https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5300

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NYERI** **CIVIL APPEAL NO E017 OF 2024** **JAMES MWANGI KINYAGO…...………....................………...APPELLANT** **-VERSUS-** **MARION NJERI GITHINJI** **JOSEPH GATIMU GITHINJI** **ALICE WANGARI GITHINJI………………...........……... RESPONDENTS** **RULING** 1. The Applicant, who was the Appellant in the Appeal, filed an application under Notice of Motion dated 14th December 2024, seeking an order that this Court review and set aside the judgment dated 26th July 2024 dismissing the Appeal, and substitute it with a judgment allowing the Appeal. 2. The application is supported by the Appellant’s affidavit, in which he deposed that this Court’s judgment dated 26th July 2024 dismissed his appeal, thereby enabling the respondents to acquire a portion of his land, known as LR. No. Konyu/Gakuyu, by adverse possession. 3. The Applicant deposed that he has since been advised by his advocate that the magistrate’s court has no jurisdiction to entertain matters of adverse possession, and that any orders made in that regard are a nullity in law. 4. He stated that jurisdiction, as the fundamental aspect of any legal dispute, may be invoked at any procedural stage. 5. Thus, it is the Applicant’s prayer that the judgment be set aside as it is in conflict with the findings of a Superior Court. 6. Counsel for the Applicant submitted written arguments and cited Order 45 Rule 1 of the Civil Procedure Rules regarding the conditions required for a review, which they assert the Applicant has satisfied for the following reasons: 7. The decision of both the Lower Court and this Honourable Court greatly aggrieved the Applicant. 8. Discovery by the Applicant that the Magistrates Court in Karatina had no jurisdiction to entertain the matter from the outset. 9. Discovery that it was a mistake or error for this Honourable Court to uphold a decision made by a court without jurisdiction. 10. The newly discovered decision of the Court of Appeal could not have been known to the Applicant before the Judgment of this Honourable Court dated 26th July, 2026. 11. This application was made without unreasonable delay upon the discovery of the Court of Appeal decision. 12. It is submitted that variant jurisprudence existed, with some Honourable Judges of this Court holding that Magistrate Courts had jurisdiction in cases of adverse possession. In contrast, their colleagues held that adverse possession was entirely within the purview of the Environment and Land Court. That the aforementioned disparity was settled once and for all by the Court of Appeal in **Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiruti & 3 Others (Civil Appeal No. E141 of 2022) [2024] KECA 1417 (KLR).** 13. It is submitted that the aforementioned Court of Appeal decision was rendered on 11th October, 2024, and about two months later, on 14th December, 2022, the Applicant expeditiously filed this application. 14. Relying on the decision in Owners of the **Motor Vessel "Lilian" v Caltex of Oil (Kenya) Ltd (1989) KLR 1,** Counsel for the Applicant submitted that jurisdiction is so fundamental to court proceedings that, if a court lacks jurisdiction, any orders or decisions, however precise or sound in law, are null and void for all purposes. The Applicant invites the Court to allow the application herein and to set aside the judgment of the lower court as well as the judgment of this Honourable Court dated 26th July, 2024, which upheld the decision of the lower court. **The Respondents' submissions.** 1. The Respondents filed written submissions contending that the application does not meet the legal parameters for review set out in Order 45 of the Civil Procedure Rules 2010. They further contend that no error is disclosed by the Applicant, evident on the face of the record, that would warrant review and setting aside of the judgment, and that the Applicant has not adduced any new evidence that has come to his attention and could not have been procured with due diligence. 2. In addition, throughout the proceedings before the lower court and the appeal before the Environment and Land Court, the Applicant, unlike the respondent, has been ably represented by Legal Counsel. 3. Therefore, it is not legally feasible for the Applicant to lodge the instant application based on a judgment of the Court of Appeal delivered after this Court rendered its judgment on 26th July 2024. 4. It was highlighted that the prevailing judicial opinion as at the date of delivery of the judgment on 26th July 2024 is set out in the judgment of The ELC (Ohungo J) in the case of **Patrick Ndegwa Munyua vs Benjamin Kiiru & Another [2020] eKLR**, where it was held that, as long as the Magistrate who delivered the judgment was duly gazetted, they had the requisite jurisdiction. 5. The Respondents argue that a litigant should not be permitted to seek review of a judgment based on new developments and interpretations of the law. They contend that, if the contrary were allowed, litigation would have no end, noting that the Court of Appeal judgment relied upon by the Applicant was delivered on 11th October 2024. They further contend that the said judgment cannot be applied retrospectively to overturn judgments and rulings delivered earlier than 11th October 2024. 6. On the merits of the case, the Respondents submit that all parties have been in occupation of the suit property for over 50 years, and rely on the Court of Appeal judgment in Paul Muthuita -Wanoe (1982) eKLR, to the proposition that the Plaintiffs' claim could be based on both adverse possession and trust, and also invoke the provisions of Article 159 of the Constitution. The Respondents urge this honourable court to dismiss the application dated 14th December 2024 with costs to the Respondents. **Analysis and Determination** 1. The Applicant herein seeks review of this Court’s Judgment dated 26th July 2024, which dismissed his appeal against the **Karatina PMELC Case No. 8 of 2021**, delivered on 22nd June 2022 by Hon. K.M Njalale. 