1. The Notice of Motion before this court for consideration is dated 13th October 2025 and it is seeking the following substantive orders:
a. That pending hearing and determination of this suit, this court do issue an order of stay of proceedings in Kilifi Chief Magistrates Court ELC Case Number E045 of 2021 Chenda Ziro and 9 others versus Ngowa Ziro;
b. That the costs of this application be provided for.
2. The application is supported by the sworn affidavit of Christopher Kaingu, Ziro the 1st applicant. The grounds upon which the motion is brought are as follows: the applicant initially filed the case in the lower Court but was compelled withdraw it and file the present suit upon learning that the Magistrate’s Court lacks jurisdiction to hear and determine claims for adverse possession. In that case there was a counterclaim for trespass over the land parcel subject matter of the present suit lodged by the respondent. The fundamental issue in the litigation over the suit property is that of ownership and right of possession and the determination of the claim for adverse position in this court will conclusively determination of ownership and right possession thereby rendering the respondent's claim in the lower Court nugatory.
3. The application is opposed by the respondent through his sworn Replying Affidavit dated 28th October 2025 in which states that the applicant and others were the originators of the main suit at Kilifi and he only filed a counterclaim but, that the claim in that case is different from what it is in this suit; that though he does not live on the land, he does cultivate the same; that the Kilifi court has jurisdiction to proceed with the hearing or the suit before it. Then the applicants have not paid the costs in that suit.
4. Both parties filed submissions which I have considered in the preparation of this ruling.
5. The main ground of the applicant is that Magistrates Courts lack jurisdiction to hear and determine cases of adverse possession as held in the very recent Court of Appeal of Sugawara versus Kiruti and 3 others Civil Appeal E141 of 2022 (2024) KECA 1417 KLR. That is the correct position.
6. What I understand the respondent to say in opposition is that the case before the Magistrates court was premised on a different cause of action. That may be so, it being trite that an original suit is distinct from a counterclaim, that suit no longer exists having been withdrawn by the applicants herein.
7. On a preliminary basis, I find that the issue of costs is peripheral to the core matters of the dispute and in the light of an unqualified right of access to justice envisaged by Article 50 of the Constitution, this court can not allow non-payment of costs to hinder the progress of a case properly filed before it, more so when there is still a pending counterclaim in the lower court, meaning the case file is not yet fully closed, and also when there are in place statutory mechanisms for the recovery of costs.
8. Also, having withdrawn their earlier claim, the applicants still have a right to lodge a second claim under what they consider to be the proper cause of action for this court’s determination. A claim under the doctrine of adverse possession happened to be their choice. This court does not agree that the application before it is for summary dismissal simply because it is the applicants who had commenced the suit in the lower court. Holding as such would amount to arbitrarily shutting the applicants out of the corridors of justice which is not in accordance with the principle is espoused in Article 50 of the Constitution. That this court ought to hear and determine that application on its merits remains so especially because that lower court suit has already been withdrawn.
9. This court is also of the view that since whatever defence the respondent may have wanted to raise in the lower court in the withdrawn suit can also be raised in this court, the claim herein will dispose of the dispute between the parties with finality. This Court is compelled to remain seized of this matter because it cannot be handled in the lower Court by reason of lack of jurisdiction.
10. Arising from the foregoing, the right conclusion is that allowing the lower Court to continue with proceedings before it would be anathematic to respect usually accorded to the judicial hierarchy in our justice system, and such approach may eventually occasion the justice system embarrassment in the form of contradictory determinations from two different echelons of the system without the lower court’s not being an appellate decision from the other. The only remedy to that situation is to allow the application before me and I hereby allow it in terms of prayer number 3 thereof and I therefore make the following express final orders:
a. That pending hearing and determination of this suit, an order is hereby issued staying all proceedings in Kilifi Chief Magistrate’ s Court ELC Case Number for E045 of 2021 Chenda Ziro and 9 others versus Ngowa Ziro;
b. As parties have been dealing with matters in this litigation for a while now, they are not strangers to the facts involved, and in the interests of expeditious disposal of this dispute, the respondent shall comply expeditiously with the rules within 14 days from today by filing and serving his Replying Affidavit;
c. The applicants are hereby granted corresponding leave to respond to the filings of the respondent within 14 days from the date of service thereof;
d. The Originating Summons shall be listed for directions as to hearing on 16th March 2026;
e. The costs of the present application shall be in the cause.
