[2024] KEELC 14045 (KLR)
The court held that the Magistrates Court lacked jurisdiction to hear and determine claims for adverse possession, as such jurisdiction is not conferred by statute. The decree issued by the Lower Court on the basis of a counterclaim for adverse possession was therefore a nullity. The appeal was allowed, and the...
Source-derived case information.
- Citation
- [2024] KEELC 14045 (KLR)
- Parties
- Appellant: Noorher Mohamed; Appellant: Hadua Nanzala Rashid; Appellant: Fatuma Maruti Rashid; Respondent: Joel Kazungu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E017 of 2023
- Procedural Posture
- Environment and Land Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- EK Makori
- Legal Topics
- Adverse Possession, Jurisdiction of Magistrates Court, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Noorher Mohamed
Appellant
Hadua Nanzala Rashid
Appellant
Fatuma Maruti Rashid
Appellant
Joel Kazungu
Respondent
Procedural Posture
Environment and Land Appeal / Judgment
Legal Issues
- 1 Whether the Magistrates Court has jurisdiction to hear and determine claims of adverse possession.
- 2 Whether the decree issued by the Lower Court based on a counterclaim for adverse possession was valid.
Ratio Decidendi
The court held that the Magistrates Court lacked jurisdiction to hear and determine claims for adverse possession, as such jurisdiction is not conferred by statute. The decree issued by the Lower Court on the basis of a counterclaim for adverse possession was therefore a nullity. The appeal was allowed, and the orders of the Lower Court were set aside. The court declined to award costs to either party, citing the inconsistent jurisprudence from the Environment and Land Court on the issue of jurisdiction in adverse possession matters.
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- The decree and orders of the Lower Court are set aside.
Full Case Text
Judgment text and source record
25 paragraphs
Mohamed & 2 others (Suing as Administrator of the Estate of Peter Rashid Abdallah Mboty) v Kazungu (Environment and Land Appeal E017 of 2023) [2024] KEELC 14045 (KLR) (12 December 2024) (Judgment)
Neutral citation: [2024] KEELC 14045 (KLR)
Republic of Kenya
In the Environment and Land Court at Malindi
Environment and Land Appeal E017 of 2023
EK Makori, J
December 12, 2024
Between
Noorher Mohamed
1st Appellant
Hadua Nanzala Rashid
2nd Appellant
Fatuma Maruti Rashid
3rd Appellant
Suing as Administrator of the Estate of Peter Rashid Abdallah Mboty
and
Joel Kazungu
Respondent
(Being An Appeal Under Section 65 1(b) Of The Civil Procedure Act Cap 21 Laws Of Kenya And Order 42 Rule 1 (1) Of The Civil Procedure Rules 2010 From The Judgment And Order Of Hon. James Ongondo, Malindi Delivered On 5Th April, 2023 In Malindi Mcel No. 21 Of 2018)
Judgment
1. The Court of Appeal has recently provided guidance on whether the Magistrates Court has jurisdiction to hear adverse possession claims. It is reported in Sugawa V Kinuti & 3 Others (2024) KECA 1417 KLR.
2. The Court of Appeal revered several decisions from the ELC for and against the litigants handling adverse possession matters. The Court of Appeal considered;
3. …the appeal arises from a mixed grill claim- with a Counterclaim being under adverse possession and which was the basis of the decree from the Lower Court.
4. The Court had no jurisdiction. The appeal succeeds with no order as to costs here and in the Lower Court in view of the confusing jurisprudence that has been emanating from the ELC itself.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 12THDAY OF DECEMBER, 2024. E. K. MAKORIJUDGEIn the Presence of:Mr. Achieng for the AppellantAbdrashid: Court AssistantIn the Absence ofMr. Komora for the …