BENJAMIN MUKABI MBURU C/O KWELI MINISTRY CHURCH IN ELDORET VS KIGEN NGELECH KIPKORIR sued as administrator of the estate of BENJAMIN EDGAR KIPKORIR

RULING

1. Indeed the Applicant filed an application dated 11^th March, 2025 seeking to withdraw and transfer a lower court proceeding dealing with adverse possession.
2. It is not in dispute that the lower court file is one that deals with adverse possession.
3. Based on the decision of the Supreme Court that only the Environment and Land Court has jurisdiction to entertain issues of adverse possession, the Applicant is now seeking to transfer the said file to the ELC.
4. However, the Respondent are of the view that once the Magistrate Courts were declared not having jurisdiction, then this court lacks the powers to transfer any suit from the lower court on issues of adverse possession because such a suit was filed in a court without jurisdiction.
5. Various judicial pronouncements has settled the issue of whether a suit filed in a court without jurisdiction can be transferred or not.
6. The Applicants are of the view that the suit was filed in the lower court which had jurisdiction before the decision that took away the said jurisdiction.
7. What is clear in this Court’s mind is that once a court is deemed not to have jurisdiction, then any suit that was before it becomes annulity.
8. The Applicant’s application would have been merited before the decision by the Supreme Court taking away the jurisdiction of the lower court to hear adverse possession matters.
9. Unfortunately, after the decision by the Supreme Court, it is this court’s finding that the lower court had no jurisdiction and this court cannot transfer such a case to the ELC.
10. Consequently, the application is not merited and therefore dismissed with costs.

DATED, SIGNED & DELIVERED Virtually in Eldoret  ELC Court on 25^TH  MARCH 2025.

IN THE PRESENCE OF;

Court Assistant: Brian

Plaintiff: Mr. Korir for the Plaintiff/Applicant

Defendant: Mr. Aseso for the Defendant/Respondent