Dated, signed and delivered at Malindi on this 12th February 2026.
a. That pending hearing and determination of this suit, this court do issue an order of stay of proceedings in Kilifi Chief Magistrates Court ELC Case Number E045 of 2021 Chenda Ziro and 9 others versus Ngowa Ziro;
b. That the costs of this application be provided for.
2. The application is supported by the sworn affidavit of Christopher Kaingu, Ziro the 1st applicant. The grounds upon which the motion is brought are as follows: the applicant initially filed the case in the lower Court but was compelled withdraw it and file the present suit upon learning that the Magistrate’s Court lacks jurisdiction to hear and determine claims for adverse possession. In that case there was a counterclaim for trespass over the land parcel subject matter of the present suit lodged by the respondent. The fundamental issue in the litigation over the suit property is that of ownership and right of possession and the determination of the claim for adverse position in this court will conclusively determination of ownership and right possession thereby rendering the respondent's claim in the lower Court nugatory.
3. The application is opposed by the respondent through his sworn Replying Affidavit dated 28th October 2025 in which states that the applicant and others were the originators of the main suit at Kilifi and he only filed a counterclaim but, that the claim in that case is different from what it is in this suit; that though he does not live on the land, he does cultivate the same; that the Kilifi court has jurisdiction to proceed with the hearing or the suit before it. Then the applicants have not paid the costs in that suit.
4. Both parties filed submissions which I have considered in the preparation of this ruling.
5. The main ground of the applicant is that Magistrates Courts lack jurisdiction to hear and determine cases of adverse possession as held in the very recent Court of Appeal of Sugawara versus Kiruti and 3 others Civil Appeal E141 of 2022 (2024) KECA 1417 KLR. That is the correct position.
6. What I understand the respondent to say in opposition is that the case before the Magistrates court was premised on a different cause of action. That may be so, it being trite that an original suit is distinct from a counterclaim, that suit no longer exists having been withdrawn by the applicants herein.
7. On a preliminary basis, I find that the issue of costs is peripheral to the core matters of the dispute and in the light of an unqualified right of access to justice envisaged by Article 50 of the Constitution, this court can not allow non-payment of costs to hinder the progress of a case properly filed before it, more so when there is still a pending counterclaim in the lower court, meaning the case file is not yet fully closed, and also when there are in place statutory mechanisms for the recovery of costs.
8. Also, having withdrawn their earlier claim, the applicants still have a right to lodge a second claim under what they consider to be the proper cause of action for this court’s determination. A claim under the doctrine of adverse possession happened to be their choice. This court does not agree that the application before it is for summary dismissal simply because it is the applicants who had commenced the suit in the lower court. Holding as such would amount to arbitrarily shutting the applicants out of the corridors of justice which is not in accordance with the principle is espoused in Article 50 of the Constitution. That this court ought to hear and determine that application on its merits remains so especially because that lower court suit has already been withdrawn.
9. This court is also of the view that since whatever defence the respondent may have wanted to raise in the lower court in the withdrawn suit can also be raised in this court, the claim herein will dispose of the dispute between the parties with finality. This Court is compelled to remain seized of this matter because it cannot be handled in the lower Court by reason of lack of jurisdiction.
10. Arising from the foregoing, the right conclusion is that allowing the lower Court to continue with proceedings before it would be anathematic to respect usually accorded to the judicial hierarchy in our justice system, and such approach may eventually occasion the justice system embarrassment in the form of contradictory determinations from two different echelons of the system without the lower court’s not being an appellate decision from the other. The only remedy to that situation is to allow the application before me and I hereby allow it in terms of prayer number 3 thereof and I therefore make the following express final orders:
a. That pending hearing and determination of this suit, an order is hereby issued staying all proceedings in Kilifi Chief Magistrate’ s Court ELC Case Number for E045 of 2021 Chenda Ziro and 9 others versus Ngowa Ziro;
b. As parties have been dealing with matters in this litigation for a while now, they are not strangers to the facts involved, and in the interests of expeditious disposal of this dispute, the respondent shall comply expeditiously with the rules within 14 days from today by filing and serving his Replying Affidavit;
c. The applicants are hereby granted corresponding leave to respond to the filings of the respondent within 14 days from the date of service thereof;
d. The Originating Summons shall be listed for directions as to hearing on 16th March 2026;
e. The costs of the present application shall be in the cause.
Dated, signed and delivered at Malindi on this 12th February 2026.