Kibunja v Muraya (Environment and Land Miscellaneous Case E016 of 2025) [2025] KEELC 7784 (KLR)

iii. The Defendant has filed a defence in the said matter which includes a counterclaim for adverse possession which is outside the jurisdiction of the Magistrate’s Court as well as include more parties. iv. The claim for adverse possession directly afiects the Respondent’s claim in the lower Court matter. v. Unless the proceedings in the lower Court are stayed, the matter therein will proceed and render this application a nullity. vi. The counterclaim is crucial to bring all issues regarding the property including the occupation of the Applicant and his family. vii. No prejudice will be sufiered by the Respondent if this application is allowed. viii. It is in the interest of both parties that this matter be heard in this Court. 4. That the Respondent filed this matter against the Applicant in Thika MC ELC No. E125 of 2024 Joseph Mbaria Muraya vs James Kibunja seeking to enforce their disputed proprietary rights over land parcel number Gatuanyaga/Ngoliba Block 12/1332. When the matter came for pretrial directions on 19th January 2025 it was slated for hearing on 21st May 2025 but the Applicant filed a Statement of Defence plus a Counter-claim for adverse possession which the Applicant claims is outside the jurisdiction of the Magistrate’s Court as well as the fact that it includes more parties. 5. That in light of the proposed amendment of the Defendant, the Magistrate’s Court at Thika will therefore not have the jurisdiction to hear and determine this suit and that the orders sought would be within the jurisdiction of the Environment and Land Court. 6. That unless the proceedings in the lower Court are stayed, the matter therein will proceed and render this application a nullity. The Applicant has filed a Supporting Afidavit and reiterated all the issues herein averred in support of the application. 7. The application has been opposed vide the Replying Afidavit sworn on 7/03/2025 where it is stated that; the Respondent is the owner of the suit property Gatuanyaga/Ngoliba Block 12/1332 And The Applicant’s Claim To The Suit property is misplaced. 8. The Respondent avers that the Applicant has never adversely occupied the suit property since he has engaged with the Applicant on multiple occasions starting 2008, 2013, 2015 and 2019 in an efiort to formalize ownership of the suit property. 9. It is therefore the averment of the Respondent that the application is scandalous, frivolous and vexatious and he has prayed that the same be dismissed with costs to the Respondent since it lacks in merit and is an abuse of the Court process. Submissions 10. At the time of writing this Ruling which is after the time that was allotted to the parties to file written submissions none had done so. Analysis and Determination 11. This Court has carefully read and considered the Application, the rival Afidavits and the written submissions and the issues that arise for determination are:i. Whether the Magistrate’s Court had jurisdiction to entertain the suit when it was filed; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7784/eng@2025-11-12 2

page 2 of 8

ii. Whether this Court has the power to transfer the suit from the Subordinate Court to the Environment and Land Court; and iii. Who shall bear the costs of this suit? Whether the Magistrate’s Court had jurisdiction to entertain the suit when it was commenced. 12. The law relating to transfer of suits is very clear. An order for the transfer of a suit from one Court to another cannot be made unless the suit was in the first instance commenced in a Court which had no jurisdiction to try it. If that suit was commenced in a Court that had no jurisdiction to entertain the dispute, it would then mean that the said suit is a nullity in law and is incompetent. Consequently, the Court would not have jurisdiction to transfer the matter to any other Court. 13. It follows therefore, that the power to transfer a case from the Subordinate Courts to the High Court and Courts of equal status for hearing may only be exercised if the Court in which it was commenced is a Court vested with competent jurisdiction over the dispute. It is for this reason that there is need to explore whether the Thika MC ELC No. E125 of 2024 Josph Mbaria Muraya vs James Kibunja was filed in a Court seized with jurisdiction to entertain a claim on adverse possession. 14. The Supreme Court of Kenya in the case of Macharia & Another vs Kenya Commercial Bank Limited & 2 Others (2012) KESC 8 (KLR), the Court held that a Court’s jurisdiction fiows from either the Constitution or Legislation or both. Further, that a Court of Law can only exercise the jurisdiction conferred to it by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. 15. The Constitution under Article 169(2) directed Parliament to enact legislation conferring jurisdiction, functions and powers on Magistrate’s Courts. Consequently, the Magistrates’ Court Act was enacted to define the jurisdiction of the various Subordinate Courts. Under Section 7(3) of the Magistrate’s Court Act, the Civil jurisdiction of Magistrates Courts is set out as follows:“ (3) 16. A Magistrate's Court shall have jurisdiction in proceedings of a Civil nature concerning any of the following matters under African customary law— (a) land held under customary tenure; (b) marriage, divorce, maintenance or dowry; (c) seduction or pregnancy of an unmarried woman or girl; (d) enticement of, or adultery with a married person; (e) matters afiecting status, and in particular the status of widows and children including guardianship, custody, adoption and legitimacy; and (f) intestate succession and administration of intestate estates, so far as they are not governed by any written law.” Section 26(3) of the Environment and Land Court Act, with regards to land matters, the Chief Justice may, by notice in the Gazette, appoint certain Magistrates to preside over cases involving environment and land matters of any area of the Country. Exercising the authority granted by that provision, the Chief Justice has over time gazetted Magistrates to hear land matters. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7784/eng@2025-11-12 3

