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ELCPartially AllowedE&L Case (application dated 16th August 2026) arising from Kapsabet Principal Magistrate's Court E & L Suit No. 14 of 2020· [2026] KEELC 5356 (KLR)

Korir & another v Sang (Environment and Land Miscellaneous Case E017 of 2026) [2026] KEELC 5356 (KLR)

Environment and Land Court of Kenya
26 August 2026
613 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed magistrates cannot decide adverse possession land claims, transferring a Kapsabet land dispute there for proper determination.

What this practically means

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Executive summary

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The applicants, Kiprop Korir and Charles Kimeli Rop, moved the Environment and Land Court at Kapsabet by a Notice of Motion dated 16th August 2026 seeking transfer of Kapsabet Principal Magistrate's Court E & L Suit No. 14 of 2020 (Alice Chesige Sang vs Kiprop Korir & Charles Kimeli Rop) to the Kapsabet Environment and Land Court, together with leave to restate the suit upon transfer and costs. The applicants asserted that the respondent had filed the suit in the magistrate's court, to which they filed a defence and counterclaim dated 4th May 2021 raising, among other things, adverse possession, a claim over which the magistrate's court lacks jurisdiction. The respondent was duly served but did not respond to the application. The court framed the sole issue as whether the magistrate's court lacks jurisdiction over the counterclaim. Relying on Sugawara vs Kiruti (2024) KECA 1417 (KLR), the court noted that magistrates' courts have no jurisdiction to determine claims of adverse possession. It applied the Supreme Court's holdings in Samuel Kamau Macharia (jurisdiction flows from the Constitution or legislation) and Republic v Karisa Chengo (a decision without jurisdiction is void ab initio). Grounding its jurisdiction on Article 162(2)(b) of the Constitution read with section 13 of the Environment and Land Court Act, the court held the counterclaim for ownership of land by adverse possession falls within the exclusive jurisdiction of the Environment and Land Court. The application was allowed in terms of the transfer and leave-to-restate prayers, with no orders as to costs.

Key legal issues

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01

Jurisdiction of the magistrate's court over a counterclaim for adverse possession

Holding

The magistrate's court lacks jurisdiction to determine a counterclaim for adverse possession; such claims fall within the exclusive jurisdiction of the Environment and Land Court.

Reasoning

The court relied on the Court of Appeal decision in Sugawara vs Kiruti (2024) that magistrates' courts lack jurisdiction over adverse possession claims, and on the Supreme Court's holdings in Samuel Kamau Macharia and Republic v Karisa Chengo that jurisdiction is conferred only by the Constitution or statute and that decisions made without jurisdiction are void ab initio. The source of the ELC's jurisdiction is Article 162(2)(b) of the Constitution read with section 13 of the Environment and Land Court Act, 2015, which covers ownership of land by adverse possession.

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02

Whether the transfer application should be allowed

Holding

The unchallenged application was allowed, with the suit transferred to the Kapsabet Environment and Land Court and leave granted to restate the suit.

Reasoning

The respondent was duly served with the application as evidenced by the affidavit of service of Naumi Chebichi sworn on 21st August 2026 but failed to respond. The court found the application unchallenged, cogent and meritorious, and allowed it in terms of the transfer and leave-to-restate prayers, with no orders as to costs.

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Legal principles established

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  • Magistrates' courts do not have jurisdiction to determine claims of adverse possession
  • A court's jurisdiction flows from the Constitution or legislation or both, and a court can only exercise jurisdiction as conferred
  • Lack of jurisdiction renders a court's decision void ab initio, not merely voidable

Court orders

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  1. 1.Kapsabet Principal Magistrate's Court E & L Suit No.14 of 2020 (Alice Chesige Sang vs Kiprop Korir & Charles Kimeli Rop) is transferred from the Magistrate's Court at Kapsabet to the Kapsabet Environment and Land Court
  2. 2.The Applicants and Respondent are granted leave to restate the suit upon transfer before the Kapsabet Environment and Land Court
  3. 3.No orders as to costs
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya 2010 as read with section 13 of the Environment and Land Court Act, 2015

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, "Korir & another v Sang (Environment and Land Miscellaneous Case E017 of 2026) [2026] KEELC 5356 (KLR)", Case Analysis (2026). E&L Case (application dated 16th August 2026) arising from Kapsabet Principal Magistrate's Court E & L Suit No. 14 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5356/eng@2026-08-26

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