Before Court is the Notice of Motion dated 29th July, 2025 in which the Applicants seek orders for stay of proceedings in Bungoma Chief Magistrate’s Court ELC Case No. E007 of 2022 and for withdrawal and transfer of that suit to the Environment and Land Court at Bungoma for hearing and final determination.
The application is supported by an affidavit sworn on the same date and is premised on the ground that the suit pending before the subordinate court contains, by way of counterclaim, substantive claims for adverse possession over portions of land parcel No. E. BUKUSU/N. SANG’ALO/791, which claims, it is contended, fall within the exclusive jurisdiction of this Court.
The Respondent did not file a replying affidavit or grounds of opposition. The application is therefore unopposed.
Background
The record shows that the Respondent instituted Bungoma Chief Magistrate’s Court ELC Case No. E007 of 2022. The Applicants herein, as defendants in that suit, filed a statement of defence and counterclaim dated 13th March, 2023 seeking, inter alia, declarations that the Respondent’s title to specified portions of the suit land had been extinguished by operation of sections 7, 13 and 17 of the Limitation of Actions Act, and that the Applicants had acquired title thereto by adverse possession.
It is further apparent from the record that when the matter came up before the subordinate court, directions were issued requiring any application for transfer to be filed within a specified period, failing which the counterclaim would stand dismissed.
The Applicants contend that their application has been necessitated by a clarification of the law by the Court of Appeal on jurisdiction over adverse possession claims and not by any omission or lack of diligence on their part.
Issues for Determination
The issues that fall for determination are narrow and may be stated as follows:
a) Whether this Court should stay further proceedings in Bungoma Chief Magistrate’s Court ELC Case No. E007 of 2022; and
b) Whether the said suit should be withdrawn from the subordinate court and transferred to this Court for hearing and final determination.
Analysis
The jurisdiction of this Court to withdraw and transfer a suit from a subordinate court is anchored in section 18(1)(b) of the Civil Procedure Act. The exercise of that power is discretionary and must be guided by the interests of justice and the overriding objective of the court process under sections 1A and 1B of the Act.
Central to the present application is the question of jurisdiction. It is trite law that jurisdiction is foundational. As was stated in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 at page 14, a court acting without jurisdiction must down its tools.
The counterclaim before the subordinate court is grounded on adverse possession under the Limitation of Actions Act. The Court of Appeal in Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiruti & 3 Others [2023] KECA ___ (Civil Appeal No. E141 of 2022) decisively held that jurisdiction to hear and determine claims for adverse possession is vested exclusively in the Environment and Land Court. That decision is binding on this Court and on all subordinate courts by virtue of the doctrine of precedent.
A court cannot confer upon itself jurisdiction by consent of the parties, nor can jurisdiction be assumed on the basis of convenience. Where a court lacks jurisdiction, any proceedings conducted are a nullity, however well intentioned. See Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, para. 68.
The substance of the dispute before the subordinate court, as revealed by the pleadings, squarely falls within the remit of adverse possession. To allow the matter to proceed before a court lacking jurisdiction would be to expose the parties to the real risk of conducting proceedings in vain, contrary to the dictates of judicial economy and the right to a fair hearing under Article 50 of the Constitution.
Comparative jurisprudence supports this approach. In Gcaba v Minister for Safety and Security [2009] ZACC 26 at para. 75, the Constitutional Court of South Africa emphasised that jurisdiction is determined by the nature of the claim as pleaded and that matters must be heard by the court constitutionally or statutorily designated to determine them.
In England, the principle has similarly been applied that where exclusive jurisdiction is vested in a specialist court, proceedings commenced elsewhere must be transferred or struck out to preserve the integrity of the adjudicative process: see R (Cart) v Upper Tribunal [2011] UKSC 28.
In the present case, the Applicants have demonstrated that the application for transfer was prompted by a clarification of the law and not by dilatory conduct. No prejudice has been shown to be occasioned to the Respondent if the suit is transferred to this Court. On the contrary, the transfer will ensure that the dispute is heard and determined by a court clothed with the requisite jurisdiction.
As regards the prayer for stay of proceedings, such an order is intended to preserve the substratum of the dispute and prevent the occurrence of proceedings that may ultimately be rendered nugatory. Given the directions issued by the subordinate court and the risk of dismissal of the counterclaim, a stay is justified in the circumstances. See Global Tours & Travels Ltd; Nairobi HC Winding Up Cause No. 43 of 2000 [2000] eKLR.
Disposition
In the result, and for the reasons set out above, the Notice of Motion dated 29th July, 2025 is merited.
Accordingly, the Court makes the following orders:
a) There shall be a stay of further proceedings in Bungoma Chief Magistrate’s Court ELC Case No. E007 of 2022.
b) Bungoma Chief Magistrate’s Court ELC Case No. E007 of 2022 is hereby withdrawn from the subordinate court and transferred to the Environment and Land Court at Bungoma for hearing and final determination.
c) Upon transfer, the file shall be placed before the Deputy Registrar of this Court for directions on case management.
d) Costs of the application shall be in the cause.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT EMBU THIS 05TH DAY OF FEBRUARY, 2026.
E. C. CHERONO
JUDGE
In the presence of:
1. Mr. Masiga for the Applicant.
2. Respondent Advocate-absent.
3. Court Assistant-Diana
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