues

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01

Jurisdiction of the Magistrate's Court over adverse possession claims

Holding

The Magistrate's Court lacks jurisdiction to determine the counterclaim for adverse possession; such claims fall within the exclusive original jurisdiction of the Environment and Land Court under Section 38 of the Limitation of Actions Act.

Reasoning

The court traced the historic split of authority among subordinate and superior courts on whether magistrates' courts could entertain adverse possession claims. Relying on the plain textual reading of Section 38 of the Limitation of Actions Act and the Court of Appeal decision in Sugawara v Kiruti delivered on 11 October 2024, the court held that the confusion is now settled: only the ELC has original jurisdiction over adverse possession claims.

p. 3
02

Whether a defendant may seek transfer of the whole suit on the strength of a counterclaim filed in a court lacking jurisdiction

Holding

Yes. The defendant can be excused for filing the counterclaim in the lower court because it was filed before the Sugawara decision clarified the jurisdictional position; the proper remedy is transfer of the suit to the ELC.

Reasoning

The court acknowledged that counterclaims are treated as separate suits but are intertwined with the plaintiff's claim. Since the counterclaim was filed in 2022, before the Court of Appeal's clarifying decision in Sugawara v Kiruti (11 October 2024), the applicant could not be faulted. Given that only one final judgment can be pronounced on the claim and counterclaim, the entire suit was transferred to the ELC.

p. 3

Legal principles established

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  • Pursuant to Section 38 of the Limitation of Actions Act, only the Environment and Land Court has original jurisdiction to hear and determine adverse possession claims.
  • A counterclaim, while amounting to a cross-suit, does not give rise to a separate stand-alone second judgment and cannot be a pleading independent of a defence.
  • A counterclaim may nevertheless proceed even where the plaintiff's suit is stayed, discontinued or dismissed, per Order 7 Rule 13 of the Civil Procedure Rules.

Court orders

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  1. 1.Oyugis Magistrate Court SPMC ELC Case No. 40 of 2022 be transferred to the Environment and Land Court at Homabay for hearing and determination
  2. 2.The order be served in the trial Court within fourteen days for purposes of transfer of that suit to this court
  3. 3.There shall be no order as to costs
Jurisdiction invoked
Order 51 rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 18 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, "Olajo & another v Oyugi (Miscellaneous Application E002 of 2025) [2026] KEELC 3303 (KLR)", Case Analysis (2026). Miscellaneous Application (Oyugis SPMC ELC Case No. 40 of 2022 - transfer application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3303/eng@2026-04-30

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