[2020] KEELC 882 (KLR)
The court found that magistrates' courts, presided over by duly gazetted magistrates with the requisite pecuniary jurisdiction, have the jurisdiction to hear and determine claims of adverse possession. The application to transfer the suit was therefore not merited, as the subordinate court was competent to handle...
Source-derived case information.
- Citation
- [2020] KEELC 882 (KLR)
- Parties
- Applicant: Jeanbye Mungole Mugesani; Respondent: Filemona Fundi Indira
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Miscellaneous Case 13 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit
- Outcome
- application dismissed
- Judges
- NA Matheka
- Legal Topics
- Jurisdiction of Magistrates Courts, Transfer of Suits, Adverse Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeanbye Mungole Mugesani
Applicant
Filemona Fundi Indira
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit
Legal Issues
- 1 Whether the magistrates' court has jurisdiction to hear and determine claims based on adverse possession.
- 2 Whether Vihiga PMCC ELC No. 28 of 2020 should be transferred to the Environment and Land Court at Kakamega.
Ratio Decidendi
The court found that magistrates' courts, presided over by duly gazetted magistrates with the requisite pecuniary jurisdiction, have the jurisdiction to hear and determine claims of adverse possession. The application to transfer the suit was therefore not merited, as the subordinate court was competent to handle the matter. The absence of a response from the respondent did not affect the determination, as the legal position on jurisdiction was clear and settled by statute and case law.
Court Disposition
application dismissed
Orders
- The application to transfer Vihiga PMCC ELC No. 28 of 2020 to the Environment and Land Court at Kakamega is dismissed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC MISC. CASE NO. 13 OF 2020
JEANBYE MUNGOLE MUGESANI...............................................APPLICANT
VERSUS
FILEMONA FUNDI INDIRA .......................................................RESPONDENT
RULING
The application is dated 23rd July 2020 and is and is brought under section 1A, 1B, 3 seeking the following orders;
1. That Vihiga PMCC ELC No. 28 of 2020 be transferred to Kakamega High Court Environment and Land Court for hearing and disposals.
2. That the costs of this application be in cause.
It is based on the affidavit of Washington Athung’a and the grounds that, the subordinate court do not have clear jurisdiction to determine the matter due to conflicting high court decisions. This is to have the matter determined and in the interest of justice. He relied in the case of Njoroge Gitau vs. Kabuthu Macharia and Peter Turuthi Nyahururu ELC No. 81 of 2017.
This court has considered the application and the submissions therein. The application was served but the respondents failed to attend court or file any response. In the case of Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & Another [2020] eKLR the court held that;
“In view of the foregoing discourse, there are ample reasons based on the express provisions ofSection 26 (3)and(4) of the Environment and Land Court Act, 2011 and Section 9 (a)of theMagistrates’ 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, 2011and who has the requisite pecuniary jurisdiction, magistrates’ courts have jurisdiction and power to handle cases involving claims of adverse possession.”
I hold the same view and find that the magistrates do have jurisdiction to `entertain claims based on adverse possession. I find this application is not merited and I dismiss it with no orders as to costs as the same is undefended.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 26TH OCTOBER 2020.
N.A. MATHEKA
JUDGE