[2015] KEHC 2750 (KLR)
The Magistrates' Court does not have jurisdiction to entertain claims for adverse possession as per Order 37 of the Civil Procedure Rules. Since the respondent has raised a counterclaim for adverse possession in the suit, it is appropriate and efficient to transfer the entire suit to the Environment and Land Court,...
Source-derived case information.
- Citation
- [2015] KEHC 2750 (KLR)
- Parties
- Applicant: John Chelimo Seguton; Respondent: Joseph Kirur Kiplangat
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 240 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit From Magistrates' Court to Environment and Land Court
- Outcome
- application allowed
- Judges
- MA Silau
- Legal Topics
- Eviction Proceedings, Adverse Possession, Jurisdiction of Courts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Chelimo Seguton
Applicant
Joseph Kirur Kiplangat
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit From Magistrates' Court to Environment and Land Court
Legal Issues
- 1 Whether the Magistrates' Court has jurisdiction to entertain a claim for adverse possession.
- 2 Whether the suit should be transferred to the Environment and Land Court for determination of all issues.
Ratio Decidendi
The Magistrates' Court does not have jurisdiction to entertain claims for adverse possession as per Order 37 of the Civil Procedure Rules. Since the respondent has raised a counterclaim for adverse possession in the suit, it is appropriate and efficient to transfer the entire suit to the Environment and Land Court, which has the requisite jurisdiction to determine all issues, including the claim for adverse possession. This approach avoids unnecessary multiplicity of proceedings and additional costs to the parties. The application for transfer is therefore allowed.
Court Disposition
application allowed
Orders
- The suit Nakuru CMCC No. 293 of 2012 is transferred from the Chief Magistrates' Court at Nakuru to the Environment and Land Court at Nakuru for hearing and determination.
- No orders as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
MISC. APPLICATION NO. 240 OF 2013
JOHN CHELIMO SEGUTON……………………..APPLICANT
VERSUS
JOSEPH KIRUR KIPLANGAT……..………....RESPONDENT
RULING
(Application to transfer suit from Magistrates' Court to Environment and Land Court; suit for eviction; counterclaim for adverse possession; Magistrates' court having no jurisdiction to entertain a claim for adverse possession; suitable to have matter transferred for determination of all issues; application allowed; no orders as to costs)
1. The application herein seeks orders of the transfer of the suit Nakuru CMCC No. 293 of 2012 from the Chief Magistrates' Court at Nakuru to the Environment and Land Court at Nakuru for hearing and determination. The application is supported by the affidavit of the applicant originally filed with the application and a further affidavit later filed. The application is not opposed by the respondent.
2. The applicant is the plaintiff in the suit Nakuru CMCC No. 293 of 2012. It is his case that he is the registered owner of the land parcel Nakuru/Teret/741 and that the defendant in the year 2002 trespassed into it. In the suit, he has inter alia asked that the defendant be evicted. The defendant filed defence and counterclaim. He refuted the claims of the plaintiff and in the counterclaim, he pleaded that he is entitled to the suit land by dint of the doctrine of adverse possession.
3. It is the position in our statutes that the Magistrates' court has no jurisdiction to entertain a claim for adverse possession. See Order 37 of the Civil Procedure Rules. It is this court which has jurisdiction to try the claim for adverse possession. The defendant could of course file a separate suit in this court for adverse possession but to avoid additional costs to the parties, I think it is best that I order the said suit to be transferred to this court for the determination of all issues.
4. I therefore allow the application but make no orders as to costs.
Dated, signed and delivered in open Court at Nakuru this 3rd day of March 2015.
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
AT NAKURU
In presence of : -
Mrs Ndeda for applicant
Mr Morintat holding brief for Mr B. N Kipkoech for respondent
Emmanuel Maelo : Court Clerk
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
AT NAKURU