Olajo & another v Oyugi (Miscellaneous Application E002 of 2025) [2026] KEELC 3303 (KLR)

3. That the costs of this application be in the cause. 2. The Application was based on the grounds on the face of it. They were that the Respondent filed ELC NO 40 OF 2022 before the Magistrate's Court at Oyugis seeking a permanent injunction against the applicants from accessing Kabondo/Kasewe/767 citing that he is the registered proprietor of the parcel. The Applicant filed a defence and counterclaim in which she claimed adverse possession. The jurisdiction to hear and determine matters in regards to adverse possession claims lies with the Environment and Land Court. The Magistrate's Court therefore lacked jurisdiction to hear and determine the suit. It was in the interest of justice and for the proper determination of the dispute that the matter be transferred to this Court. No prejudice would be sufiered by the Respondent if the orders sought are granted. 3. It was supported by the afidavit sworn by Pascal Olajo on 19th November 2025. It largely repeated the contents of the grounds but in deposition form. 4. The application was opposed through the Replying Afidavit sworn by Joseph Oganda Oyugi on 3rd March 2026. He deposed that he filed the instant suit and the Amended Plaint dated 3rd day of August 2022 on 4th day of August 2022 against the applicants. He sought in it the relief of an order that the applicants trespassed onto parcel No. Kabondo/Kasewe/767. He annexed and marked a copy thereof as JO-'I'. The applicants filed a joint statement of defence and counter claim dated 14th July 2022. He annexed and marked as JO-'2' a copy of the said joint statement of defence and counter claim. He added that he was the registered owner of the said suit property. He annexed and marked JO-'3' a copy of the title deed thereof. It was issued on 7th December 1998. 5. He deposed that the applicants had on many occasions applied for adjournment in the trial court because they did not have a firm defence. Further, they now filed the instant notice of motion with the intention of continuing to keep him in the court and frustrate his efiorts to have the suit heard and determined on merit. They had no capacity whatsoever to request the transfer of a case they did not file at the trial court yet they were defendants in it. That it was a fact they filed a counter claim in the suit. The magistrate’s Court did not have legal capacity to entertain and/or determine the counter claim. Therefore, this court had no legal capacity to grant the orders sought therein. The counter claim was filed in a court which did not have jurisdiction whatsoever. This court could not transfer the applicants' counterclaim filed in a court without jurisdiction. The applicants could not ask for transfer of a suit which they did not file, merely because they filed a counter claim in it. The instant notice of motion was fictitious, incompetent and illegal. It amounted to an abuse of the due process of the court. 6. Parties did not submit on the application. Nevertheless, this Court shall determine the application on merits since submissions constitute only arguments which are a mere marketing language of parties. 7. The Court has considered the application on its merits irrespective of failure to submit on it, the facts and the law. I am of the humble view that the issues are whether the prayer for transfer is merited and who to bear the costs of the same. 8. The suit sought to be transferred was filed in in the year 2022. It was Oyugis Magistrate Court SPMC ELC Case No. 40 of 2022 which is pending before that court. The applicant has and next to the application evidence To the efiect that in the side suit she filed a Defence and accompanying it was a Counterclaim in which she sought the relief of adverse possession because to her she had been occupation of the seats would land for a period that would entitle her to claim the land by a way of that relief. The suit was for the relief of a finding that the Defendant had trespassed onto the suit land. It also sought for an injunction against the Defendant over the allegation of such trespass. Put in another way, the Defendant pleaded in the Counterclaim, saying (loosely put), “No, I cannot be evicted for https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3303/eng@2026-04-30 2