page 3 of 8

17. A close reading of Section 26(4) does present the fact that the subsection specifically restricts the extent of the jurisdiction that can be exercised by Magistrates’ Courts as far as environment and land matters are concerned and provides that:“ (4) 18. Subject to Article 169(2) of the Constitution, the Magistrate appointed under sub-section (3) shall have jurisdiction and power to handle:(a) disputes relating to ofiences defined in any Act of Parliament dealing with environment and land; and (b) matters of civil nature involving occupation, title to land, provided that the value of the subject matter does not exceed the pecuniary jurisdiction as set out in the Magistrates’ Courts Act.” The jurisdiction of Magistrates over land disputes is further defined at Section 9(a) of the Magistrates’ Court Act as follows:“ 9. Claims in employment, labour relations claims, land and environment cases. A magistrate’s Court shall:(a) 19. in the exercise of the jurisdiction conferred upon it by Section 26 of the Environment and Land Court Act (Cap. 8D) and subject to the pecuniary limits under section 7(1), hear and determine claims relating to— (i) environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (ii) compulsory acquisition of land; (iii) land administration and management; (iv) public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (v) environment and land generally.” From the above discourse it is evident that there is no express statutory provision vesting the Magistrates’ Courts with jurisdiction over claims on adverse possession. That jurisdiction is conferred on the High Court (read ELC) by virtue of Section 38(1) of the Limitation of Actions Act, which specifically provides that: “ 38. Registration of title to land or easement acquired under Act (1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7784/eng@2025-11-12 4

