[2023] KEELC 20851 (KLR)

Parkire v Philip (Environment and Land Miscellaneous Application E42 of 2022) [2023] KEELC 20851 (KLR) (19 October 2023) (Ruling)

Neutral citation: [2023] KEELC 20851 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Environment and Land Miscellaneous Application E42 of 2022

LA Omollo, J

October 19, 2023

Between

Ripo Ole Parkire

Applicant

and

Margaret Kanini Philip

Respondent

Ruling

1. This ruling is in respect of the Applicant’s Notice of Motion Application dated 19th October, 2022 which is expressed to be brought under Section 1A, 1B, 3A and 18 of the Civil Procedure Act Cap 21 Laws of Kenya, Rule 51 rule 1 of the Civil Procedure Rules 2010, Section 13 of the Environment and Land Court Act 2011, Section 38 (1) of the Limitation of Actions Act, 2012 and all enabling provisions of the law.

2. The Application seeks the following orders:a.Spentb.That this honourable court be pleased to stay further proceedings in Naivasha Chief Magistrates ELC suit no E076 of 2021 pending the hearing and determination of this application.c.That this honourable court be pleased to transfer Naivasha Chief Magistrates ELC suit no E076 of 2021 from the Naivasha Chief Magistrate’s Court to this court for trial and disposal by a court of competent jurisdiction. (sic)d.That the cost of this Application be provided for.

3. The Application is based on the grounds on its face and supported by the affidavit sworn on 19th October, 2022 by one Mogire Robert Kennedy, an advocate of the Applicant.

Factual Background 4. The application first came up for hearing on 25th October, 2022 and was dismissed for want of prosecution on 10th November, 2022.

5. On 20th February, 2023, a consent was recorded to reinstate the application. The court then gave directions that the application shall be heard by way of written submissions.

6. On 19th April, 2023 parties confirmed having filed submissions and the application was reserved for ruling.

DIVISION - The Applicant’s Contention. 7. The Applicant states that the Respondent herein filed a suit vide a Plaint dated 15th October, 2021 being Naivasha Chief Magistrates ELC suit no E076 of 2021. Margaret Kanini Philip Vs Ripo Ole Parkire where she sought several reliefs against the Applicant herein.

8. The Applicant further states that on 14th May ,2022, tApplicant herein filed his Statement of Defence and Counterclaim where he sought among others “A declaration that the Defendant is the beneficial owner of all that parcel of land known as Plot number 692/693 Moi Ndabi settlement scheme, now Naivasha/ Moi Ndabi/407 and in the alternative, a declaration that the Plaintiff’s title to all parcel of land known as plot number 692/693 Moi Ndabi settlement scheme, now Naivasha/ Moi Ndabi/407 has been extinguished by operation of sections 7, 13 and 17 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya and that the Defendant has acquired it by adverse possession.

9. The Applicant states that the suit i.e. Naivasha Chief Magistrates ELC suit no E076 of 2021. Margaret Kanini Philip Vs Ripo Ole Parkire has been fixed for hearing on 30th January, 2022.

10. The Applicant contends that the Defendant’s Statement of Defence and Counterclaim included a claim for adverse possession and that the Subordinate Court is not vested with powers to entertain such a claim.

11. The Applicant contends that the Subordinate Court has no jurisdiction to entertain claims for adverse possession over land and thus it is only fair that the matter be transferred to the Environment and Land Court at Nakuru for hearing and determination.

12. The Applicant contends that under section 38 of theLimitation of Actions Act, Chapter 22 of the Laws of Kenya, it provides that claims of the nature of adverse possession should be filed before High Court which in this instance is the Environment and Land Court.

13. The Applicant contends that the matter should be triedby a court of competent jurisdiction in order to avoid miscarriage of justice and that the Respondent will not be prejudiced in any manner if the orders sought are granted.

14. The Applicant ends by stating that it is in the interest of justice that the suit be transferred from the Chief Magistrate’s Court to the Environment and Land Court in order to avoid miscarriage of justice.

