REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KITALE ELC MISC. NO. E009 OF 2025 RIONGON LOT0LEI------------------------------------------------APPLICANT VERSUS CHEPOSETEM WAWA STEPHEN WAWA KITOK PHILIP ROTICH WAWA (All sued as Legal Representatives of the Estate of KITOK ALIAS WAWA KITOK)-----------------------------RESPONDENTS RULING 1. The power to transfer suits by the High Court is governed by Section 18 of the Civil Procedure Act. It may be exercised at any stage of the proceedings with or without the application of the parties. The burden lies with the applicant to make a strong case for the transfer. Ordinarily, a suit under Section 15 of the Civil Procedure Act ought to be filed within the local limits of a court whose jurisdiction the respondent or each of the defendants/respondents works, or carries on business, or where the cause of action arose. RULING: KITALE ELC MISC. NO. E009 OF 2025 – D.O.D. – 30/07/2004 1
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2. The factors to consider in an application to transfer include: i. ii. iii. iv. v. vi. vii. The balance of convenience. Questions of expense. Interest of justice. Possibilities of undue hardship. Motive and character of the proceedings. Nature of the relief or remedy sought. Show convenient administrative justice. 3. In John Mwangi Karanja -vs- Alfred Ndiangui [2011] eKLR, the court held that the overriding objective of the Civil Procedure Act is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. In Albert Chaurembo Mumba & 7 others -vs- Maurice Munyao & 148 others, SC petition No 3 of 2016; [2019] eKLR, the court cited with approval Kagenyi – Vs – Musiramo & Another (1968) EA 43, that for the transfer of a suit from one court to another, the order cannot be made unless the suit has been brought in the first instance, to a court with jurisdiction to try it. 4. Further, in Equity Bank Ltd -vs- Bruce Mutie Muthoka T/A Diani Tour Travel [2016] eKLR, the court held that it would be illegal under Section 18 of the Civil Procedure Act, to transfer a suit from a court RULING: KITALE ELC MISC. NO. E009 OF 2025 – D.O.D. – 30/07/2004 2
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lacking jurisdiction; parties cannot even seek refuge unless Article 159 of the Constitution. 5. Applying the foregoing case law to the instant suit, what is before the court is an application dated 8/5/2025. The reasons advanced for transfer are contained on the face of the application and in a supporting affidavit sworn by Riongon Lotolei on 8/5/2025. It is deposed that the suit based on adverse possession was filed at the Kapenguria Law Courts on legal advice from his lawyer. It averred that the lower court no longer possesses jurisdiction due to the emerging legal jurisprudence. 6. The legal framework governing adverse possession is Order 37 of the Civil Procedure Rules, Sections 7, 9, 10, 11, 12, 13 and 38 of the Limitation of Actions Act and Section 28h of the Land Registration Act. Sections 37 and 38 of the Limitation of Actions Act of are specific that the court with jurisdiction to admit, hear, and determine causes of action based on adverse possession is the Environment and Land Court. 7. Whereas Section 26(3) and (4) of the Environment and Land Court Act provide that gazetted magistrates possess jurisdiction over land environment disputes, RULING: KITALE ELC MISC. NO. E009 OF 2025 – D.O.D. – 30/07/2004 3
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under the Magistrates Act 2016. Under Section 26, the jurisdiction spelt out therein is general to determine cases relating to environmental planning, protection, climate issues, land use planning, title tenure, boundaries, rates, rent, valuation, minerals and other natural resources. 8. Jurisdiction is everything and without it a court has to down its tools as held in Motor Vessel Lillian “S” vs Caltex Oil (K) Ltd [19890 eKLR. Jurisdiction may not be created by judicial craftsmanship or by consent of the parties. The wording in Sections 37 and 38(1) of the Limitation of Actions Act is clear. It does not mention any other court. Had the legislature intended to refer to any other court, it would have expressly said so. Similarly, had the Hon. Chief Justice intended to gazette magistrates to handle adverse possession claims, nothing would have been easier than for the legislature to expressly state so and for the gazettement to include such causes of action in clear terms. 9. In my view, the law as it has been has not changed after the dictum in Sugawara -vs- Kiruti (Sued in her capacity as the administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa RULING: KITALE ELC MISC. NO. E009 OF 2025 – D.O.D. – 30/07/2004 4
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Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others [2024] KECA 1417 (KLR. The court simply restated the law as it is. 10. The upshot is that I find that there is no competent suit to transfer. The application is dismissed with no orders as to costs. 11. Orders accordingly. Ruling dated, signed, and delivered via Microsoft Teams/Open Court at Kitale on this 30th day of July 2025. In the presence of: Court Assistant - Dennis Lowasikou for applicant absent HON. C.K. NZILI JUDGE, ELC KITALE. RULING: KITALE ELC MISC. NO. E009 OF 2025 – D.O.D. – 30/07/2004 5
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