Kavita v Kiilu (As administrator and legal representative of the Estate of Charles Kiilu Katuta) (Environment and Land Miscellaneous Case E062 of 2025) [2026] KEELC 5002 (KLR)

The court relied on the binding Court of Appeal decision in Sugawara v Kiruti, which held that a strict interpretation of section 38 of the Limitation of Actions Act confines hearing and determination of adverse possession claims to the Environment and Land Court to the exclusion of Magistrates' Courts. This was reinforced by the earlier ELC decision in Njoki Wainaina citing Sections 37 and 38 of the Limitation of Actions Act. The court therefore concluded there was no gainsaying that the Chief Magistrate's court is not vested with such jurisdiction.

The court acknowledged the respondent's reliance on Equity Bank v Mutie, that an incompetent suit filed without jurisdiction is dead on arrival and cannot be transferred. However, it preferred the line of authority in John Mwangi Karanja and Daniel N. Mugendi, holding that transfer between courts of concurrent or appropriate status serves the overriding objective and avoids prejudice, especially as the suit was filed before the law on magistrates' jurisdiction over adverse possession was settled by Sugawara in October 2024.

Drawing on Hangzhou Agrochemicals Industries Ltd v Panda Flowers Ltd, the court set out the considerations for ordering transfer: motive and character of proceedings, nature of relief or remedy sought, interests of litigants, convenient administration of justice, expense of transporting and maintaining witnesses, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship. The decision is discretionary and fact-specific, and where the court is in doubt the application must be refused.