Respondent’s Response. 15. The Respondent filed her Replying Affidavit dated 3rd November, 2022.

16. The Respondent deposes that she is surprised that the Applicant has opted to let his counsel to depone to matters that essentially are a mixture of fact and law, and she is advised by her advocates that such matters should be deponed to by parties.

17. The Respondent also deposes that the Applicant’s defence and counterclaim in the case in Naivasha ELC E076 of 2021; Margaret Kanini Philip v Ripo Ole Parkire is dated 27th January, 2022. She deposes that a reply to defence and defence to counterclaim was filed and were it not for the unavailability of the Applicant’s lawyers on some of dates given by the court, a hearing would have already taken place as pleadings were long closed. She deposes that in actual fact, the matter is coming up for full hearing on 30th November, 2022. An extract of the online case status is attached.

18. The Respondent deposes that she is not aware of the proceedings of 30th January, 2023.

19. The Respondent also deposes that she is confident that the Honourable Court can see through the mischief being canvassed through the application where the Applicant participates in all aspects of the case until a hearing date is set only to purport to “discover” the court handling the matter has no jurisdiction.

20. The Respondent deposes that the mischievous attempt to cling on claims of adverse possession cannot hold. She deposes that she obtained her title deed on 6th July, 2016 and her title remains valid, unencumbered and disputes claims of ownership allegedly obtained by the Applicant in 1994. She attached the copy of the title.

21. It is the Respondent’s deposition that she has been in physical possession of her parcel of land and approached the court for the first time, in the year 2021 when she noticed the Applicant trespassing upon her parcel of land.

22. The Respondent further deposes that the Applicant has avoided telling the court that he is an accused person over the acts of trespass, in Naivasha Criminal Case no E242/2020 is coming up for hearing on 23rd January, 2023. She has attached the charge sheet and an extract of the position of the case as obtained online.

23. The Respondent deposes that there is nothing that has previously stopped the applicant from filing his substantial suit in the High court (ELC) yet he has had knowledge of the existence of the title deed in her favour.

24. The Respondent also deposes that looking at the substantive prayers in the defence and counterclaim, it is clear at paragraph 15 that jurisdiction of the Court was expressly admitted by the defendant and that the prayers sought in the counterclaim show a party that was comfortable with seeking orders from the court that he is now seeking to distance himself from.

25. The Respondent deposes that immediately the Applicant was served he should have filed this application.

26. The Respondent deposes that the only notice issued by the Applicant was a notice of intention to raise a preliminary objection. She deposes that the Applicant at paragraph 11 of his statement of defence claimed that her suit was time barred. She states that this is the point at which the objection on jurisdiction should have been raised.

27. The Respondent deposes that it is less than candid for the Applicant to state that she is not going to suffer any prejudice if the suit in the lower court is transferred and states that she opposes vehemently any prayer whose effect is to interfere with the speedy resolution of the matter already slated for hearing with consent of both lawyers in order to accommodate a party on a fishing expedition for reliefs from different causes of action and different courts.

Submissions. 28. The Applicant filed his submissions on 13th March, 2023 while the Respondent filed her submissions on 22nd March, 2023.

29. The Applicant submits that on 14th May, 2022, the Applicant filed his Statement of Defence and Counterclaim where he sought among others, “A declaration that the Defendant is the beneficial owner of all that parcel of land known as Plot number 692/693 Moi Ndabi settlement scheme, now Naivasha/ Moi Ndabi/407 and in the alternative, a declaration that the Plaintiff’s title to all parcel of land known as plot number 692/693 Moi Ndabi settlement scheme, now Naivasha/ Moi Ndabi/407 has been extinguished by operation of sections 7, 13 and 17 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya and that the Defendant has acquired it by adverse possession.”

30. The Applicant submits that based on the statement of defence and counterclaim, the Subordinate Court does not have jurisdiction to hear and determine the matter. He also submits that the Applicant is desirous of having the matter transferred to this court for trial and disposal.

