Mwendwa Munyalo & another v Prestone Mbonzo Nzioka

Constitution of Kenya, Order 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. They pray for the following orders from this court: a) Spent. b) The Honourable court be pleased to transfer the case, Machakos CMEL No. E088 of 2021: Preston Mbonzo Munyalo & Magistrate's Nzioka Kyalo Court -vs- Munyalo at Mwendwa from Machakos to the the Environment and Land Court at Machakos for hearing and determination. c) The costs of the application be provided for. 2. The motion is supported by the grounds set out in the body thereof and by the supporting affidavit of even date, sworn by Jacob Mwendwa Kavela, who informs the court that he is the 1st applicant. Succinctly, he informs the court that the deceased applicant and the respondents are related by marriage. The late Nzioki Mutevu was the father-in-law of the late Nelson Munyalo, who was the applicants' father. The case Machakos CMEL No. E088 of 2021, currently before the Magistrates' Court in Machakos, is a land dispute between the estates and two sets of beneficiaries over the ownership of land parcels known ELC EP MISC. APPL.E004 OF 2026 RULING as Machakos Kiima Settlement 2

page 2 of 13

Scheme/37 and Plot No. 37B in Machakos Kiima Settlement Scheme/51 (suit properties). 3. In an unexpected development, the administrator of the deceased respondent filed a suit in the lower court against the applicants through a plaint dated 7th September 2021. The suit seeks, among other things, a declaration that the applicants are trespassers on the property, their eviction, and the exhumation of the bodies of all the applicants' relatives, including their late father, from the suit properties. In response, the applicants filed a statement of defence and counterclaim dated 28th October 2021, claiming, among others, adverse possession. However, when the matter was heard on 23rd February 2026 before Hon. James Ombura (SPM) at the Magistrate's court in Machakos, the court declined to proceed, stating it lacked jurisdiction to decide on claims of adverse possession. The court directed the parties to seek transfer of the suit to the appropriate court. As a result, the Magistrates' court stopped proceedings after determining that the applicants had raised a counterclaim based on adverse possession. 4. When the matter came before this court for hearing on 20 May 2025, Mr. Rotich for the applicants prayed for the court to allow the reliefs sought and, in support of his arguments, he relied on the decisions of Nyapola & another v Ndunde [2026] KEELC 296 (KLR), Ngina & 5 others (Defending ELC EP MISC. APPL.E004 OF 2026 RULING 3

page 3 of 13

and Suing in Their Personal Capacity as Well as Representatives of the Estate of John Muinde Musau Deceased) v Mbaluku [2026] KEELC 290 (KLR) and Analo v Shinali (Sued on behalf of the Estate of Rajiko Okwaro Isack) [2026] KEELC 696 (KLR). As for the deceased respondent, his counsel, Miss. Kabuu informed the court that she did not thoroughly oppose the considered motion. the Consequently, motion, grounds, having affidavit, annexures, oral submissions, relevant legal framework and jurisprudence, it is the considered view of this court that the issue for determination is whether this court should transfer the lower court matter to itself. We now deal with it. 5. Respecting this issue on transfer of suits, Section 18(1) of the Civil Procedure Act provides that: “Power of High Court to withdraw and transfer case instituted in subordinate court (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage(a) transfer any suit, appeal or other proceeding pending before it for trial or ELC EP MISC. APPL.E004 OF 2026 RULING 4

page 4 of 13

disposal to any court subordinate to it and competent to try or dispose of the same; or (b)withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter(i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or (iii) retransfer the same for trial or disposal to the court from which it was withdrawn.” 6. Therefore, under Section 18(1) of the Civil Procedure Act, this court has the authority to oversee and transfer cases for trial and final resolution to itself or to subordinate courts. This provision grants the court the broad power to transfer suits at any point during the proceedings, either upon a party's request or suo moto. 7. When dealing with the issue of jurisdiction to transfer cases, the Supreme Court case of Albert Chaurembo Mumba and ELC EP MISC. APPL.E004 OF 2026 RULING 5

page 5 of 13

7 Others vs Maurice Munyao & 148 Others (2019) eKLR held that: “However, as it was well elucidated in the case of Kagenyi vs Musiramo & Another (1968) EALR 43, an order for transfer of a suit from one court to another cannot be made unless the suit has been brought, in the first instance, to a court which has jurisdiction to try it. It’s therefore irrelevant as parties cannot consent to confer jurisdiction to a Court or tribunal where it is not provided by law.” 8. It is now established that the Magistrates courts do not have the jurisdiction to hear and decide claims based on the doctrine of adverse possession, according to the recent 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 [2024] KECA 1417 (KLR). 9. There were previously conflicting views on whether Magistrate’s courts have the authority to hear cases of adverse possession. Some argued that because these courts are empowered to handle land matters within their pecuniary limits, they have jurisdiction over all such cases. Others contended that under Order 37, Rule 7 of the Civil ELC EP MISC. APPL.E004 OF 2026 RULING 6

