Maeri v Panyako & 3 others (Miscellaneous Civil Application E023 of 2025) [2026] KEELC 2788 (KLR)

on Parcel Suna East/Wasweta I/6939 vide a valuation report dated 27/6/2025, the property was valued at 45million far above 20 million. She annexed a copy of Valuation report marked as IAM-1. 3. She deponed that the Senior Principal Magistrate court may lack the jurisdiction to hear the matter, hence she invoked the provisions of the law seeking that the file be transferred for directions before ELC Judge whose jurisdiction falls pursuant to section 13(1), (2),(4) of Environment and Land Court Act cap 80 Laws of Kenya. She attached a copy of Amended plaint marked as IAM2 and stated that it would be fair and just that the Application be allowed. 4. The 3rd Respondent filed a replying afidavit dated 25th August 2025 where she deponed that the Amended plaint seeks to enforce a contract of sale of a portion of land parcel Suna East Wasweta I/6939 which was between the Applicants’’ deceased husband and the 1st Respondent in 1990. That there is no pleading that she was a party to the sale and further, that the suit parcel does not exist anymore having been sub divided into several parcels including 16086. She urged that the report and valuation dated 27th June 2025 was prepared on the instructions of Elijah Mikoba Maeri who she knows to have died on 26th November 2020 and therefore it should not be taken seriously. 5. The deponent averred that the suit is anchored on adverse possession and the subordinate court lacks the jurisdiction to determine the Applicants’ suit. She urged that the Applicant is forum shopping and prayed that the Application be dismissed with costs. 6. The 1st, 2nd and 4th Respondents filed a grounds of opposition dated 26th November 2025 where they opposed the Application on the following grounds: 7. 1. Migori ELCLC No. E049 of 2023 is anchored on the doctrine of adverse possession. 2. Migori ELCLC No. E049 of 2023 is an irredeemable nullity, in the eyes of the law, having been filed before a court without jurisdiction. It cannot be transferred to this court lawfully. 3. This court lacks jurisdiction to transfer Migori ELCLC No. E049 of 2023 to this court. 4. This application is anchored in a misleading, inauthentic and unlawful valuation report. 5. The Kshs. 45,000,000/-, which is purported to be the value of non existent land the subject of this suit before the subordinate court, has not been pleaded at the subordinate court. 6. The Applicants’ claim in Migori ELCLC No. E049 of 2023 is irredeemably statute barred. 7. This motion comprises and has been filed in furtherance of the Applicants’’ forum shopping. 8. It would be unjust, unlawful and disproportionate to grant the orders sought in this motion as the orders sought would not align with the overriding objective of the civil procedure act and the overriding objective of the Environment and Land Court act and all lawful interests. 9. The application is scandalous, vexatious and an abuse of the court process. The Applicant filed a supplementary afidavit dated 15th January 2026 where she reiterated the averments in the supporting afidavit and urged that the valuation report is the basis of the transfer despite the value of the land not being pleaded. Further, that the issues raised by the Respondents are to be determined during the hearing of the substantive suit and not at the stage of the application Applicants’ Submissions 8. Counsel for the Applicant submitted that the Applicant conducted a valuation of the land which revealed that it was valued at Kshs. 25,000,000/- which the Senior Principal Magistrate has no https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2788/eng@2026-04-30 2

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jurisdiction to entertain. That the matter falls under the jurisdiction of the ELC Court and therefore the Application should be allowed in the interest of justice. 1st, 2nd and 4th Respondents Submissions 9. Learned Counsel for the Respondents submitted that this Court lacks the Jurisdiction to order for Transfer of the relevant suit. He urged that the jurisdictional context of this cause is the power of this Court, under section 18 of the Civil Procedure Act, this Court being a superior court with the status of the High Court, as is contemplated by Article 162 (2) (b) of the Constitution of Kenya, 2010, and allied statutes. That there are parameters on which a suit can be transferred from one court to another. He cited Baru & another (Suing as the Personal Representatives of the Estate of George Muriithi Gitahi) vs Gitahi & 3 others [2025] KEELC 3405 (KLR). 10. Counsel submitted that the Applicant pleads that she filed her suit before a Court without pecuniary jurisdiction and the matter of lack jurisdiction on the part of the subordinate court cannot be wished away, when the Applicant herself admits to that legal fact. Counsel cited Joseph Muthee Kamau & another v David Mwangi Gichuru & Another [2013] KECA 284 (KLR) on jurisdiction. Counsel additionally cited Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions) v Munyao & 148 others (Suing on their own behalf and on behalf of the plaintifis and other members/ beneficiaries of the Kenya Ports Authority Pensions Scheme)) [2019] KESC 83 (KLR) where the Supreme Court afirmed the principle, that any order for the transfer of a suit from one court to another can only be made where that suit had, in the first place, been filed in a court with jurisdiction to hear and decide the suit, at its inception, before the transfer. 11. Counsel submitted that none of the Respondents has a counterclaim, as a pleading with a pecuniary value that exceeds the pecuniary jurisdiction of Migori Magistrate’s Court, which can enable this Court transfer the Applicant’s Migori MCELC No. E049 of 2023 to itself. 12. Counsel urged that assuming that the Applicant’s Report and Valuation dated 27th June 2025 is anything to go by, then that document is the foremost reason for dismissing this motion, for lack of pecuniary jurisdiction on the part of the subordinate court, even in the absence of a pleading of the pecuniary value of the suit land, before the subordinate court, being that the value of the suit land was not pleaded, or deposed to, there. 13. Counsel submitted that it is also critical that the Applicant did not plead that the value of the suit land rose to Kshs. 45,000,000/- after the Applicant filed Migori MCELC No. E049 of 2023 at the subordinate below. It is clear, going by the questionable Report and Valuation that the court lacked pecuniary jurisdiction to hear and decide that suit on its merits. Further, that the Applicants’ only lawful option is to withdraw the suit and file it before this Court. 14. Counsel submitted that this application is itself a non-starter, because Migori lower court lacks the jurisdiction to hear and decide, or grant reliefs on the basis of, the Applicant’s suit before that Court, It is irredeemably incompetent. Counsel further submitted that the suit is anchored in Adverse Possession as is expressly pleaded and therefore the trial court lacks jurisdiction, a matter which the Court of Appeal has settled in Sugawara v 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). 15. Counsel urged that the Report and Valuation dated 27 June 2025 was prepared on the instructions of Elijah Mikoba Maori, and according to the Applicant’s processes before the court below, and before this Court, Elijah Mikoba Maeri died on 26 November 2020, some 5 long years before the valuation https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2788/eng@2026-04-30 3