31. It is the Applicant’s submission that he stands by his averment that the Chief Magistrates court has no jurisdiction to entertain claims for adverse possession over land and thus it is only fair that the matter be transferred to the Environment and Land Court at Nakuru for hearing and determination. He submits that under section 38 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya, claims of adverse possession should be filed before the High Court which in this instance it is the Environment and Land Court.

32. The Applicant submits that he obtained his title deed on 6th July, 2016 and that the title remains valid, unencumbered and disputes claims of ownership allegedly obtained by the Applicant in 1994 or any such date.

33. The Applicant submits that he has had physical possession of the suit parcel and approached the court for the first time when he noticed the Applicant was trespassing on the suit property in the year 2021.

34. He submits that looking at the substantive prayers in the defence and counterclaim, the Respondent claims that the jurisdiction of the court was expressly admitted and that the prayers sought in the counterclaim show a party that had no reservations in seeking orders from the subordinate court that he is now seeks to distance himself from.

35. The Applicant identifies the following issues for determination before this court:i.Whether this court has powers to transfer and handle Naivasha Chief Magistrates ELC suit no E076 of 2021 from the Naivasha Chief Magistrate’s Court?ii.Who should bear the costs of the application?

36. The Applicant relies on Section 18 of the Civil Procedure Act and Section 19 of the Environment and Land Court Act, 2011 and submits that the Environment and Land Court is a superior court of record which has the same status as the High Court hence it has the powers to withdraw and transfer a matter to a competent court.

37. The Applicant also relies on Section 13 of the Environment and Land Court Act and Section 38 of the Limitation of Actions Act of Actions Act, Chapter 22 Laws of Kenya.

38. The Applicant further relies on the judicial decision of Owners of the Motor Vessel “Lillian S” Vs Caltex Oil (Kenya) Ltd (1989). The Applicant submits that the Respondent filed her plaint in the Magistrate’s court seeking various reliefs as stated in her plaint, which reliefs were within the jurisdiction of the Chief Magistrates’ court. He submits that on 14th May, 2022, he filed his Statement of Defence and Counterclaim where he sought among others “A declaration that the Defendant is the beneficial owner of all that parcel of land known as Plot number 692/693 Moi Ndabi settlement scheme, now Naivasha/Moi Ndabi/407 and in the alternative, a declaration that the Plaintiff’s title to all parcel of land known as plot number 692/693 Moi Ndabi settlement scheme, now Naivasha/Moi Ndabi/407 has been extinguished by operation of sections 7, 13 and 17 of the Limitation of Actions Act, Chapter 22 Laws of Kenya and that the Defendant has acquired it by adverse possession.”

39. The Applicant submits that Section 38 of the Limitation of Actions Act provides that claims for adverse possession are to be made to the High Court and in this instance the Environment and Land Court, a court of equal status with the High Court. He submits that following the said claim for adverse possession, the Magistrate’s Court does not have jurisdiction to determine a claim of adverse possession. He submits that the introduction of a claim for adverse possession divested the Magistrates’ Court’s of jurisdiction from hearing and determining the suit.

40. The Applicant relies on Section 26 (3) and (4) of the Environment and Land Court Act 2011 and submits that there is no notice or judicial directions from the Chief justice directing the Magistrates’ Courts to handle claims of adverse possession. He submits that initially claims for adverse possession were filed and heard by the high court and with the enactment of the Environment and Land Court Act, 2011, such claims are to be filed in the Environment and Land Court.

41. The Applicant also submits that there is no law that has been enacted by parliament empowering the Magistrates Courts to handle claims of adverse possession.

42. The Applicant submits that the Magistrates’ Courts Act 2015 conferred the Magistrate’s Court with jurisdiction over land matters subject to pecuniary limits by virtue of section 26 of the Environment and Land court. He also submits that claims for adverse possession are not among the powers granted to the Magistrates’ Courts and it is therefore proper and for the avoidance any embarrassment that the suit in the subordinate court be transferred to this Honourable Court.

