Introduction
1. The notice of motion application dated 14th April 2025, seeks the following orders: -
1) Spent;
2) That Kabarnet MCCC No. E027 of 2023 be transferred to the Environment and Land Court Kabarnet for hearing and determination;
3) That this court issues an order staying the proceedings in Kabarnet MCCC No. E027 of 2023pending and hearing and determination of this application;
4) That the costs be provided for;
2. The application is anchored on the grounds on its face and supporting affidavit of Johnstone Chesang sworn on 14th April, 2025. He avers that the respondent is the plaintiff in Kabarnet MCCC No. E027 of 2023 where he is seeking orders of eviction, permanent injunction and damages for trespass against him (the applicant) who is the defendant.
3. He avers that he was initially acting in person and filed an incomprehensive statement of defence; that in November 2024, he instructed an advocate to act for him who found it necessary to amend his defence; that his advocate filed an application to amend his defence and introduce a counterclaim that he had acquired ownership of the suit property through adverse possession; that the trial court dismissed the application on grounds that it had no jurisdiction to hear and determine a claim for adverse possession. He urges the court to allow his application to enable him file a competent defence and have his claim heard on merit.
4. In opposition, the respondent filed a replying affidavit sworn by Martin Kimengich on 20th May 2025. He avers that the application is misconceived, baseless, and only meant to serve the selfish and myopic interests of the applicant. He admits that the applicant was initially acting in person and had filed a statement of defence; that after he appointed an advocate to act for him, his advocate filed an application seeking leave to amend the defence, annexed a draft amended defence and counterclaim and urged the court to deem it as duly filed. The trial magistrate dismissed the application and directed that the matter proceed for full hearing.
5. He avers that the applicant has no prerogative to interfere with his case and determine where his case should be heard; that the applicant should file his own case before the desired court without interfering with his case. He urges the court to dismiss the application with costs.
6. Pursuant to directions given on 27th May 2025, the application was disposed of by way of written submissions.
SUBMISSIONS
Applicant’s Submissions
7. The applicant filed submissions on 16th June 2025 and identified two issues for determination. These are;
i) Whether this court has jurisdiction to transfer this suit and
ii) Whether there are justifiable reasons to transfer the suit.
8. On the 1st issue, it is submitted that under Section 18 of the Civil Procedure Act, this court has jurisdiction and discretion to transfer any suit. Reliance was placed on the cases of Julius Lekuruito & Another v Nottingham Mwangi & another (2018) eklr and Misc. Application E053 of 2023 Waweru v Prime Auto Solutions Limited, where it was held that the high court has powers to withdraw and transfer a suit instituted in a subordinate court on application of any party or on its own motion where justice of the case demands such action.
9. On the second issue, it is submitted that the applicant sought leave to amend his statement of defence to introduce a claim for adverse possession which magistrate courts have no jurisdiction to hear and determine as clearly stipulated in Sugawara v Kiruti (Sued in her capacity as the administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others [2024] KECA 1417 (KLR). He urges this court to exercise its discretion and transfer the suit to itself for hearing and determination instead of the applicant instituting a separate suit for a claim of adverse possession over the same suit property which will be a waste of precious judicial time. He relied on the case of Misc. Application E007 of 2023 Kirui (suing as the Chairman of Kessir Youth Bunge Self-Help Group) v Kecha Sammy Matonyi t/a Kibochi Ventures.
Respondent’s Submissions
10. In the respondent’s submissions filed on 18th June 2025, the respondent identified the following issues for determination: -
i) Whether Kabarnet MCCC No. E027 of 2023 ought to be transferred to the Environment and Land Court at Kabarnet for hearing and determination;
ii) Whether costs should issue.
11. On the first issue, he submitted that the suit before the magistrate court is before a competent court clothed with jurisdiction under both statute and established precedent; that whereas Sections 17 and 18 of the Civil Procedure Act vest courts with discretionary powers to order transfer of suits either upon application or suo moto to another court of competent and concurrent jurisdiction, the applicant has failed to demonstrate any legal infirmity arising from the suit being heard and determined before the magistrate court; that he has also failed to demonstrate what injustice or undue hardship if any, will be occasioned to him if the suit were to continue before the magistrate court to warrant the exercise of this court’s discretion in his favour. He relied on the case of Hangzhou Agrochemicals Industries Ltd v Panda Flowers Ltd (2021) Eklr as cited in Misc. Application E007 of 2023 Kirui (suing as the Chairman of Kessir Youth Bunge Self-Help Group) v Kecha Sammy Matonyi t/a Kibochi Ventures, where it was held that the court should consider such factors as the motive and character of the proceedings, the nature of the relief or remedy sought, the interests of the litigants and the more convenient administrative of justice, the expense which the parties in the case are likely to incur in transporting and marinating witnesses, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship. If the court is in doubt as to whether under all the circumstances it is proper to order transfer, the application must be refused.
