1. The instant ruling is in respect of the application by way of a Notice of Motion dated 10th November 2025 by the applicant/defendant through the firm of Cheruiyot Melly and Associaites Advocates for the following orders;
a) THAT this Honourable Court be pleased to issue orders transferring Chief Magistrates’s Court Kapsabet Land Case No. 39 of 2020 Annah Chepleting Tarus vs Joseph Kipruto Koech from the Chief Magistrate’s Court at Kapsabet to the Environment and Land Court of Kenya at Kapsabet to allow fair, just, equitable and expeditious disposition of the cause.
b) THAT the costs of the application be provided for.
c) THAT such further and/or other orders be made as the court may deem fit and expedient.
2. The application is premised upon the grounds set out on the face of it as well as the applicant’s supporting affidavit of nine paragraphs. In summary, the applicant stated that the respondent sued him in Kapsabet CMC Land Case number 39 of 2020 and he responded thereto by raising adverse possession claim over the suit land reference number Nandi/Cheptarit/248 which is located within the jurisdiction of this Honourable Court. That the said Magistrate’s Court ceased to have jurisdiction in respect of the adverse possession claim further to the Court of Appeal decision in Nairobi COA Civil Appeal No. E141 of 2022.
3. The respondent/plaintiff was duly served as shown in the affidavit of service sworn on 3rd September 2026 by learned counsel, Mr Victor Kiprono. Besides, the respondent failed to respond to the application.
4. Mr Kiprono learned counsel for the applicant drew the attention of this Honourable Court to the claim for adverse possession. Therefore, he urged the court to allow the application pursuant to sections 1A, 1B and 18 of the Civil Procedure Act Chapter 21 Laws of Kenya.
5. In the foregone, the central issue to resolve herein is whether the magistrate’s court is seized of jurisdiction in respect the claim for adverse possession over the suit land as raised in the suit before the same court.
6. It is worth to note that this Honourable court has jurisdiction over adverse possession claim raised in the suit under Article 162 (2) (b) of the Constitution of Kenya 2010 as read with section 13 of the Environment and Land Court Act 2015 (2011).
7. Notably, in the case of Sugawara vs Kiruti {2024} KECA 1417 (KLR) at page 50, the Court of Appeal observed;
‘ ...we find that Magistrates’ courts do not have jurisdiction to determine the claims of adverse possession.......’
8. It is trite law 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; see Samuel Kamau Macharia and another vs Kenya Commercial Bank & 2 others [2012] KESC 8 (KLR) at page 68.
9. Moreover, in the case of Republic-vs-Karisa Chengo & 2 others {2017} KESC 15 (KLR), the Supreme Court of the Republic of Kenya noted;
‘…..Lack of jurisdiction thus renders a court’s decision void as opposed to it being merely voidable. When an act is void, it is a nullity ab initio. It cannot found any legal proceedings and Lord Denning’s decision in the Privy Council case of Benjamin Leonard Macfoy United Africa Company Limited (UK) {1962} AC 152 succinctly makes this point…..’
10. In the premises, the present application relates to the jurisdiction of the magistrate’s court in respect of the claim for adverse possession raised in the suit before it. The application is pretty firm, cogent and meritorious.
11. Thus, the entire application dated 10th November 2025 is hereby allowed as per prayer three (3) therein for transfer of suit to this court for fair and equitable hearing and determination without delay with no orders as to costs.
12. It is so ordered.
DATED and DELIVERED VIRTUALLY this 7TH day of SEPTEMBER 2026
G M A ONGONDO
JUDGE
PRESENT;
Mr Victor Kiprono instructed by Cheruiyot Melly learned counsel for the applicant/Defendant
Kariuki and Emma, Court Assistants
a) THAT this Honourable Court be pleased to issue orders transferring Chief Magistrates’s Court Kapsabet Land Case No. 39 of 2020 Annah Chepleting Tarus vs Joseph Kipruto Koech from the Chief Magistrate’s Court at Kapsabet to the Environment and Land Court of Kenya at Kapsabet to allow fair, just, equitable and expeditious disposition of the cause.
b) THAT the costs of the application be provided for.
c) THAT such further and/or other orders be made as the court may deem fit and expedient.
2. The application is premised upon the grounds set out on the face of it as well as the applicant’s supporting affidavit of nine paragraphs. In summary, the applicant stated that the respondent sued him in Kapsabet CMC Land Case number 39 of 2020 and he responded thereto by raising adverse possession claim over the suit land reference number Nandi/Cheptarit/248 which is located within the jurisdiction of this Honourable Court. That the said Magistrate’s Court ceased to have jurisdiction in respect of the adverse possession claim further to the Court of Appeal decision in Nairobi COA Civil Appeal No. E141 of 2022.
3. The respondent/plaintiff was duly served as shown in the affidavit of service sworn on 3rd September 2026 by learned counsel, Mr Victor Kiprono. Besides, the respondent failed to respond to the application.
4. Mr Kiprono learned counsel for the applicant drew the attention of this Honourable Court to the claim for adverse possession. Therefore, he urged the court to allow the application pursuant to sections 1A, 1B and 18 of the Civil Procedure Act Chapter 21 Laws of Kenya.
5. In the foregone, the central issue to resolve herein is whether the magistrate’s court is seized of jurisdiction in respect the claim for adverse possession over the suit land as raised in the suit before the same court.
6. It is worth to note that this Honourable court has jurisdiction over adverse possession claim raised in the suit under Article 162 (2) (b) of the Constitution of Kenya 2010 as read with section 13 of the Environment and Land Court Act 2015 (2011).
7. Notably, in the case of Sugawara vs Kiruti {2024} KECA 1417 (KLR) at page 50, the Court of Appeal observed;
‘ ...we find that Magistrates’ courts do not have jurisdiction to determine the claims of adverse possession.......’
8. It is trite law 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; see Samuel Kamau Macharia and another vs Kenya Commercial Bank & 2 others [2012] KESC 8 (KLR) at page 68.
9. Moreover, in the case of Republic-vs-Karisa Chengo & 2 others {2017} KESC 15 (KLR), the Supreme Court of the Republic of Kenya noted;
‘…..Lack of jurisdiction thus renders a court’s decision void as opposed to it being merely voidable. When an act is void, it is a nullity ab initio. It cannot found any legal proceedings and Lord Denning’s decision in the Privy Council case of Benjamin Leonard Macfoy United Africa Company Limited (UK) {1962} AC 152 succinctly makes this point…..’
10. In the premises, the present application relates to the jurisdiction of the magistrate’s court in respect of the claim for adverse possession raised in the suit before it. The application is pretty firm, cogent and meritorious.
11. Thus, the entire application dated 10th November 2025 is hereby allowed as per prayer three (3) therein for transfer of suit to this court for fair and equitable hearing and determination without delay with no orders as to costs.
12. It is so ordered.
DATED and DELIVERED VIRTUALLY this 7TH day of SEPTEMBER 2026
G M A ONGONDO
JUDGE
PRESENT;
Mr Victor Kiprono instructed by Cheruiyot Melly learned counsel for the applicant/Defendant
Kariuki and Emma, Court Assistants