43. The Applicant submits that despite the suit land being under the pecuniary limit of the Magistrates’ Court, the claim made by him for adverse possession cannot be sustained by it as it lacks the jurisdiction to entertain claims for adverse possession.

44. On the issue of costs, the Applicant submits that the law on costs is well settled i.e. that costs follow events. He relies on the judicial decision of Jasbir Singh Rai & 3 others Vs Tarlochan Singh Rai & 4 others [2014] eKLR.

45. The Applicant ends by praying that his application be allowed with costs.

46. The Respondent in her submissions gives a background of the application and facts deposed.

47. The Respondent submits that from perusing the affidavit and submissions of the Applicant, it is clear that the Applicant is being mischievous. The Respondent submits that they are alive to the position taken on the issue of jurisdiction both in law, and case law.

48. The Respondent further submits that she approached the Subordinate Court as the Plaintiff under a Certificate of Urgency on 15th October, 2021. It is her submission that the Defendant (Applicant herein) filed a statement of defence and counterclaim on 11th May, 2022 after more than 6 months of excuses and accommodation from her.

49. She submits that even with the delay and her accommodating him, the Applicant filed its defence which at paragraph 10 stated, and the Respondent quotes; “The Defendant admits the contents of paragraph 10 and 11 of the plaint.” She explains that paragraph 10 states that “There is no other suit pending in any Court between the parties herein.” While Paragraph 11 is that “The court has jurisdiction to determine this suit.”

50. The Respondent submits that parties are bound by their pleadings and that the Applicant having been represented by the same firm of advocates throughout, cannot claim that the Subordinate Court lacks jurisdiction.

51. The Respondent submits that at the time of filing his statement of defence, the objection was as to limitation of time and not jurisdiction.

52. The Respondent invites the court to read paragraph 13 and 15 of the Applicants defence and counterclaim. Paragraph 13 is as follows ;“The Defendant avers that in the alternative and without prejudice to this bonafide claim to the suit property, having been in occupation since 1994 the Plaintiff’s title has been extinguished in his favor by operations of section 7, 13 and 17 of the Limitations of Action Act, Chapter 22 of the Laws of Kenya and that he has acquired title to it by adverse possession, in the alternative and order compelling the Plaintiff to transfer all the parcel of land known as plot number 692/693 Moi Ndabi Settlement Scheme, now Naivasha/Moi Ndabi/407 to him forthwith, a permanent injunction restraining the Plaintiff whether by herself, her employees, servants, agents, or otherwise howsoever from entering, occupying, charging, carrying on any development, or dealing with all the parcel of land known as plot number 692/693 Moi Ndabi Settlement Scheme, now Naivasha/Moi Ndabi/407 in any manner prejudicial to the interests of the Defendant.”

53. Paragraph 15 of the counterclaim is as follows; “The cause of action arose within Nakuru County within the jurisdiction of the Honourable Court.”

54. The Respondent submits that on account on these two paragraphs in the defence and counterclaim of the Applicant, the instant application must fail.

55. The Respondent submits that the instant application is a perfect example of what abuse of the court process looks like. The Respondent submits and questions the if the defence as filed in the subordinate court acknowledges jurisdiction and the Applicant in the instant applicationstates that the subordinate court lacks jurisdiction, then there is no counterclaim capable of being transferred to this court.

56. The Respondent submits that the cause of action was set out in the counterclaim by the Applicant and that the Applicant is merely having second thoughts about the viability of his claim and that he should be brave and withdraw his claim and prefer a fresh one.

57. The Respondent invites the court to recognize that pleadings in the lower court closed and the matter has been given hearing dates on more than one occasion. She submits that parties had taken to pre-trial directions and the question of jurisdiction was never raised.

58. The Respondent submits that the issue for determination is not just whether this court has powers to transfer and handle the suit filed in the subordinate court but whether there is a competent suit to be transferred.