page 4 of 8

20. Section 13 of the ELC Act gives the ELC original and appellate jurisdiction to hear and determine environment and land disputes in accordance with Article 162(2)(b) of the Constitution. For this reason, although the Limitation of Actions Act refers to the High Court, the ELC being a Court of equal status to the High Court vested with jurisdiction of land disputes, that jurisdiction then automatically falls on the ELC. 21. The Court of Appeal in Sugawara vs Kiruti (Sued in her capacity as the administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 Others [2024] KECA 1417 (KLR), which decision is the subject of this application, held that:“ In other words, reference is to the “High Court” as the Court to which such cases are heard, and given the dictates of the Constitution set out above, this should be construed to mean the “Environment and Land Court”, as being the Court donated with jurisdiction to hear and determine matters pertaining to adverse possession of land. The efiect of this interpretation is that, it is only the Environment and Land Court established under Article 162(2)(b) that is mandated to hear these cases. So that, notwithstanding the expansion of the jurisdiction of environment and land usage to Magistrates Courts, it is distinctive that under section 9(a) of the Magistrates Courts Act, various matters are specified for determination, but claims for adverse possession are not included.” 22. This conclusion was reached by the Court of Appeal after analyzing previous decisions by various Courts on this matter. There can be no doubt therefore that the said Court was well aware of the prevailing jurisprudence at the time, and that there were matters pending before the Magistrates’ Courts touching on adverse possession. Nevertheless, it still went ahead to clarify its position as far as the jurisdiction of Magistrates’ Courts is concerned, through its said decision. 23. Clearly one can deduce that the Court of Appeal wanted to clarify the position on the jurisdiction of Magistrates’ Courts to avoid a situation where the said Courts undertook proceedings and rendered decisions in matters where they have no authority to act. It is well understood that such proceedings and any decision made therein would be invalid, and allowing any Court to proceed on a nullity knowing it has no jurisdiction is itself a waste of judicial resources. 24. Indeed, it goes without saying that the Limitation of Actions Act has always been clear with regards to the Court in which matters of adverse possession ought to be filed. There is no Statute conferring jurisdiction on the Magistrates gazetted by the Chief Justice to entertain adverse possession disputes. It is of no significance that Courts have fiouted the said provisions and allowed Subordinate Courts to determine matters of adverse possession contrary to the law. What is clear, is that the Court of Appeal in its decision set out to resolve this mischief by clarifying the law that was already in existence. 25. Evidently, therefore, the Court of Appeal did not divest the Magistrates’ Court of jurisdiction to handle adverse possession claims as alleged. What the Superior Court is saying is that the Magistrates’ Court never had such jurisdiction to begin with. 26. In the celebrated case of Owners of Motor vessel Lillian ‘S’ vs Caltex Kenya Limited (1989) KLR, Nyarangi J.A held that:“ Jurisdiction is everything. Without it a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction … Where a Court takes it https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7784/eng@2025-11-12 5

page 5 of 8

upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.” 27. In line with the above authority and pursuant to the decision of the Court of Appeal in Nairobi Civil Appeal E141 of 2022, any Magistrate’s Court handling an adverse possession claim ought to down its tools. There can be no retrospective application where matters of jurisdiction are concerned. To hold so would amount to allowing Magistrates’ Courts to proceed and hear matters which they had no jurisdiction to entertain, contrary to statute and the doctrine of stare decisis to which Kenyan Courts are bound. 28. The Applicant in the grounds of the application has argued that the Magistrates’ Court Act does not, expressly this Court needs to have the matter transferred because the Counter-claim filed by the Respondent includes a claim for adverse possession. That might be so. It has been held before that jurisdiction cannot be inferred, and neither can it be conferred to a Court through judicial craftsmanship nor based on sympathy. The bottom line is that the claim was filed in the wrong Court. 29. The Chief Magistrates’ Court at Thika where MC ELC No. E125 of 2024 was filed had no jurisdiction to entertain that suit at the time it was commenced. Whether this Court has the power to transfer the suit from the Subordinate Court to the ELC. 30. Having determined the issue of the jurisdiction of the Subordinate Court, I now turn to the question of whether this Court should allow the transfer of suit to the ELC for hearing and determination. On transfer of suits, Section 18(1) of the Civil Procedure Act provides that: “ 18. Power of High Court to withdraw and transfer case instituted in subordinate Court (1) 31. On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (b) withdraw any suit or other proceeding pending in any Court subordinate to it, and thereafter(i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.” Under Section 18(1) of the Civil Procedure Act, this Court may exercise its supervisory jurisdiction, to withdraw or transfer suits for trial and final disposal by itself or other Courts subordinate to it. This https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7784/eng@2025-11-12 6

