1. Before me for determination is a notice of motion dated 4th December 2025 brought pursuant to the provisions of Order 11 rule 3(h) of the Civil Procedure Rules where the applicants herein have sought for the following orders;
a) That Busia CMC ELC NO. E015 of 2024 be and is hereby transferred to this court and consolidated with this case (ELC E 036 OF 2025 OS) for hearing and determination.
b) That costs of this application be in the cause.
2. The application is supported by the grounds set out therein as well as the supporting affidavit of equal date sworn by Canan Walter Mugeni, the respondent in ELC E036 of 2025 who deposed that he instituted a suit against the 2nd applicant, Conex Mwaro in Busia CMC ELC 015 of 2024 seeking an order of permanent injunction against her from staying, using and interfering with LR No. Bukhayo/ Mundika /12760 (here after referred to as the suit property). In reply, the 2nd applicant stated that she had never occupied or carried out any construction on the suit property. The applicant deposes that since CMC ELC 015 of 2024 raises similar questions of law and fact with the instant suit, the suit before the magistrate court should be transferred to this court and the two suits be consolidated.
3. On 9th December 2025, parties to the suit recorded and filed a consent order as follows:
“By consent of Oye Ashioya Advocate for the applicant for the applicants and Mr Otanga Advocates for the respondents, it has hereby been agreed;
1. That Busia CMC ELC No. E015 of 2024 be and is hereby transferred to this court and consolidated with this case for hearing and final determination.
2. That costs of this application be in the cause.”
4. I have read and considered the application, grounds, supporting affidavit and consent order and l find the issues for the court’s determination to be whether the two descriptions of land in the two suits refer to a single property necessitating a consolidated hearing in the superior court and whether the applicant has moved the court in the appropriate manner by filing the instant application in this suit.
5. Section 18 of the Civil Procedure Act bestows upon the High Court (read Environment and Land Court) the powers to transfer suits of a civil nature. The said provisions of the law provide:
(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 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.
(2) Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
6. Under section 13 (2) of the Environment and Land Court Act, this court has a broad mandate to deal with disputes relating to title, tenure, boundaries, rates valuations, adverse possession among others. The Magistrates under section 26 of the same Act can hear and determine land cases subject to their pecuniary limits and nature of the claim. Looking at the orders sought in CMC E015 of 2024, the magistrate court has pecuniary jurisdiction to hear and determine the suit filed before that court. Having confirmed that the suit property in the two suits is the same and to save on time, cost and avoid issuance of conflicting orders, I see no harm in transferring and consolidating the two suits as the orders sought in the suit before the magistrate court are for a permanent injunction and eviction and the instant suit seeks orders of ownership by adverse possession.
7. On whether the instant application is properly before this court, it should be noted that ordinary applications filed under the Civil Procedure touching on issues in the suit before the court, are filed via chamber summons or notice of motion. These include requests for interlocutory injunctions, striking out pleadings, joining or substituting parties, seeking summary judgment, setting aside or varying judgments, amendment of plaint or defence among others.
8. There are some applications which are filed incidental to the suit because they are not part of the main suit. These are filed as miscellaneous applications which are separate proceedings to address issues like advocate/client bill of costs, registration of foreign judgments, leave to appeal out of time, transfer of cases, anticipatory bail among others. They are generally filed through a notice of motion supported by a supporting affidavit and annexures and they do not require a pre-existing dispute before them but require an applicant to justify their need to the court.
9. The application before this court for consideration is one such application. In the instant case, the plaintiff/applicant filed the application in this suit instead of filing it as a separate proceeding by way of miscellaneous application as the issue of transfer of suit is an issue incidental to the suit and not an issue arising in the suit. The applicant has not followed the correct procedure to approach the court. Having failed to do so, I find the application not to be properly before this court and l strike it out with no orders as to costs.
10. Orders accordingly.
Ruling dated, signed and delivered in Busia this 12th day of May, 2026 in the absence of the parties
Court Assistant: Tracy