[2020] KEELC 20 (KLR)
The court found that since the defendants had filed an originating summons in the Environment and Land Court claiming adverse possession over the same parcel of land, and the parties and subject matter were identical, it was prudent to transfer the lower court file to the Environment and Land Court. The Magistrate's...
Source-derived case information.
- Citation
- [2020] KEELC 20 (KLR)
- Parties
- Respondent: Western Ceramic Industries Limited; Applicant: Phoebe Oranga; Applicant: Judith Akinyi Omondi; Applicant: Micahel Odhiambo Ong’awo; Applicant: David Okumu; Applicant: Okumu Oyola; Applicant: Christopher Oyie; Applicant: Mary Okoth; Applicant: Tom Mboya Awino; Applicant: Chiaga Achola; Applicant: Owino Achola; Applicant: Martha Wandaya; Applicant: Derrick Ogodo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 50 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- application allowed
- Judges
- TM Olando
- Legal Topics
- Adverse Possession, Jurisdiction of Courts, Transfer of Suit, Limitation of Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Western Ceramic Industries Limited
Respondent
Phoebe Oranga
Applicant
Judith Akinyi Omondi
Applicant
Micahel Odhiambo Ong’awo
Applicant
David Okumu
Applicant
Okumu Oyola
Applicant
Christopher Oyie
Applicant
Mary Okoth
Applicant
Tom Mboya Awino
Applicant
Chiaga Achola
Applicant
Owino Achola
Applicant
Martha Wandaya
Applicant
Derrick Ogodo
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the Magistrate's Court has jurisdiction to determine a claim based on adverse possession.
- 2 Whether the suit should be transferred to the Environment and Land Court to avoid conflicting judgments on the same parcel of land.
- 3 Whether the applicants have established grounds for transfer based on their claim of adverse possession.
Ratio Decidendi
The court found that since the defendants had filed an originating summons in the Environment and Land Court claiming adverse possession over the same parcel of land, and the parties and subject matter were identical, it was prudent to transfer the lower court file to the Environment and Land Court. The Magistrate's Court does not have jurisdiction to determine claims of adverse possession, and allowing both matters to proceed separately risked conflicting judgments. Therefore, the application for transfer was allowed to ensure proper jurisdiction and avoid multiplicity of proceedings.
Court Disposition
application allowed
Orders
- Kisumu CMC ELC No. 478 of 2018 is transferred to the Environment and Land Court at Kisumu for hearing and determination.
- Costs in the cause.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC MISCELLANEOUS CIVIL APPLICATION NO. 50 OF 2020
WESTERN CERAMIC INDUSTRIES LIMITED..............PLAINTIFF/RESPONDENT
VERSUS
PHOEBE ORANGA.........................................................1ST DEFENDANT/APPLICANT
JUDITH AKINYI OMONDI..........................................2ND DEFENDANT/APPLICANT
MICAHEL ODHIAMBO ONG’AWO...........................3RD DEFENDANT/APPLICANT
DAVID OKUMU.............................................................4TH DEFENDANT/APPLICANT
OKUMU OYOLA............................................................5TH DEFENDANT/APPLICANT
CHRISTOPHER OYIE....................................................6TH DEFENDANT/APPLICANT
MARY OKOTH................................................................7TH DEFENDANT/APPLICANT
TOM MBOYA AWINO...................................................8TH DEFENDANT/APPLICANT
CHIAGA ACHOLA.........................................................9TH DEFENDANT/APPLICANT
OWINO ACHOLA.........................................................10TH DEFENDANT/APPLICANT
MARTHA WANDAYA..................................................11TH DEFENDANT/APPLICANT
DERRICK OGODO.......................................................12TH DEFENDANT/APPLICANT
RULING
The Defendants/Applicants have come to this court with application dated 9/12/2019 seeking the transfer of Kisumu CMC ELC No. 478 of 2018 to this court for determination. The application is based on facts that the subordinate court does not have jurisdiction to hear this case in view of the counter-claim. That the Applicants have been in occupation of Kisumu Kanyakwar LR 2290 for more than and over 12 years. The Defendants/Applicants claim to have been in possession for over 12 years hence the principles of adverse possession apply.
The Defendant in his reply states that there is no one occupying the suit land. The defendants entered the land in September 2018 and erected a wall but are not in occupation. According to the Plaintiff, it will be unfair to transfer the suit when 5 witnesses have been heard. Moreover, that the defendants have not raised the defence of adverse possession or the fact that the suit is time barred.
I have considered the affidavit on record and rival submissions and do find that since an originating summon no 11 of 2020 has been filed by the defendants claiming adverse possession on the suit land it is prudent that the file in the lower court be transferred to this court to pre-empt two conflicting Judgements on the same parcel of land. The parties are the same and that the subject matter is the same. The Magistrate Court has no jurisdiction to determine a claim based on adverse possession and therefore the Applicants cannot file a claim based on adverse possession in the Magistrate’s Courts. I do allow the application and do order that file No. Kisumu CMC ELC No. 478 of 2018 be transferred to the Environment and Land Court Kisumu for hearing and determination. Costs in the cause.
DATED AND DELIVERED THIS 13th DAY OF MARCH, 2020.
A.O. OMBWAYO
ENVIRONMENT & LAND
JUDGE
In the presence of:
M/S OWIRO FOR APPLICANT
MR BAGADA FOR RESPONDENT