[2018] KEELC 4111 (KLR)
The court held that the claim, being one of title to land by way of adverse possession, falls squarely within the jurisdiction of the Environment and Land Court as provided by Article 162(2)(b) of the Constitution and Section 38 of the Limitation of Actions Act. The Magistrate’s Court does not have jurisdiction to...
Source-derived case information.
- Citation
- [2018] KEELC 4111 (KLR)
- Parties
- Applicant: Stephen Oketch Oracha; Respondent: Omar Feisal Mohammed Jama
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 312 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Application to Transfer Suit to Magistrate's Court
- Outcome
- application dismissed
- Judges
- GMA Ongondo
- Legal Topics
- Jurisdiction of Courts, Adverse Possession, Transfer of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Oketch Oracha
Applicant
Omar Feisal Mohammed Jama
Respondent
Procedural Posture
Notice of Motion / Ruling on Application to Transfer Suit to Magistrate's Court
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to hear and determine the suit based on adverse possession.
- 2 Whether the suit should be transferred to the Magistrate's Court at Migori as requested by the applicant.
Ratio Decidendi
The court held that the claim, being one of title to land by way of adverse possession, falls squarely within the jurisdiction of the Environment and Land Court as provided by Article 162(2)(b) of the Constitution and Section 38 of the Limitation of Actions Act. The Magistrate’s Court does not have jurisdiction to hear and determine such matters. The application to transfer the suit to the Magistrate’s Court at Migori was therefore unmerited and was disallowed. The court further directed that the originating summons and replying affidavit be treated as the plaint and statement of defence, respectively, and set the matter down for pre-trial directions.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 11/5/2016 is disallowed.
- No orders as to costs.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT
AT MIGORI
ELC CASE NO. 312 OF 2017
(Formerly ELC Kisii case No. 336 of 2014)
STEPHEN OKETCH ORACHA.....................PLAINTIFF/APPLICANT
VERSUS
OMAR FEISAL MOHAMMED JAMA...DEFENDANT/RESPONDENT
RULING
1. A Notice of motion dated 11/5/2016 is for directions and or hearing today. The plaintiff/applicant seeks the following orders;-
a) That this Honourable court be pleased to transfer this suit to the Magistrate’s court at Migori
b) That the costs of this application be provided for.
2. I note grounds of the Notice of motion and supporting affidavit sworn on 11/5/2016, by the applicant. These grounds are that :-
1) The Magistrate’s Court at Migori has both the Pecuniary and Territorial Jurisdiction to hear and determine this suit.
2) All parties reside in Migori within the local limits of the magistrate’s court at Migori.
3) The land and subject matter is also situated in Migori within the jurisdiction of the magistrate’s court at Migori.
4) The magistrate’s court at Migori provides the most comfortable and convenient venue to hear and determine this suit.
5) Orders sought herein will not prejudice any party.
6) It is in interest of justice and fairness that orders sought herein be granted.
3. I have perused the Notice of Motion , heard Ms. Mireri counsel for the applicant and Mr. Nyagesoa counsel for the respondent. Are the orders sought in the Notice of motion merited ?
4. It is important to note that a court’s jurisdiction flows from either the constitution or legislation or both; see Samwel Kamau Macharia & anor Vs. KCB & 2 others (2012 e KLR and Abdallah Vs. Building Centre (K) LTD & 4 others (2014) KLR –SCK.
5. Under Section 38 (1),(2) and (4) of the Limitation of Actions Act (Cap 22 of Laws of Kenya), Originating Summons matters as envisaged therein shall be heard by the High Court The claim is on title to land by way of adverse possession and by Article 162 (2) (b) Constitution, 2010, it falls within the jurisdiction of the Environment and Land Court See R- V- Karisa Chengo & 2 others (2017) e KLR.
6. I accordingly find the Notice of Motion unmerited and I disallow it.
7. No orders as to costs.
8. Directions are taken that the originating summons dated 22/8/14 and the replying affidavit sworn on 5/11/2014 be treated as plaint and statement of defence respectively.
9. Mention on 20/3/2018 for pre- trial directions.
10. Parties to ensure full compliance with Order 11 Civil Procedure Rules 2010 on or before 20/3/2018.
DELIVERED, SIGNED and DATED in open court at MIGORI this 29th day of January 2018.
G. M. A. ONGONDO
JUDGE
In the presence of:
Mr. Mireri counsel for the Applicant
Mr. Nyagesoa counsel for the Respondent
Tom Maurice -Court assistant
G. M. A. ONGONDO
JUDGE