[2019] KEELC 1262 (KLR)
The court found that the Principal Magistrate’s Court at Kapenguria did not have jurisdiction to entertain the suit 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 Environment and Land Court. Since the original court...
Source-derived case information.
- Citation
- [2019] KEELC 1262 (KLR)
- Parties
- Plaintiff: Waiganjo Njuguna; Defendant: Jackson Karioki Njoroge
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Miscellaneous Case 21 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Motion to Transfer Suit
- Outcome
- application dismissed
- 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
Waiganjo Njuguna
Plaintiff
Jackson Karioki Njoroge
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Motion to Transfer Suit
Legal Issues
- 1 Whether the Principal Magistrate’s Court at Kapenguria had jurisdiction to hear and determine the suit on adverse possession.
- 2 Whether the Environment and Land Court at Kitale can order the transfer of Originating Summons No. 8 of 2018 from a court lacking jurisdiction.
- 3 Whether the application for transfer is competent in law.
Ratio Decidendi
The court found that the Principal Magistrate’s Court at Kapenguria did not have jurisdiction to entertain the suit 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 Environment and Land Court. Since the original court lacked jurisdiction, the Environment and Land Court at Kitale could not order a transfer of the suit. The application for transfer was therefore incompetent and was dismissed with costs.
Court Disposition
application dismissed
Orders
- The notice of motion dated 13/8/2019 is dismissed with costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
ELC MISC. CIVIL APPL. NO. 21 OF 2019
WAIGANJO NJUGUNA.........................PLAINTIFF
VERSUS
JACKSON KARIOKI NJOROGE.......DEFENDANT
RULING
1. The applicant filed a motion dated 13/8/2019 seeking that the Originating Summons No. 8 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. 8 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 sworn by 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 7 of 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 300 in1984. 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. 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, signedanddeliveredatKitaleon this 28thday of October, 2019.
MWANGI NJOROGE
JUDGE
28/10/2019
Coram:
Before - Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Nyakundi holding brief for Chebet for plaintiff
N/A for respondent
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
28/10/2019