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report was prepared. The report cannot therefore be genuine. Further, that the Report and Valuation is in respect of land parcel No. Suna East/Wasweta 1/6939, whose title was closed on subdivision, some 14years ago. That the 4th Respondents’ land was created out of a sub-division of land parcel No, Suna East/Wasweta 1/16085, which had resulted from sub-division of land parcel No. Suna East/Wasweta 1/6636, years before that. 16. Counsel urged that the Report and Valuation does not say whether the houses it speaks to are on land parcel No, Suna East/Wasweta 1/16085 or 20192, it says that they are standing on land parcel No. 1/6936, which does not exist. He urged the court to disregard the Report and Valuation, for being deficient in integrity. It cannot be a lawful basis for a judicial decision. 17. Counsel reiterated that the Applicant’s suit seeks to enforce a contract for sale of land made in 1990. That the suit was filed in 2023, 33 long years after the contract was made and therefore the suit is unmistakably statute-barred as per section 4 (I) (a) of the Limitation of Actions. He maintained that the subordinate court lacks jurisdiction to grant reliefs based on such a statute-barred suit. 18. Counsel urged that the Application is an abuse of the court process and should be dismissed with costs. Analysis and Determination 19. The germane issue for determination is; Whether the court should transfer the file in CMCELC 049 of 2023 to be heard before the Honourable ELC Judge. 20. Firstly, I must mention that the Respondent contended that the suit could not be transferred as the trial court lacks the jurisdiction to hear it due to the fact that it is based on adverse possession. Therefore, the court could not transfer a suit that is incompetent ab initio. The basis of their allegation is that the Applicant pleaded that the suit is premised on adverse possession. However, a reading of the pleadings reveals that the prayers sought have no relation to adverse possession. The issue of occupation of the land was mentioned by the Applicant but is not the basis of the suit. Therefore, on this limb, the Respondents appear to have misunderstood the tenor of the Applicants’ pleadings. 21. That notwithstanding, the Applicant contends that the subject matter of the suit in CMCELC 049 f 2023 – Iscah Adhiambo vs Ishmael Panyako & 3 Others, being the parcel of land known as LR No.Suna East/Wasweta 1/6936 is valued at Kshs. 45, 000, 000/- and therefore exceeds the pecuniary jurisdiction of the Chief magistrates’ Court and there should be transferred to the Environment and Land Court. 22. It is trite law that he who alleges must prove and in this regard, the burden of proof falls on the Applicant, to prove that the land value is Kshs. 45,000,000/-. The Applicant, in accordance with this principle, relies on the valuation report annexed to the Application as IAM-1. 23. I have perused the said valuation and I note that the same is said to have been conducted by Jomoraja E.A & G Contractors Ltd, with the inspection having been conducted on 27th June 2025. Of particular interest to the court is the terms of reference where the valuers stated that they conducted the valuation upon receiving instructions from Elijah Mikobia Maeri. Additionally, the Applicants were prudent enough to annex the pleadings in the trial court, including a grant of letters of administration ad litem dated 21st June 2023, where Iscah Adhiambo Maeri was appointed a personal representative of the estate of the late Elijah Mikobia Maeri. The grant indicates that he died on 26th November 2020 and therefore, he evidently could not have been in the position to give instructions to the valuer. 24. It follows that as the basis of the application for transfer is the valuation report, which has been adjudged by this court as lack in credibility, the court cannot grant the application. As the court is not convinced that there exists a proper valuation report on record, the court has no basis for finding that https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2788/eng@2026-04-30 4

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the value of the property exceeds the jurisdiction of the court wherein it the suit sought to be transferred was filed. Therefore, the Application is dismissed in its entirety. Each party shall bear its own costs. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 30TH DAY OF APRIL 2026. HON. DR. IUR NYAGAKA JUDGE From 12:56 PM in the presence of, Mr. Agure Advocate for the Applicant Mr. M. Odero Advocate for the Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2788/eng@2026-04-30 5

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