59. The Respondent submits that it should be noted that the plaint is filed in a court with jurisdiction and that she is not making any application for transfer of her suit. She submits that this is a case of a Defendant with incompetent pleadings seeking to transfer a suit and competent pleadings of another party.

60. She further submits that if a party filed pleadings in a court without jurisdiction, there is nothing to transfer. She submits that in this case, the Applicant filed a counterclaim that seeks to introduce a Cause of action on adverse possession in the subordinate court, something that had nothing to do with her suit and should therefore not be allowed.

61. The Respondent relies on Civil Appeal No 244 of 2010 in Phoenix of E.A assurance Co. Ltd vs S.M Thiga T.A newspaper service.

62. The Respondent also relies on C.A no 11 of 2016 in County Government of Kilifi Vs Mombasa Cement Limited and submits that if the Applicant through his application is standing by his counterclaim that has introduced adverse possession and he is saying the lower court has no jurisdiction, then he has no defence either. She submits that he cannot transfer the only surviving cause of action of the plaintiff who has not objected to the jurisdiction of the subordinate court.

63. The Respondent submits that costs follow the event and she prays that the application be dismissed with costs to her.

Analysis and Determination. 64. This court has perused the application and submissions and is of the view that the issues for determination are:a.Whether a statement in pleadings that a court has jurisdiction confers jurisdiction on that courtb.By whom and at what stage can the question of jurisdiction be raised?c.Whether this court has powers to transfer and determine the suit filed in the Naivasha Chief Magistrate’s Court as ELC No. E076 of 2021. d.Who should bear the costs of the application?

A & B. Whether a statement in pleadings that a court has jurisdiction confers jurisdiction on that court and by whom and at what stage can the question of jurisdiction be raised? 65. I have thought it necessary to address issue (a) and (b) together considering that they were an integral part of the Respondent’s submissions.

66. Jurisdiction is conferred either by the Constitution or Statute or judicial precedent. Parties even if they consent that a court proceeds with a matter, will never be able to clothe a court with jurisdiction if it is lacking. The Supreme court in the matter of Interim Independent Electoral Commission- 2011 eKLR held as follows;“Assumption of jurisdiction by courts in Kenya is a subject regulated by the constitution, by statute law, and by principles laid out in judicial precedent…”

67. In Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd [1989] eKLR, the Court of Appeal had the following to say on jurisdiction;“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 downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”(Emphasis mine)

68. It follows that jurisdiction can be raised at any stage of the proceedings though it is best raised at the earliest opportunity. It can also be raised by any party. This was the finding in National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others (Civil Appeal 656 of 2022) [2023] KECA 80 (KLR) (3 February 2023) (Judgment) it was stated,“We start our determination by stressing that jurisdiction is a threshold matter which goes to the competence of the court to hear and determine a suit. Jurisdiction can be raised at any stage of the proceedings in the High Court, on appeal and even in the Supreme Court for the first time. It can be raised by any of the parties or by the court, and once raised the court would do well to examine it and render a considered ruling on it. (Emphasis mine)

C. Whether this court has powers to transfer and determine the suit filed in the Naivasha Chief Magistrate’s Court as ELC No. E076 of 2021. 69. In the judicial decision of Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & another [2020] eKLR, it was held that;“The upshot of the provisions at Section 26 (3) and (4) of the Environment and Land Court Act, 2011 and Section 9 (a) of the Magistrates’ Courts Act, 2015 is that Magistrates who are duly gazetted and have the requisite pecuniary jurisdiction have jurisdiction and power to handle cases involving occupation of and title to land. Claims in the nature of adverse possession involve title to land since the claimant ultimately seeks an order that he be registered as the proprietor of the land. …In view of the foregoing discourse, there are ample reasons based on the express provisions of Section 26 (3) and (4) of the Environment and Land Court Act, 2011 and Section 9 (a) of the Magistrates’ Courts Act, 2015, the principles of interpretation of the constitution as well as the principles of the constitution such as devolution, access to services and access to justice for all persons, to find as I hereby do, that so long as presided over by a Magistrate who is duly gazetted under Section 26 (3) of the Environment and Land Court Act, 2011 and who has the requisite pecuniary jurisdiction, Magistrates’ courts have jurisdiction and power to handle cases involving claims of adverse possession.” (Emphasis mine)