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reason that I have been on the land for this long period: adverse possession.” The Defendant then says, “In this answer I have given, the court does not have jurisdiction to hear and determine it.” 9. The question this court has then to determine is whether the Court has jurisdiction. This was prayer two of the application herein. My finding on the issue is that pursuant to Section 38 of the Limitation of Actions Act, the court does not have jurisdiction. 10. The next issue is why then the Applicant file the Counterclaim in that court? I am alive to the legal principle that counterclaims are treated as separate suits. But they are closely intertwined with the Plaintifi’s Claim that often they are filed together. Thus, in the dispensation before the Court of Appeal decision 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 (Civil Appeal E141 of 2022) [2024] KECA 1417 (KLR) (11 October 2024) (Judgment), a party who was sued in the subordinate court over such allegations as trespass could opt to file the Defence only in that court and a separate claim for adverse possession in the Environment and Land Court or file both the Defence and Counterclaim in the same Court. As noted above, this suit was filed in the year 2022, and the counterclaim was filed way before the Sugawara decision. Thus, in my humble view this applicant can be excused for having filed the Counterclaim in that lower court. 11. The issue of jurisdiction of courts in determining matters of adverse possession in this country has a past history in this country. Despite there boing clear provisions of Sections 37 and 38 of the Limitation of Actions Act, until the 11th October 2024 confusion reigned in the subordinate and superior courts in Kenya regarding whether or not the Magistrates Courts had jurisdiction to hear and determine claims of adverse possession. The superior courts had one school of thought that magistrates had jurisdiction. Another school held otherwise. 12. In the school that held the view that (gazette) Magistrate courts had jurisdiction were decisions such as Christopher Kangogo Cheboiboch v Susan Chepichi Chepkiyeng [2021] eKLR; Philip Kithaka v Mercy Karimi Nyaga [2021] eKLR; and Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & another [2020] eKLR. In the other school of thought would be found decisions such as Njoki Wainaina v Josephat Thuo Githachuri & 3 others; National Land Commission & another (Interested Parties) [2021] eKLR; Michael Chebii Toroitich v Peter Mogin Yatich Chebii [2013] eKLR; and Jesee Njoroge Gitau v Kibuthu Macharia & another [2019] eKLR; and Reuben v Mwangangi & 7 others (Environment & Land Case E011 of 2023) [2023] KEELC 21899 (KLR), among others. 13. Contrary to the above view, the other school firmly held that only the High Court prior to the establishment of the Environment and Land Court post the 2010 Constitution. This Court held the view as that of the latter. It drew it from a plain textual reading of Section 38 of the Act on the issue. The interpretation rendered the meaning that only the superior court has the requisite jurisdiction. Of course, before the Sugawara Court of Appeal decision my view would only have been persuasive to that of my brother and sister colleague judges. I would have still created another of the many voices wallowing in miasma of the confusion prevailing at the time. 14. The holding of Court of Appeal 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 (Civil Appeal E141 of 2022) [2024] KECA 1417 (KLR) (11 October 2024) (Judgment) now clarifies the position. Thus, from the 11th October 2024 the position is now clear, that Section 38 of the Limitation of Actions Act provides that only the ELC has the original jurisdiction to hear and determine adverse possession claims. 15. The above history then brings into focus the facts of the instant application, which I need not rehash. Sufice it to say that, of the nature of a Counterclaim, Sir Dinshah Fardunji Mulla, in “The Code of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3303/eng@2026-04-30 3

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Civil Procedure, 18th Edition, 2011” at page 1928 writes that “A Counterclaim has the efiect of crosssuit but only one final judgment is to be pronounced in the suit on the original claim of the Plaintifi and the Counterclaim of the Defendant.” 16. In the Court of Appeal case of Willam Koross v Hezekiah Kiptoo & 4 others, C.A. No. 223 of 2013 which stated that “…Before delving into res judicata proper, we need to state that there cannot properly be two judgments, and contradictory ones at that, in the same suit. The presence of a counterclaim in a suit, while essentially amounting to a cross-suit, does not give rise to a separate, stand-alone second judgment. A counterclaim never stands on its own and cannot be a pleading independent of a defence.” 17. Order 7 Rule 13 of the Civil Procedure Rules provides as follows: “ Discontinuance, stay or dismissal of suit. 13. If, in any case in which the defendant sets up a counterclaim the suit of the plaintifi is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.” 18. When the provision reproduced above is looked at from the prism of the Limitation of Actions Act, it renders the finding that a Counter-claim is separate or independent of the suit. However, once tried together, it gives rise to one judgment. This is because the law acts in synchrony. In a functioning legal system which esteems the rule of law, laws ought to be unitary in terms of purpose for the wellfunctioning of society. The law cannot and should never provide for one issue in two difierent ways. That would be a recipe for chaos: it would be a precursor for disobedience of the law. But it is correct to argue that a counterclaim can be treated as a cross suit, as was held by the Supreme Court of India in Sh. Jag Mohan Chawla & another v Dera Radha Swami Satsang & Ors. 19. The applicant can be excused for having filed that claim in the lower court. It therefore orders that Oyugis Magistrate Court SPMC ELC Case No. 40 of 2022 be transferred to this Court for hearing and determination. This order be served in the trial Court in fourteen days for purposes of transfer of that suit to this court. 20. There shall be no order as to costs. This file is closed. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 30TH DAY OF APRIL 2026. HON. DR. IUR NYAGAKA JUDGE Ruling delivered on 30th April 2026 From 1:20 PM in the presence of, Mr. Bunde for the Applicant Mr. Ochwangi for the Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3303/eng@2026-04-30 4

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