[2019] KEELC 1229 (KLR)
The court found that the Principal Magistrate’s Court at Kapenguria did not have jurisdiction to entertain the Originating Summons for adverse possession, as the land in question was registered under the Registered Land Act and such matters must be commenced in the High Court or the Environment and Land Court. Since...
Source-derived case information.
- Citation
- [2019] KEELC 1229 (KLR)
- Parties
- Plaintiff: Kevin Kiviasi Kezengwe; Defendant: Mungai Wachira
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 20 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit
- Outcome
- application dismissed with costs
- Judges
- FM Njoroge
- Legal Topics
- Jurisdiction of Courts, Transfer of Suits, Adverse Possession, Originating Summons Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kevin Kiviasi Kezengwe
Plaintiff
Mungai Wachira
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit
Legal Issues
- 1 Whether the Principal Magistrate’s Court at Kapenguria had jurisdiction to hear and determine the Originating Summons for adverse possession.
- 2 Whether the Environment and Land Court at Kitale can order the transfer of Originating Summons No. 15 of 2018 from the Magistrate’s Court to itself for hearing and determination.
Ratio Decidendi
The court found that the Principal Magistrate’s Court at Kapenguria did not have jurisdiction to entertain the Originating Summons for adverse possession, as the land in question was registered under the Registered Land Act and such matters must be commenced in the High Court or the Environment and Land Court. Since the original court lacked jurisdiction, the Environment and Land Court at Kitale could not order the transfer of the suit. The application to transfer the suit was therefore incompetent and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The notice of motion dated 13/8/2019 is dismissed with costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
ELC MISC. CIVIL APPL. NO. 20 OF 2019
KEVIN KIVIASI KEZENGWE..............PLAINTIFF
VERSUS
MUNGAI WACHIRA............................DEFENDANT
RULING
1. The applicant filed a motion dated 13/8/2019 seeking that the Originating Summons No. 15 of 2018 be transferred from the Principal Magistrate’s Court at Kapenguria to the Environment and Land Court at Kitale for hearing and final determination.
2. The grounds upon which that application is brought are that the subject matter of this suit was filed before the Principal Magistrate’s Court at Kapenguria vide O.S. 15 of 2018 who has no jurisdiction to hear and determine this matter; that the transfer would expedite the hearing and determination of this suit as this court has wide discretion to grant the orders being sought by the plaintiff and that it is in the interests of justice that this suit be heard in the Environment and Land Court at Kitale.
3. The application is supported by an affidavit by the counsel for the plaintiff dated 13/8/2019.
4. The application is not opposed. It is trite that for a court to order the transfer of a matter from one court to another the original court in which the matter was filed ought to have had jurisdiction.
5. However I have considered that proceedings for adverse possession must commence in a court possessed of proper jurisdiction and in accordance with Order 37 Rule 7of the Civil Procedure Act the provisions of that Order are as follows:
“1. An application under Section 38 of the Limitation of Actions Act shall be made by the original summons.”
6. Section 38 of the Limitation of Actions Act provides as follows:
“1. Where a person claims to have become entitled by advance 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.”
7. Section 37 of the Limitations of Actions Act cites the Government Lands Act, the Registration of Titles Act, the Land Titles Act and the Registered Land Act.
8. I have examined the Originating Summons attached to the application and concluded that the land subject matter of the application was registered under the Registered Land Act Cap 300in 1984. It is clear from the foregoing that the Magistrates Court at Kapenguria was not possessed of jurisdiction to handle the matter from the beginning and the Originating Summons should not have been filed in a Magistrates Court in the first place.
9. It is trite that for a court to order the transfer of a matter from one court to another the original court in which the matter was filed ought to have had jurisdiction. As the original court in which the Originating Summons was initially filed did not have jurisdiction, I find that the notice of motion dated 13/8/2019 is incompetent and it is hereby dismissed with costs.
Dated, signed and delivered at Kitale on this 28th day of October, 2019.
MWANGI NJOROGE
JUDGE
28/10/2019
Coram:
Before - Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Nyakundi holding brief for Katina for applicant
N/A for respondent
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
28/10/2019