70. Section 9(a) of the Magistrate’s Court Act confers jurisdiction upon the Magistrate’s Court. It provides as follows;“A Magistrate’s court shall -a.in the exercise of the jurisdiction conferred upon it by section 26 of the Environment and Land Court Act (Cap. 12A) and subject to the pecuniary limits under section 7(1), hear and determine claims relating to -SUBPARA (i)environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(ii)compulsory acquisition of land;(iii)land administration and management;(iv)public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(v)environment and land generally”.

71. Section 26 of the Environment & Land Act provides;(3)The Chief Justice may, by notice in the Gazette, appoint certain Magistrates to preside over cases involving environment and land matters of any area of the country.(4)Subject to Article 169(2) of the Constitution, the Magistrate appointed under sub-section (3) shall have jurisdiction and power to handlea.disputes relating to offences defined in any Act of Parliament dealing with environment and land; andb.Matters of civil nature involving occupation, title to land, provided that the value of the subject matter does not exceed the pecuniary jurisdiction as set out in the Magistrates' Courts Act.(5)Appeals on matters from the designated Magistrate's Courts shall lie with the Environment and Land Court”.

72. My view is that Magistrate’s Courts have jurisdiction to hear and determine claims for adverse possession. The only caveat on this jurisdiction is that:a.The Magistrate ought to be gazettedb.The Magistrate must take into account the pecuniary limits set out in the Magistrate’s Court Act.

73. The Applicant submits that the Magistrate’s Court Act 2015 that confers the Magistrate’s Court with jurisdiction over land matters subject to pecuniary limits by virtue of section 26 of the Environment and land court and that claims for adverse possession are not among those listed in that section. I am not persuaded by this reasoning.

74. The judicial decision of Patrick Ndegwa Munyua Vs Benjamin Kiiru Mwangi & another [2020] eKLR offers useful insights. The learned Judge interrogated the issue by asking and answering as follows;“Can adverse possession claims be said to be complex and requiring the attention of this court as opposed toMagistrates’ Courts? Certainly not. Even if they were complicated, the subordinate courts already handle much more complicated matters. Adverse possession claims are commenced by originating summons, a procedure reserved for simple and uncomplicated matters. The court of Appeal restated as much in AHAD v CJE [2019] eKLR:…it It is however established that the procedure of originating summons is not intended for complex matters or matters where facts are contested. As stated by the Court in Kenya Commercial Bank Ltd v Osebe (above):“The procedure of originating summons is intended for simple matters and enables the court to settle them without the expense of bringing an action. The procedure is not intended for determination of matters that involve serious questions. The procedure should not be used for the purpose of determining disputed questions of fact. The procedure of originating summons is designed for the summary or ad hoc determination of points of law, construction or certain specific facts for obtaining of specific directions of the court such as trustees, administrators or the courts execution officers”.

75. The law on what needs to be proved to uphold a claim of adverse possession is well settled. The Applicant must prove that he has been in exclusive possession of the landopenly, as of right without interruption for a period of twelve years either after dispossessing the owner or by discontinuation of possession by the owner of his own volition.

76. I doubt that these issues are of such evidentiary complexity as making Magistrates incapable of determining them. Magistrates have training in law, have been subject of a rigorous interviewing process, have been found to be competent and appointed to serve in those esteemed positions. They also carry with them years of experience.

D. Who should bear the costs of the application?** 77. The general rule is that costs follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act. (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise.

Disposition. 78. In the result, I find that the Application dated 19th October, 2022 lacks merit and is dismissed with costs.

79. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 19th DAY OF OCTOBER, 2023. L. A. OMOLLOJUDGEIn the presence of:Mr. Mogire for the Applicant.Mr. Gachiengo for the Respondent.Court Assistant: Monica Wanjohi.