12. It is their case that the suit before the magistrate court seeks orders of eviction, permanent injunction and general damages for trespass which fall within the jurisdiction of the magistrates’ court; that at the time of filing this application, there was no counterclaim for adverse possession before this court; that a prospective intention to plead adverse possession in the future is speculative, procedurally premature and cannot form the basis of a justifiable request for transfer.
13. It is further submitted that the applicant has failed to convince the court that he has good grounds to support transfer of the case as stated in the matters of David Kabungu v Zikarengu & 4 others, Kampala HCCS No. 36 of 1995 and Baru & Another (suing as the Personal Representatives of the estate of George Muriithi Gitahi v Gitahi & 3 others (Environment and Land Miscellaneous Application E047 of 2024) [2025] KEELC 3405.
14. On the issue of costs, he submitted that costs follow the event; that the applicant having failed to establish any legal or factual basis for the orders sought, must bear costs of this application.
Analysis and Determination
15. I have considered the application, affidavits, rival submissions and the law and l find the issues for determination to be: -
i) Whether magistrate courts have jurisdiction to adjudicate claims for adverse possession;
iii) Whether this court has powers to transfer and determine Kabarnet MCCC No. E027 of 2023;
iv) Who should bear the costs of the application?
16. The crux of this application is that magistrate courts lack jurisdiction to hear and determine claims for adverse possession. It is trite that jurisdiction is the cornerstone of any litigation and without it, a court has no legs to stand on nor legal authority to entertain a suit that is not properly before it. Jurisdiction is conferred either by the constitution or statute or judicial precedent. The supreme court in the matter of Interim Independent Electoral Commission 2011 Eklr, held as follows; “Assumption of jurisdiction by courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent…”
17. In Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd [1989] eKLR, the court of appeal said the following on jurisdiction; “Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
18. It follows that jurisdiction can be raised at any stage of the proceedings though it is best raised at the earliest opportunity. It can also be raised by any party. See the matter of National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others (Civil Appeal 656 of 2022) [2023] KECA 80 (KLR) (3 February 2023) (Judgment) where the court stated, “We start our determination by stressing that jurisdiction is a threshold matter which goes to the competence of the court to hear and determine a suit. Jurisdiction can be raised at any stage of the proceedings in the High Court, on appeal and even in the Supreme Court for the first time. It can be raised by any of the parties or by the court, and once raised the court would do well to examine it and render a considered ruling on it.
19. In Sugawara v Kiruti (Sued in her capacity as the administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others supra, the court of appeal held thus, “As to whether the first appellate court rightly concluded that the Magistrates’ Court did not have jurisdiction to hear claims for adverse possession, we begin from the standpoint that questions of jurisdiction can be raised at any time, since it is trite law that jurisdiction is everything.
29.In the case of the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR it was held that: “It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court.” (emphasis ours)
30.As a consequence, there is no doubt that the first appellate judge rightly took up the issue of jurisdiction to ascertain whether the trial court should have determined the claim for adverse possession.
31.Having said that, did the Magistrates’ Court have jurisdiction to hear and determine claims for adverse possession? The question of whether the Magistrates’ courts have jurisdiction to hear and determine some claims has recently become a vexing question for courts following the establishment of the Environment and Land Court under article 162(2)(b) of the Constitution 2010 to hear and determine disputes relating to the environment, use and occupation of and title to land, and the expansion of the hearing and determination of land disputes to the Magistrates courts.
32.Section 13 of the Environment and Land Court Act provides that: “The court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) In exercise of its jurisdiction under article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes— (a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land.”
33.Whereupon, section 26(3) and (4) of the Environment and Land Court Act, 2011 provides that:“(3)The Chief Justice may, by notice in the Gazette, appoint certain magistrates to preside over cases involving environment and land matters of any area of the country.4.Subject to article 169(2) of the Constitution, the Magistrate appointed under sub-section (3) shall have jurisdiction and power to handle —a. disputes relating to offences defined in any Act of Parliament dealing with environment and land; and b. matters of civil nature involving occupation, title to land, provided that the value of the subject matter does not exceed the pecuniary jurisdiction as set out in the Magistrates' Courts Act.”
34.These provisions are replicated under section 9(a) of the Magistrates’ Courts Act, 2015, which gives the Magistrate’s Court’s jurisdiction over environment and land matters. It is provided inter alia that: “A magistrate's court shall in the exercise of the jurisdiction conferred upon it by section 26 of the Environment and Land Court Act (No 19 of 2011) and subject to the pecuniary limits under section 7(1) hear and determine claims relating to —i. environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; ii. compulsory acquisition of land; iii. land administration and management; iv.public, private and community land and contracts, chose in action or other instruments granting any enforceable interests in land; and v.environment and land generally.
