Ndeda (Legal Administrator of the Estate of Peter Ondu alias Peter Okore Ondu) v Aluga & another (Environment and Land Miscellaneous Case E041 of 2025) [2026] KEELC 954 (KLR)

3. That she filed her suit under the impression that the Magistrates court had jurisdiction to hear and determine the matter, but that in view of the determination by the Court of Appeal in Civil Appeal No. E141 of 2022, it is prudent that the matter in Butali ELC Case No. E010 of 2023 be transferred to this court for hearing and determination as the trial court lacks jurisdiction. 4. The application was opposed. The respondent filed grounds of opposition dated 23rd July 2025, where they stated that the application was incompetent, a non-starter and fatally defective. Further that this court has no jurisdiction to transfer a matter that is in a court that lacks jurisdiction. That Butali ELC Case No. E010 of 2023 is a nullity in law for having been filed in a court with no jurisdiction. That the said suit is incapable for being transferred and the only remedy available for the applicant is to withdraw the matter and file a suit in the court with jurisdiction. 5. The court directed parties to file written submissions in support of their respective positions. On record are submissions filed by the applicant dated 28th August 2025 and the respondent’s submissions dated 2nd December 2025, both of which the court has duly considered. Analysis and determination. 6. The court has carefully considered the application, the preliminary objection and submissions. The only issue that arise for determination is whether the applicant deserves the orders sought. 7. This court has the jurisdiction to transfer a suit from the Magistrates court to this court for hearing and determination, as provided for in section 18 (1) (b) ( i ) of the Civil Procedure Act. 8. Section 38 (1) of the Limitation of Actions Act grants the Environment and Land Court the jurisdiction to hear and determine claims of adverse possession. In the case of Patrick Ndegwa Munyua v Benjamin Kiiru & Another [2020] KEELC 3911 (KLR), the Environment and Land court held that Magistrates courts have jurisdiction to hear and determine claims of adverse possession. 9. This court takes cognizance of the fact that there are also other decisions of Environment and Land Court where it was held that Magistrates courts have no jurisdiction to hear and determine adverse possession claims, like the decision of L.N. Mbugua J. in Philip Kithaka v Mercy Karimi Nyaga [2021] e KLR. The decisions for and against the jurisdiction of Magistrates Court to hear and determine claims concerning adverse possession being decisions of the Environment and Land Court have been the law, until the Court of Appeal settled the law in that regard, in October 2024 in the case of Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiritu & 4 Others Civil Appeal No. E141 of 2022, where it held that Magistrates Courts have no jurisdiction to hear and determine adverse possession claims. 10. Therefore, when Butali ELC Case No. E010 of 2023 was filed, as per the decision in Patrick Ndegwa case, the Magistrates court had jurisdiction to determine that matter. On that basis, the respondent’s submission that Butali ELC Case No. E010 of 2023 was filed in a court without jurisdiction and should be withdrawn and not be transferred to this court, is unjustified because at the time of filing that suit, the Magistrates Court had jurisdiction to hear and determine the same. The Magistrates court’s jurisdiction having been taken away by the decision in the Sugawara case and in view of provisions of Section 1A of the Civil Procedure Act, in the circumstances of this case, I find that it is only just, fair, expeditious and afiordable to the parties that Butali ELC Case No. E010 of 2023 is transferred to this court for hearing and determination. 11. In the premises, I find and hold that the application dated 16th June 2025 is merited and the same is hereby allowed. Consequently, Butali MC ELC Case No. E 010 of 2023 2022 (OS) (Gladys Achieng Ndeda (Legal administrator of the estate of Peter Ondu alias Peter Okore Ondu – Versus- Rose Atieno https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/954/eng@2026-02-11 2

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Aluga And Another) is hereby transferred from Butali Principal Magistrates Court to this court for hearing and determination. I make no order as to costs. 12. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 11TH DAY OF FEBRUARY 2026 A. NYUKURI JUDGE In the presence of Ms Kiprop for the applicant Mr. Mukavale J for the respondents Court Assistant: Delphine https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/954/eng@2026-02-11 3

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