Korir & another v Sang (Environment and Land Miscellaneous Case E017 of 2026) [2026] KEELC 5356 (KLR) (26 August 2026) (Ruling) Neutral citation: [2026] KEELC 5356 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KAPSABET ENVIRONMENT AND LAND MISCELLANEOUS CASE E017 OF 2026 GMA ONGONDO, J AUGUST 26, 2026 BETWEEN KIPROP KORIR ................................................................................ 1ST APPLICANT CHARLES KIMELI ROP .................................................................. 2ND APPLICANT AND ALICE CHESIGE SANG ...................................................................... RESPONDENT RULING 1. 2. The Two applicants through Maritim and Company Advocates instituted the application by way of a Notice of Motion dated 16th August 2026 seeking the orders infra; a. That this Honourable Court be pleased to transfer Kapsabet Principal Magistrate’s Court E & L Suit No.14 of 2020 (Alice Chesige Sang vs Kiprop Korir & Charles Kimeli Rop) from the Magistrate’s Court at Kapsabet to Kapsabet Environment & Land Court. b. That the Applicants and Respondent be granted leave to restate the suit upon transfer of the suit before the Kapsabet Environment and Land Court. c. That the costs of this application be provided for. The mainstay of the application is the applicants’ 23-paragraphed afidavit sworn on even date by the 2nd applicant alongside the grounds set out on the face of it. Briefiy, the applicants’ asserted that respondent filed Kapsabet Principal Magistrate’s Court E & L Suit No.14 of 2020. That in response to thereto, the applicants filed a defence and Counterclaim dated 4th May 2021, raising, inter alia, adverse possession. That the magistrate’s court lacks jurisdiction over the counter claim thereby precipitating the present suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5356/eng@2026-08-26 1
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3. The respondent was duly served as disclosed in the afidavit of service sworn on 21st August 2026 by Naumi Chebichi, a duly authorized process server of this court. Nonetheless, the respondent failed to respond to the application. 4. The main issue in the application pertains to the counter claim for, inter alia, adverse possession. Therefore, does the magistrate’s court lack jurisdiction over the counter claim? 5. In the case of Sugawara vs Kiruti {2024} KECA 1417 (KLR) at page 50 the Court of Appeal reasoned; ‘ ...we find that Magistrates’ courts do not have jurisdiction to determine the claims of adverse possession.......’ 6. This court is guided by the decision in the case of Samuel Kamau Macharia and another vs Kenya Commercial Bank & 2 others [2012] KESC 8 (KLR) at page 68 where the Supreme Court of the Republic of Kenya stated; ‘A court’s jurisdiction fiows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law……’ 7. Additionally, in the case of Republic -vs- Karisa Chengo & 2 others {2017} KESC 15 (KLR), the Supreme Court of Kenya held; ‘…..Lack of jurisdiction thus renders a court’s decision void as opposed to it being merely voidable. When an act is void, it is a nullity ab initio. It cannot found any legal proceedings and Lord Denning’s decision in the Privy Council case of Benjamin Leonard Macfoy United Africa Company Limited (UK) {1962} AC 152 succinctly makes this point…..’ 8. The source of jurisdiction of this Honourable court is Article 162 (2) (b) of the Constitution of Kenya 2010 as read with section 13 of the Environment and Land Court Act 2015 (2011). It is crystal clear that the counter claim to the suit relates to, inter alia, ownership of the suit land by adverse possession which is the exclusive jurisdiction of this court as held in Sugawara case (supra). 9. It is therefore, the finding of this Honourable Court that the present application is unchallenged, cogent and meritorious. 10. The upshot is that the application dated 16th August 2026 is hereby allowed in terms of prayers (c) and (d) therein as stated in paragraph 1 (a) and (b) hereinabove with no orders as to costs. 11. It is so ordered. DATED AND DELIVERED VIRTUALLY THIS 26TH DAY OF AUGUST 2026 HON. G M A ONGONDO JUDGE In the presence of; 1. Mr Maritim learned counsel for the 1st and 2nd applicants 2. Kariuki and Emma, Court Assistants https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5356/eng@2026-08-26 2
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