1. The Applicant moved this Court by a Notice of Motion dated 11th September 2025 seeking an order that Embu Magistrate’s ELC Case No. E039 of 2023 be transferred to this Court for hearing and final determination. Costs are sought to be in the cause.
2. The basis of the application is that the suit before the Magistrate’s Court is one for adverse possession, and that subsequent to the filing of the suit, the Court of Appeal clarified that such claims fall outside the jurisdiction of subordinate courts and lie exclusively before the Environment and Land Court.
3. The Respondent opposes the application, contending that a suit filed without jurisdiction is a nullity and incapable of transfer, and that the Applicant ought to withdraw and file a fresh suit before this Court.
4. The sole issue for determination is whether, in the circumstances of this case, the suit pending before the Magistrate’s Court should be transferred to this Court.
The jurisdictional landscape at the time of filing
5. There is now no controversy that claims founded on adverse possession are within the exclusive jurisdiction of the Environment and Land Court, as clarified by the Court of Appeal in Sugawara Ltd v Tommie Martin & Another and reaffirmed in Civil Appeal No. E141 of 2022 [2024] KECA 1417.
6. However, courts do not interpret jurisdictional questions in a vacuum or divorced from their temporal context. At the time Embu Magistrate’s ELC Case No. E039 of 2023 was instituted, there existed divergent judicial opinions on whether Magistrates’ Courts, exercising delegated jurisdiction under section 26 of the Environment and Land Court Act and section 9 of the Magistrates’ Courts Act, could entertain claims of adverse possession within their pecuniary limits.
7. Indeed, prior to the Court of Appeal’s authoritative pronouncement, it was a reasonable and prevalent understanding within the legal profession that Magistrates’ Courts could hear and determine adverse possession claims, provided they fell within the prescribed monetary jurisdiction. Litigants cannot be faulted for acting on a legal position that was, at the time, unsettled.
8. The subsequent clarification by the Court of Appeal did not invalidate all pending matters ab initio; rather, it settled the law going forward and provided guidance on the proper forum for determination of such claims.
Whether the suit is a nullity
9. The Respondent’s argument that the suit is a nullity ab initio overlooks the transitional reality outlined above. Where jurisdiction was assumed in good faith, based on an unsettled legal position later clarified by a superior court, it would be unduly harsh and contrary to justice to treat such proceedings as legally non-existent.
10. This Court is persuaded that the suit before the Magistrate’s Court was not a deliberate abuse of process, nor was it filed in patent defiance of settled law. It was commenced in a forum that, at the material time, was widely believed to be competent.
11. In those circumstances, the suit cannot properly be described as a nullity in the strict sense contemplated in cases where jurisdiction is clearly and unequivocally absent from the outset.
Transfer in the interests of justice
12. Section 18 of the Civil Procedure Act empowers this Court to transfer suits pending before subordinate courts. That power must be exercised judiciously, bearing in mind constitutional values and the need to facilitate the just, expeditious and proportionate resolution of disputes.
13. Article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities, while Article 48 guarantees access to justice. Forcing the Applicant to withdraw the suit and file a fresh one would occasion delay, increase costs, and expose the Applicant to possible limitation challenges, none of which would advance substantive justice.
14. The Respondent has not demonstrated any prejudice that would arise from transfer. On the contrary, the Respondent will retain the full opportunity to contest the claim before the proper court.
15. Allowing transfer in these circumstances does not amount to retrospectively conferring jurisdiction on the Magistrate’s Court. It merely acknowledges the historical context in which the suit was filed and ensures that the dispute is determined by the court constitutionally mandated to do so.
Disposition
16. In light of the foregoing, this Court is satisfied that the interests of justice militate in favour of allowing the application.
17. Accordingly, the Notice of Motion dated 11th September 2025 is allowed on the following terms:
a. Embu CM-ELC Case No. E039 of 2023 is hereby transferred to the Environment and Land Court at Embu for hearing and final determination.
b. Upon transfer, the matter shall be placed before the Presiding Judge for directions on further conduct, including compliance with the Environment and Land Court (Procedure) Rules.
c. Costs of the application shall be in the cause.
DATED, SIGNED AND DELIVERED AT EMBU THIS 12TH DAY OF FEBRUARY 2026.
………………………………………JUDGEENVIRONMENT AND LAND COURT
1. Applicant/ Advocate – Absent.
2. Respondent/ Advocate – Absent.
3. Diana Kemboi – C/A.
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