The Applicant herein, Virginia M’Magigu Njue, filed this Notice of Motion dated 11th September 2025, seeking primarily the transfer of Embu Magistrate’s ELC Case No. E38 of 2023 from the Magistrate’s Court to this Court for trial and disposal. The application is premised on the grounds that the suit, which seeks a declaration of ownership by adverse possession under the Limitation of Actions Act (Cap 22), was filed in the Magistrate’s Court under a misapprehension of jurisdiction, and that recent superior court decisions have clarified that such jurisdiction vests exclusively in the Environment and Land Court (ELC).
The Respondent opposes the application, arguing that: (i) a suit filed in a court without jurisdiction is null and void ab initio and cannot be transferred; (ii) the suit was improperly commenced by way of plaint rather than Originating Summons; and (iii) the Respondent's counterclaim for eviction falls within the Magistrate’s Court's jurisdiction.
The Applicant relies on authorities including Pauline Chemuge Sugawara v Matarakwa Leposo & Others (Civil Appeal No. E141 of 2022) [2024] KECA 1417 (KLR), delivered on 11 October 2024, and submits that this Court has unfettered discretion under Section 18(1)(b) of the Civil Procedure Act (Cap 21) to grant the transfer in the interests of justice.
LEGAL ANALYSIS AND DETERMINATION
The principal suit was instituted on 24th July 2023 in the Magistrate’s Court, seeking title by adverse possession. At that time, the jurisdictional landscape for such claims was marked by significant judicial divergence, as acknowledged in subsequent appellate authority. The Court of Appeal in Sugawara v Kiruti (supra) resolved this ambiguity by holding that Magistrates' Courts lack jurisdiction over adverse possession claims, interpreting Sections 37 and 38 of the Limitation of Actions Act as vesting such matters exclusively in the ELC (equivalent to the High Court under Article 162(2)(b) of the Constitution). However, this ruling is declarative and post-dates the filing by over a year.
Prior to the Sugawara clarification in October 2024, Kenyan courts exhibited conflicting views on whether Magistrates' Courts, empowered under Section 9(a) of the Magistrates’ Courts Act, 2015 (read with Section 26 of the Environment and Land Court Act, 2011), could entertain adverse possession claims.
Decisions affirming jurisdiction included Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & Another [2020] KEELC 3911 (KLR), where the ELC held that duly gazetted Magistrates have jurisdiction over such claims relating to title, provided they fall within pecuniary limits. Similarly, Christopher Kangogo Cheboiboch v Susan Chepichi Chepkiyeng supported this expansive interpretation.
Contrasting rulings denying jurisdiction comprised Michael Chebii Toroitich v Peter Mogin Yatich Chebii [2013] eKLR, Jesee Njoroge Gitau v Kibuthu Macharia & Another [2019] eKLR, Njoki Wainaina v Josephat Thuo Githachuri & 3 Others [2021] eKLR, and Reuben v Mwangangi & 7 Others [2023] KEELC 21899 (KLR), which emphasized that adverse possession is not expressly delegated and remains reserved for the ELC.
These conflicts created legitimate uncertainty, as noted in Sugawara itself (paras 37–43, 46–50), describing the issue as "vexing" with decisions "not in accord." The Applicant's counsel depones that the suit was filed under a bona fide reliance on the affirmative line of authority, without evidence of bad faith.
While Sugawara applies retrospectively, rendering the Magistrate’s Court without jurisdiction ab initio (Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1), strict nullity must yield to constitutional imperatives in transitional contexts. Article 159(2)(d) of the Constitution mandates justice without undue regard to procedural technicalities. Sections 1A and 1B of the Civil Procedure Act promote expeditious, proportionate, and affordable resolution, avoiding multiplicity of suits.Post-Sugawara transitional rulings, such as Alu v Muyanda (Environment and Land Miscellaneous Case E030 of 2025) [2026] KEELC 689 (KLR), have recognized pre-clarification confusion and allowed transfers to preserve proceedings filed in good faith. Similarly, Nyapola & Another v Ndunde [2026] KEELC 296 (KLR) underscores that such assumptions should not penalize litigants.
Section 18(1)(b) empowers this Court to withdraw suits from subordinate courts. Although Kagenyi v Musiramo [1968] EA 43 cautions against transferring null suits, discretion exists where the ELC holds original jurisdiction (Section 13 ELC Act) and no prejudice ensues. Here, proceedings have advanced since 2023, with closed pleadings and a counterclaim. Refusal would compel fresh filing, risking delay and costs contrary to the overriding objective.
Adverse possession claims are preferably by Originating Summons (Order 37 Rule 7 CPR), but the plaint here, in a contested matter with a counterclaim, is not fatally defective and can be regularized by amendment (Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR). The counterclaim for eviction, intertwined with title issues, supports holistic determination in this Court.
Given the pre-Sugawara conflicts, good-faith filing, and justice imperatives, the application merits allowance. Transfer cures the jurisdictional flaw without prejudice, ensuring efficient resolution.
ORDERS
1. The Notice of Motion dated 11th September 2025 is allowed.
2. Embu Magistrate’s ELC Case No. E38 of 2023 is withdrawn from the Magistrate’s Court and transferred to this Court for hearing and determination.
3. The Applicant shall, within 30 days, file an amended Originating Summons to regularize the mode of commencement.
4. The Respondent shall be at liberty to file and serve a Replying affidavit or a appropriate response to an Originating Summons in accordance with the law.
5. Proceedings shall continue from the existing record, subject to further directions.
6. Costs in the cause.
DATED, SIGNED AND DELIVERED AT EMBU THIS 19TH DAY OF FEBRUARY 2026.
-----------------------------------------------------
JUDGE
ENVIRONMENT AND LAND COURT
In the presence of;
1. Mr. Morris Njage for the Applicant.
2. Respondent/Advocate-absent.
3. Diana C/A.
| 5 |