[2022] KEELC 13742 (KLR)
The Environment and Land Court found that the magistrate's court lacked jurisdiction to entertain a suit for adverse possession, as such jurisdiction is exclusively vested in the High Court by section 38 of the Limitations of Actions Act. The trial magistrate's decision to dismiss the suit was therefore made without...
Source-derived case information.
- Citation
- [2022] KEELC 13742 (KLR)
- Parties
- Appellant: Raphael Kariuki Githuka; Respondent: Shadia Ahmed Adan; Respondent: Ali Ahmed
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E014 of 2021
- Procedural Posture
- Environment and Land Appeal / Judgment
- Outcome
- Appeal allowed on ground of lack of jurisdiction; suit to be heard de novo before a competent court.
- Judges
- MN Gicheru
- Legal Topics
- Adverse Possession, Jurisdiction of Courts, Limitations of Actions, Magistrates Court Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Raphael Kariuki Githuka
Appellant
Shadia Ahmed Adan
Respondent
Ali Ahmed
Respondent
Procedural Posture
Environment and Land Appeal / Judgment
Legal Issues
- 1 Whether the magistrate's court had jurisdiction to determine a claim for adverse possession.
- 2 Whether the dismissal of the appellant's suit was valid in light of the court's jurisdiction.
Ratio Decidendi
The Environment and Land Court found that the magistrate's court lacked jurisdiction to entertain a suit for adverse possession, as such jurisdiction is exclusively vested in the High Court by section 38 of the Limitations of Actions Act. The trial magistrate's decision to dismiss the suit was therefore made without jurisdiction, rendering the proceedings a nullity. The appeal was allowed on this ground alone, and the matter was directed to be heard de novo before a court of competent jurisdiction to ensure the parties' right to a fair hearing under Article 50(1) of the Constitution.
Court Disposition
Appeal allowed on ground of lack of jurisdiction; suit to be heard de novo before a competent court.
Orders
- Appeal allowed on ground of lack of jurisdiction.
- Suit to commence de novo before a court of competent jurisdiction.
Full Case Text
Judgment text and source record
23 paragraphs
Githuka v Adan & another (Environment and Land Appeal E014 of 2021) [2022] KEELC 13742 (KLR) (26 October 2022) (Judgment)
Neutral citation: [2022] KEELC 13742 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment and Land Appeal E014 of 2021
MN Gicheru, J
October 26, 2022
Between
Raphael Kariuki Githuka
Appellant
and
Shadia Ahmed Adan
1st Respondent
Ali Ahmed
2nd Respondent
Judgment
1. On March 17, 2021, Hon JN Nthuku, principal magistrate Loitoktok delivered a judgment in which she dismissed a suit filed by Raphael Kariuki Githuka (appellant) against Shadia Ahmed Adan and Ali Ahmed (respondents).
2. The suit in the lower court had been commenced by way of originating summons dated November 26, 2018. It sought to have the appellant declared the owner of LR Loitoktok/Emperon/229 by way of adverse possession.
3. Aggrieved by the dismissal of his suit by the learned magistrate, the appellant filed this appeal on April 18, 2021 listing thirteen grounds.
4. I have noted one glaring issue that goes to the root of the case and the proceedings of the case before the learned trial magistrate. This issue has not been addressed by the appellants’ counsel in the submissions dated May 13, 2022 and filed in court on July 1, 2022. The issue is simply whether the trial magistrate had jurisdiction to entertain a suit relating to adverse possession.My finding on this fundamental question is that the learned magistrate had no jurisdiction in view of section 38 of the Limitations of Actions Actwhich provides as follows.“(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”.The above provision ousts the jurisdiction of the magistrates court from all suits relating to acquisition of title through adverse possession.It has been held in the case ofJesee Njoroge Gitau v Kibuthu Macharia and another (2019) eKLR (Nyahururu ELC) that Magistrates’ courts lack jurisdiction to hear claims relating to adverse possession.
5. The basic rule on jurisdiction is that a court lacking it must down its tools. This was the holding in the case of Owners of Motor Vessels “SS Lillian” (1989) KLR1. There is also the case of Christopher Wafula Mutoro v Richard Lordia Lokere (2017) eKLR (Eldoret Court of Appeal).
6. In conclusion, I allow the appeal on the ground of lack of jurisdiction by the learned trial Magistrate. In order that the dispute may be heard and determined as envisaged by article 50 (1) of the Constitution, I direct that the suit commences de novobefore a court of competent jurisdiction.No order as to costs.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 26TH DAY OF OCTOBER, 2022. M.N. GICHERUJUDGE..............................