[2018] KEELC 2671 (KLR)
The court found that the Chief Magistrate’s Court lacks jurisdiction to hear and determine suits based on adverse possession, as such matters fall within the exclusive jurisdiction of the Environment and Land Court. The previous order transferring the suit to the Chief Magistrate’s Court was therefore made in error....
Source-derived case information.
- Citation
- [2018] KEELC 2671 (KLR)
- Parties
- Applicant: Julius Mbaka; Respondent: Naivasha Kureiya; Respondent: Jane Cianjoka Gancengu Mwiandi alias Jane Cianjoka Mwiandi; Respondent: Dorothy Kagendo Mwindi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 4 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Review and Set Aside Transfer Order
- Outcome
- Application allowed. Order transferring suit to Chief Magistrate’s Court set aside. Suit to be heard by Environment and Land Court.
- Judges
- FM Njoroge
- Legal Topics
- Adverse Possession, Jurisdiction of Courts, Transfer of Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Mbaka
Applicant
Naivasha Kureiya
Respondent
Jane Cianjoka Gancengu Mwiandi alias Jane Cianjoka Mwiandi
Respondent
Dorothy Kagendo Mwindi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Review and Set Aside Transfer Order
Legal Issues
- 1 Whether the Chief Magistrate's Court has jurisdiction to hear a suit based on adverse possession.
- 2 Whether the order transferring the suit to the Chief Magistrate's Court was erroneous and should be set aside.
Ratio Decidendi
The court found that the Chief Magistrate’s Court lacks jurisdiction to hear and determine suits based on adverse possession, as such matters fall within the exclusive jurisdiction of the Environment and Land Court. The previous order transferring the suit to the Chief Magistrate’s Court was therefore made in error. Both parties agreed that the originating summons for adverse possession could not be heard by the lower court. Consequently, the application to review and set aside the transfer order was allowed, and the suit was ordered to be transferred back to the Environment and Land Court for hearing and disposal.
Court Disposition
Application allowed. Order transferring suit to Chief Magistrate’s Court set aside. Suit to be heard by Environment and Land Court.
Orders
- The order made by ELC, Meru on 17th September, 2014 transferring HCCC No. 188 of 2002 (OS) to Chuka Chief Magistrate’s Court is set aside.
- CMCC No. 133 of 2014 – Chuka is transferred back to the Environment and Land Court for hearing and disposal.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC MISCELLANEOUS CASE NO. 04 OF 2018
JULIUS MBAKA.........................................................................................................................................APPLICANT
VERSUS
NAIVASHA KUREIYA....................................................................................................................1ST RESPONDENT
JANE CIANJOKA GANCENGU MWIANDI ALIAS JANE CIANJOKA MWIANDI..........2ND RESPONDENT
DOROTHY KAGENDO MWINDI...............................................................................................3RD RESPONDENT
(BEING SUED AS LEGAL REPRESENTATIVE IN THEIR CAPACITY AS WIDOWS OF THE DECEASED)
RULING
1. This application is dated 27th June, 2018 and seeks orders:
1. That the honourable court be pleased to review and or set aside the order made by ELC, Meru on 17th September, 2014 transferring HCCC No. 188 of 2002 (OS) to Chuka Chief Magistrate’s Court now under court file; CMCC NO. 133 OF 2014 – Chuka.
2. That the honourable court be pleased to transfer back CMCC No. 133 of 2014 – Chuka to this court for hearing and disposal.
3. That the costs of this application be in the cause.
2. The application has the following grounds:
a) That the subject matter of this suit is based on a claim for adverse possession which can only be heard by the Environment and Land Court that has the status of the High Court.
b) That it was therefore an error on the part of the ELC, Meru to transfer the matter to the Chief Magistrate’s Court at Chuka, which error this application seeks to correct
3. During interpartes hearing, the parties were in agreement that the main suit, being an O.S, cannot be heard by the CM’s Court.
4. In the circumstances, this application is allowed.
5. Parties to fully comply with order 11, CPR, within 30 days of today.
6. Suit to be heard on 20th September, 2018.
7. Costs shall be in the cause.
8. It is so ordered.
Delivered in open court at Chuka this 9th day of July, 2018
in the presence of:
I.C. Mugo h/b Ochieng Ogutu for Plaintiff/Applicant
Riungu for 1st defendant/Respondent
P.M. NJOROGE
JUDGE