[2022] KEELC 1549 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT SIAYA

ELC MISC APPLICATION NO. 7 OF 2021

JUSTO ODYMAH NGONGA…..…………..……...…….………... APPLICANT

VERSUS

AMONDI ODYMAH OLUOKO………………….…...…………RESPONDENT

RULING

Applicant’s case

1. Within the provisions of Section 3A, 17and18 of the Civil Procedure Actand Order 51of the Civil Procedure Rules,the applicant by a motion dated 25/02/2021 sought the following main relief;

a) That the hounourble court be pleased to transfer Siaya SPMC ELC No.104 of 2018 Amondi Odymah vs Justo Odymah Ngonga to this honourable court for hearing and determination.

2. The motion is supported by grounds on the face of the motion and a supporting affidavit sworn by the applicant dated 9/3/2021. The main ground proffered is that the lower court does not have jurisdiction to hear and determine a claim of adverse possession which claim, he had raised in his amended defence and counterclaim which was filed on 14/3/2019.

Respondent’s case

3. The applicant neither put in a response nor filed written submissions. However, even if the motion is unopposed, this court has to determine the motion on its own merits.

Applicant’s submissions

4. The applicant filed written submissions dated 24/11/2021 in which he contended that the Section 18of the Civil Procedure Actdonates powers to this court to transfer a suit from the lower court to this court. He submitted that by virtue of Section 38 of the Limitation of Actions Act, the lower court did not have jurisdiction to hear and determine claims of adverse possession.

Analysis and determination

5. I have considered the application, the supporting affidavit and written submissions. I have also considered the relevant legal framework and jurisprudence. The single question falling for determination is whether the magistrates court has jurisdiction to hear and determine matters relating to adverse possession.

6. Section 9(a) of the Magistrate’s Court’s Actand Section 26of the Environment and Land Court Actprovides that gazetted magistrates have jurisdiction to have hear and determine cases on land and environment. The Limitationof Actions Act was enacted well before the promulgation of the 2010 Constitution and within Section 38 it provides that claims of adverse possession must be filed in the High Court vide Originating Summons.

7. Despite the enactment of the Environment and Land Court Act, 2011 and the Magistrates’ Courts Act, 2015 which grant certain courts jurisdiction to hear and determine cases on land and environment, Section 38of theLimitationof Actions Act has not been amended to reflect the changes that were promulgated in our Constitution.

8. In view of this lacuna, the ELC courts have interpreted Section38 (1) of the Limitation of Actions Act with alterations, adaptations, qualifications and exceptions so as to put it in conformity with Section 26 (3)and(4) of the EnvironmentandLand Court Act, 2011 and Section 9 (a)of theMagistrates’ Courts Act, 2015. This adaptation has been guided by the provisions of Section7 (1) of the Sixth Schedule of the Constitution which provides:

“All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution”.

9. In a line of judicial decisions including; Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & another [2020] eKLR, Philip Kithaka v Mercy Karimi Nyaga [2021] eKLRand Christopher Kangogo Cheboiboch v Susan Chepichi Chepkiyeng [2021] eKLR,the ELC courts have held that gazetted magistrates’ courts have jurisdiction to hear and determine claims of adverse possession. This court will not depart from the findings of these decisions.

10. I do find that the suit is properly before the trial court and the motion lacks merits. The respondent did not file a response to the motion and consequently, I shall not award costs to him.

11. Ultimately, I make the following disposal orders;

a) This miscellaneous suit is hereby dismissed with no orders as to costs.

b) The case is marked as closed.

12. It is so ordered.

Ruling delivered virtually.

Dated, signed and delivered this 10th day of February 2022.

In the presence of:

Applicant - No appearance.

Respondent- No appearance.

Court Assistant: Ishmael

HON. A. Y. KOROSS

JUDGE

10/2/2022