page 6 of 8

law also gives the Court the general power to transfer suits, which power may be exercised at any stage of the proceedings. A Court may do so either on application by a party or suo moto. 32. Of worth noting is that it is a well-established principle of law that, when the transfer is however at the instance of a party then the burden lies on the Applicant to make out a strong case for the transfer. In Equity Bank Limited vs Bruce Mutie Mutuku t/a Diani Tour Travel (2016) eKLR, the Court of Appeal held as follows: “ In numerous decided cases, Courts, including this Court have held that it would be illegal for the High Court in exercise of its powers under Section 18 of the Civil Procedure Act to transfer a suit filed in a Court lacking jurisdiction to a Court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow a Court to transfer an incompetent suit for want of jurisdiction to a competent Court would be to muddle up the waters and allow confusion to reign. It is settled that parties cannot, even by their consent confer jurisdiction on a Court where no such jurisdiction exists. It is so fundamental that where the Court lacks jurisdiction parties cannot even seek refuge under the O2 principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the same …” 33. Some of the matters to be taken into consideration are the balance of convenience, questions of expense, interest of justice and possibilities of undue hardship, and if the Court is left in doubt as to whether under all the circumstances it is proper to order transfer, the application must be refused. 34. Additionally, the power under Section 18 of the Civil Procedure Act refers to competent suits filed in Courts seized with the requisite jurisdiction to entertain them. The general power of the Court to transfer suits under Section 18 of the Civil Procedure Act cannot therefore be exercised in a matter where the suit was filed in a Court without jurisdiction. 35. The Supreme Court case of Albert Chaurembo Mumba and 7 Others vs Maurice Munyao & 148 Others (2019) eKLR held that:“ However, as it was well elucidated in the case of Kagenyi vs Musiramo & Another (1968) EALR 43, an order for transfer of a suit from one Court to another cannot be made unless the suit has been brought, in the first instance, to a Court which has jurisdiction to try it. It’s therefore irrelevant as parties cannot consent to confer jurisdiction to a Court or tribunal where it is not provided by law.” 36. This Court has already determined that the Chief Magistrates’ Court had no jurisdiction to entertain the suit before it. That determination arises not from a newly enacted Statute, but from an interpretation of existing Statutes by a Superior Court. For this reason, the only logical conclusion to be made is that the instant application fails to meet the threshold for an order to have the Subordinate Court case transferred for hearing and determination before the ELC. 37. It was the Applicants’ contention that Courts did not dispute the Magistrate’s jurisdiction over claims of adverse possession prior to the Court of Appeal decision. This is however not true. The Court of Appeal in Nairobi Civil Appeal E141 of 2022 undertook a detailed analysis showing that there are several decisions in which Courts held that Subordinate Courts had no jurisdiction to entertain adverse possession matters. This Court is now duty bound to uphold the current prevailing law and its interpretation thereto by the Superior Court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7784/eng@2025-11-12 7

page 7 of 8

38. The Court’s duty does not extend to upholding an illegality by legitimizing an incompetent suit. Lord Denning in the case of Macfoy vs United Africa Co Ltd (1961)3 All ER, 1169 stated that:“ If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse …” 39. In any event, the matter has not been heard and determined, thus the only action the Magistrate’s Court can do is strike it out, leaving the Applicants with the option to file it afresh in the appropriate Court for hearing and determination without triggering the doctrine of res judicata. In the same breadth, the Applicants are also at liberty to withdraw the suit and file it afresh in this Court. 40. The Court of Appeal in the case of Phoenix of E.A. Assurance Company Limited vs S. M. Thiga t/a Newspaper Service [2019] eKLR stated that; “ We are not persuaded that that proposition by the Respondent is correct in law. Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a compliant one in the Court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer Jurisdiction to itself...it is clear from the foregoing that the claim by the Respondent was filed before a Court devoid of jurisdiction. The suit was nullity ab initio and was not transferable to another Court …” 41. For reason that the Applicant seeks to transfer the suit on the basis of lack of jurisdiction by the Subordinate Court, I hereby find that the Application is not merited. The suit before the Chief Magistrate’s Court is not only an incompetent suit, but also a nullity in law. As a result, there is nothing to transfer. The Applicants have not satisfied this Court that they are entitled to the orders sought. Orders: 42. Consequently, the Notice of Motion dated 18/02/2025 is devoid of merit and the same is dismissed with costs to the Respondent. 43. Orders accordingly. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 12TH DAY OF NOVEMBER, 2025. MOGENI J JUDGE In the presence of:Mr. Kuria for the Applicant Mr. Njuguna holding brief for Ms. Wangui for the Respondent Mr. Melita – Court Assistant MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7784/eng@2025-11-12 8

page 8 of 8