35.Over time the Chief Justice has variously gazette notices, and made appointments pursuant to section 26(3) and (4) of the Environment and Land Court Act, 2011.
36.Subsequently, the jurisdiction of the Magistrates’ Courts to hear and determine disputes relating to environment and the use and occupation of, and title to, land was endorsed by this court in the case of Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others [2017] eKLR.
37.However, the distinctive issue in this appeal is concerned with a claim for adverse possession and whether under section 9(a) of the Magistrates’ Courts Act, magistrates can determine such claims. It is instructive that, a consideration of jurisprudence on this issue since the expansion of environment matters to Magistrates’ courts clearly demonstrates that the decisions on this issue are not in accord. A sampling of case law on the question makes this quite evident.
38.For instance, there are decisions that have reached the conclusion that the Magistrates Court has jurisdiction to hear claims for adverse possession. For instance, in the case of Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & another [2020] eKLR DO Ohungo, J held:“Based on the express provisions of section 26(3) and (4) of the Environment and Land Court Act, 2011 and section 9(a) of the Magistrates’ Courts Act, 2015, the principles of interpretation of the Constitution as well as the principles of the Constitution such as devolution, access to services and access to justice for all persons, to find as I hereby do, that so long as presided over by a magistrate who is duly gazetted under section 26(3) of the Environment and Land Court Act, 2011 and who has the requisite pecuniary jurisdiction, magistrates’ courts have jurisdiction and power to handle cases involving claims of adverse possession.”
39.This decision was followed in the cases of Philip Kithaka v Mercy Karimi Nyaga [2021] eKLR and Christopher Kangogo Cheboiboch v Susan Chepichi Chepkiyeng [2021] eKLR both decisions were rendered by LN Mbugua, J.
40.Other decisions of the Environment and Land Court hold contrary views, which seems to be the more predominant position. It was held in the case of Jesee Njoroge Gitau v Kibuthu Macharia & another [2019] eKLR, that:“It is clear from the above provisions of the law that the Magistrate’s court has no jurisdiction to try matters where a party is seeking adverse possession. Indeed, if both matters had been filed in this court, the best order suited to issue upon this application would have been an order for consolidation of both the matters. However, this is not the case in question.”
41.In the case of Michael Chebii Toroitich v Peter Mogin Yatich Chebii [2013] eKLR M Sila, J held:“The matters in issue in Iten RMCC No 9 of 1994 and in the land disputes tribunal, in my view, were whether the defendant holds a half share of the land in trust for the plaintiff. The question whether the plaintiff is entitled to the suit land by way of adverse possession never arose in those proceedings. Indeed, they could not have arisen, as the Magistrate's court does not have jurisdiction to entertain a claim of adverse possession. Neither could adverse possession have been made a ground of attack or defence in those two proceedings. The issue of adverse possession could not have been raised and was never raised in those proceedings.”
42.Similarly, in the case of Njoki Wainaina v Josephat Thuo Githachuri & 3 others; National Land Commission & another (Interested Parties) [2021] eKLR Mboya, J held that:“the magistrate’s court, are not seized with jurisdiction to adjudicate upon claims founded on adverse possession on the face of the explicit provisions contained in sections 37 & 38 of the Limitation of Actions Act.”
43.Recently in the case of Reuben v Mwangangi & 7 others (Environment & Land Case E011 of 2023) [2023] KEELC 21899 (KLR) Yano, J expressed:“I am aware that there exists within the magistrate’s court, duly gazetted magistrates who are granted jurisdiction and power to handle cases involving occupation of and title to land. I am however, not persuaded that the magistrates courts have jurisdiction to adjudicate title on account of adverse possession. It is therefore my finding that the learned trial magistrate rightly declined jurisdiction over the respondents’ claim of adverse possession”.
44.The controversial question of jurisdiction of the Magistrates’ Courts in claims for adverse possession emanates from sections 37 and 38 of the Limitation of Actions Act where it is specifically provided that such claims are to be heard by the “High Court”.
45.In particular, section 38 of the Limitation of Actions Act provides:“(1)Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.(2)…(3)…(4)The proprietor, the applicant and any other person interested may apply to the High Court for the determination of any question arising under this section.(5)…”
46.In other words, reference is to the “High Court” as the court to which such cases are heard, and given the dictates of the Constitution set out above, this should be construed to mean the “Environment and Land Court”, as being the court donated with jurisdiction to hear and determine matters pertaining to adverse possession of land. The effect of this interpretation is that, it is only the Environment and Land Court established under article 162(2)(b) that is mandated to hear these cases. So that, notwithstanding the expansion of the jurisdiction of environment and land usage to Magistrates Courts, it is distinctive that under section 9(a) of the Magistrates Courts Act, various matters are specified for determination, but claims for adverse possession are not included.