2. The statutory provisions governing orders of review and setting aside are Section 80 of the Civil Procedure Act Cap 21 and Order 45 of the Civil Procedure Rules, 2010. Section 80 of the Act provides that: ***“Any person who considers himself aggrieved—*** ***(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or*** ***(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”*** 1. Order 45, Rule 1 of the Civil Procedure Rules provides that: ***“Any person considering himself aggrieved—*** ***(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or*** ***(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”*** 1. The elements necessary for orders of review have been extensively set out by the Courts. As the Court of Appeal held in **National Bank of Kenya Limited v Ndungu Njau [1997] eKLR**: ***“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law.”*** 1. The requirements for review are therefore the discovery of a new and important matter that could not have been known at the time the decree or order was issued, a mistake or error apparent on the face of the record, or any other sufficient reason as submitted by the Applicants. In this case, the Applicant contends that the Court of Appeal’s judgment in the **Pauline Chemuge Sugawara Case** (supra) found that the Magistrate’s Court lacks jurisdiction to determine claims of adverse possession. 2. The suit before the Trial Court was instituted by originating summons dated 8th March 2021, by the Respondents herein, claiming adverse possession of a portion of the suit land LR. Konyu/Gakuyu/754, registered in the Appellant’s name. The Trial Court found in favour of the Respondents herein, holding that the 1st and 3rd Plaintiffs are entitled to 0.27 Ha of the suit land, and that the Respondent is entitled to 0.27 Ha as well. This Court upheld this decision on appeal, vide judgment dated 26th July 2024, and dismissed the appeal. 3. The Applicant has relied on the decision of the Learned Judges of the Court of Appeal in the above case of **Sugawara v Kiruti** (supra), which held that: ***“The controversial question of jurisdiction of the Magistrates’ Courts in claims for adverse possession emanated from sections 37 and 38 of the Limitation of Actions Act where it was specifically provided that such claims were to be heard by the High Court. Reference was to the “High Court” as the court to which such cases were heard, and given the dictates of the Constitution, that should be construed to mean the Environment and Land Court, as being the court donated with jurisdiction to hear and determine matters pertaining to adverse possession of land. The effect of that interpretation was that, it was only the Environment and Land Court established under article 162(2)(b) that was mandated to hear those cases. So that, notwithstanding the expansion of the jurisdiction of environment and land usage to Magistrates Courts, it was distinctive that under section 9(a) of the Magistrates Courts Act, various matters were specified for determination, but claims for adverse possession were not included.........*** ***Magistrates’ Courts did not have jurisdiction to determine the claims of adverse possession. The trial court rightly disregarded hearing and determining it.”*** 1. It is now the settled position in law that the Magistrates' Courts do not have jurisdiction to hear and determine matters of adverse possession. The above-mentioned **Sugawara v Kiruti** (Supra) decision was delivered on 11th October, 2024, a few months after this Court's decision. 2. The Respondents contend that the law cannot apply retrospectively, but jurisdiction goes to the root of the matter. In **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR**, it was held that: ***“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law must down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:*** ***“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”*** 1. It has been held that a decision made without jurisdiction is a nullity in law. The Court of Appeal, sitting at Mombasa, in the case of **Diamond Trust Bank Kenya Limited v Mutubia another (Civil Appeal E161 of 2023) 2026KECA1001 (KLR) (29 May 2026) (Judgment)**, quoted with approval the following decision: ***“It is an immutable principle that, if the court lacks jurisdiction over the original suit, the ensuing proceedings are void ab initio, and the court cannot entertain a counterclaim founded thereon because jurisdiction cannot arise from a null proceeding. This follows the well- known principle stated in Macfoy v United Africa Co Ltd ([1961] 3 All ER 1169) where it was held that:*** ***“If an act is void, it is a nullity… there is nothing to stand on.” Thus, where the original action is a nullity for want of jurisdiction, the counterclaim cannot stand independently in that proceeding.”*** 1. Consequently, the judgment of the Trial Court was legally null and void. Nevertheless, as the two conflicting factions persisted before the Environment and Land Court (ELC), the case of **Sugawara v Kiruti** (supra) had not yet been definitively settled to establish that Magistrates lack jurisdiction over adverse possession claims. It cannot amount to fresh discovery or even sufficient grounds for review. This matter cannot serve as a basis for revision but may constitute grounds for an appeal. I cannot revise a colleague's judgment (Olola J), which, at the time, had already affirmed jurisdiction over the matter. 2. Furthermore, the principal decision of the Trial Court, **Karatina ELC 008 of 2021**, dated 22nd June 2022, remains binding having been affirmed by this Court. Therefore, I cannot substitute it with my own decision on review due to lack of jurisdiction. In other words, if a judge was mistaken on a point of law that a Superior Court has since clarified, the appropriate remedy is not review but an appeal. 3. Consequently, the Application is dismissed with costs. **Dated, signed, and delivered virtually at Nyeri on this 6th day of August 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Mr. Wahome for the Appellant** **Respondent (in person)** **Denis - Court Assistant**