page 6 of 13

Procedure Rules, claims of adverse possession must be filed as Originating Summons supported by an affidavit and a certified title extract in the High Court (in this case, the ELC as the superior court). This latter school argued that until this Rule is amended, Magistrate’s courts lack the jurisdiction to hear adverse possession claims. The position of the latter school of thought was affirmed by the Court of Appeal in Sugawara v Kiruti (Supra), which settled the controversy. 10. The decisions the applicants have relied upon to seek the transfer of this matter to this court are merely persuasive, and it appears there are two schools of thought on the transfer of claims of adverse possession to this court from the Magistrate’s Court. The first school, whose decisions the applicants have relied upon, held that the ELC can transfer matters of adverse possession that were filed prior to the decision in Sugawara v Kiruti (Supra) to itself. As to cases regarding the first school of thought, in Nyapola (Supra), the court held: “The respondent submitted that as the applicants filed the case before a court without jurisdiction, the same was a nullity. I however disagree with that position. I take the view that as there was in existence a Superior Court's pronouncement in 2021 when the instant suit was filed; ELC EP MISC. APPL.E004 OF 2026 RULING that the Magistrates Court had 7

page 7 of 13

jurisdiction to hear and determine adverse possession claims, the applicant herein lawfully filed their claim in the subordinate court as that court then had jurisdiction to determine the dispute. That position having changed in 2024, the applicant's prayer to bring the suit to this court for hearing and determination is proper.” See also Analo (Supra) 11. Concerning the second school of thought, the court in Biwott & another v Amin; Tanui (Interested Party) [2025] KEELC 3391 (KLR) held thus:“This court has already determined that the Chief Magistrates’ Court had no jurisdiction to entertain the suit before it. That determination arises not from a newly enacted statute, but from an interpretation of existing statutes by a superior court. For this reason, the only logical conclusion to be made is that the instant application fails to meet the threshold for an order to have the subordinate court case transferred for hearing and determination before the ELC.” ELC EP MISC. APPL.E004 OF 2026 RULING 8

page 8 of 13

See also Sinei v Rono & 3 others [2026] KEELC 1808 (KLR) 12. Rooted in the doctrine of stare decisis, this court concurs with the findings of the latter school of thought that a court lacks the authority to transfer a matter to itself if the original court wherein the matter was initially filed had been divested of jurisdiction. The rulings of this second school of thought are based on the decisions of courts of a higher hierarchy than the ELC and are binding upon this court. This can be seen from the Apex court’s decision in Albert Chaurembo Mumba (Supra) and the Court of Appeal decision of Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tours & Travel [2016] eKLR, which pronounced itself in the following manner: “In numerous decided cases, courts, including this court have held that it would be illegal for the High Court in exercise of its powers under Section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion ELC EP MISC. APPL.E004 OF 2026 RULING 9

page 9 of 13

to reign. It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks, parties cannot even seek refuge under the “O2” principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the situation. In the same way, a court of law should not through what can be termed as judicial craftsmanship sanctify an otherwise incompetent suit through a transfer.” See also Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR] 13. However, the case before the lower court in this instant presents unique circumstances in which the lower court possesses jurisdiction to entertain the respondent’s suit, filed as the plaintiff, for trespass, and a portion of the applicants’ counterclaim of trust; nonetheless, it lacks jurisdiction to hear the segment of the applicants’ counterclaim of adverse possession. What is the appropriate course of action in such a peculiar scenario? When faced with similar circumstances, the court in the Estate of John Muinde Musau (Supra) held: - ELC EP MISC. APPL.E004 OF 2026 RULING 10

page 10 of 13

“In Section 17 and 18 of the Civil Procedure Act confer on the High Court of Kenya limited jurisdiction to transfer a case instituted in a subordinate court where more than one subordinate court has jurisdiction to try the case from one such subordinate court to the other or from the High Court to a subordinate court or vice versa. Guided by the above statutory and case law and invoking the court's inherent and wide discretionary powers and in order to do justice to the parties, I transfer this matter to ELC Machakos for hearing and determination with no orders as to costs.” 14. Imperatively, when transferring cases, considerations such as the balance of convenience, questions of expense, the interests of justice, and the potential for undue hardship must be taken into account. If the court is uncertain as to whether, under all the circumstances, it is proper to order the transfer, the application shall be denied. 15. Given that the lower court possesses jurisdiction to hear the matter before it and only lacks jurisdiction over a portion of the applicants’ counterclaim, this court is of the considered opinion that it would be inappropriate for the applicants to amend their ELC EP MISC. APPL.E004 OF 2026 RULING 11

page 11 of 13

pleadings before the lower court, abandon their counterclaim in the lower court on the limb of adverse possession, and subsequently initiate a new suit based on adverse possession before this court. Allowing such action would create a scenario in which parallel proceedings concerning identical issues, parties, and subject matter could be initiated, potentially causing judicial embarrassment should this court deliver judgment on the claim of adverse possession while the lower court issues conflicting orders in the lower court case on the other claims. 16. In invoking Section 3A, which grants this court inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court, this court finds that it is appropriate to transfer the lower court to itself. It finds that notice of motion dated 7 April 2026 is merited and for allowance. In the end, Machakos CMEL No. E088 of 2021: Preston Mbonzo Nzioka -vs- Mwendwa Munyalo & Kyalo Munyalo is hereby transferred from Machakos Chief Magistrate's court to this court for hearing and determination. There shall be no orders as to costs. This file is hereby effectively marked as closed. It is so ordered. Delivered and Dated at Machakos this 29th day of September, 2026. ELC EP MISC. APPL.E004 OF 2026 RULING 12

page 12 of 13

HON. A. Y. KOROSS JUDGE 29.09.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform; In the presence of; Ms. Kanja Court Assistant. Mr. Wanga for applicants. Miss Wangui Kabuu for respondent. ELC EP MISC. APPL.E004 OF 2026 RULING 13

page 13 of 13