47.In the case of Republic v Karisa Chengo & 2 others [2017] eKLR this Court held that:“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”
48.It is our view that, if it was intended that claims for adverse possession be determined by the Magistrates’ Court, nothing would have been easier than for Parliament to have expressly enacted such a provision. So that in view of the express provisions of the law, a strict interpretation of section 38 would mean that hearing and determination of such matters is specifically limited to the Environment and Land Court to the exclusion of Magistrates’ Court.
49.We come to this conclusion also bearing in mind that the jurisdiction of Magistrates’ Courts is largely determined by the pecuniary interest designated for determination by each level of the Magistracy specified in the hierarchy of courts, in terms of section 7 of the Magistrates Courts Act. In claims for adverse possession where the value of the land in question may be unknown, as in the instant case, it could be that by the time of filing, the value of the land subject of determination may be far in excess of the particular Magistrates’ Court’s pecuniary jurisdiction, which for all intents and purposes was not what was intended by the Act.
50.In the circumstances, in view of the express provisions of section 38 of the Limitation of Actions Act, as did the Environment and Land Court, we find that Magistrates’ Courts do not have jurisdiction to determine the claims of adverse possession. As a consequence, the trial magistrate in the instant case rightly disregarded hearing and determining it. In the result, this ground is without merit and is accordingly dismissed.”
20. In the above cited decision, the court of appeal found that magistrate courts lack the requisite jurisdiction to hear and determine adverse possession claims. Section 37(1) of the Limitation of Actions Act Cap 22, provides that any person claiming ownership of land by way of adverse possession must apply to the high court (or a court of equal status such as this court) for an order directing their registration as proprietor. The court of appeal stated that Section 37(1) of the Limitation of Actions Act underscores the legislative intent to vest jurisdiction over adverse possession claims exclusively to the environment and land court being the court donated with jurisdiction to hear and determine adverse possession claims as envisaged in Article 162 (2) of the Constitution of Kenya, 2010. The consequence of the court of appeal decision is that all pending adverse possession claims before magistrate courts are improperly constituted and parties reserve the right to withdraw the suit and file it in the environment and land court.
21. On whether this court has powers to transfer and determine Kabarnet MCCC No. E027 of 2023, Section 18 of the Civil Procedure Act provides: -
"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 proceedings pending in any court subordinate to it, and therefore –
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.’’
22. The High Court (or a court of equal status such as this court) has power to withdraw a suit pending in a subordinate court to it and dispose of the suit or transfer the same for trial and disposal to any court subordinate to it and competent to dispose of the suit. In the present case, the plaintiff filed a suit in Kabarnet Senior Principal Magistrate’s Court as Kabarnet MCCC No. E027 of 2023 seeking orders of eviction, permanent injunction and general damages for trespass against the defendant. The defendant who was acting in person, filed a defence but later appointed counsel who filed an application seeking leave to amend his defence and introduce a claim for adverse possession. The magistrate court found it had no jurisdiction to adjudicate a claim for adverse possession and dismissed the application.
23. The trial magistrate rightly took up the issue of jurisdiction to ascertain whether the trial court should have determined the claim for adverse possession. The applicant also rightly moved this court to transfer the suit which had initially been filed in a court of competent jurisdiction to the environment and land court which is the only court donated with jurisdiction to adjudicate matters pertaining to adverse possession of land.
24. The overriding objective provided for under Section 1A and 1B of the Civil Procedure Act and the inherent power of the court under Section 3A are meant for the attainment of justice to the parties who come to court. The court is therefore under a statutory obligation while interpreting the provisions of the Civil Procedure Act or exercising the powers conferred upon it thereunder, to give effect to the overriding objective and in order to attain this objective, the court must strive towards ensuring the efficient disposal of proceedings at a cost affordable by the respective parties. The respondents have opposed the application and stated that the applicant should file a separate suit to agitate his claim of adverse possession. In my view, filing a new case will go against the efficient use of available judicial and administrative resources and timely disposal of proceedings at an affordable cost and l do not see what prejudice the respondent will suffer if the suit is transferred to this court for hearing and determination.
25. Consequently, I find the application to have merit and l allow prayer 2.
26. Kabarnet MCCC No. E027 of 2023 is ordered withdrawn and transferred to this court for hearing and final determination.
27. Each party to bear their own costs of this application.
28. Orders accordingly.
Dated, signed and delivered virtually at Kabarnet this 15th day of July, 2025
ln the absence of the parties;-
N/A for the Defendant/Applicant
N/A for the Plaintiff/ Respondent
Court Assistant; Ian