[2015] KEHC 6230 (KLR)
The court held that since the defendant's counterclaim is for adverse possession, which the magistrate's court lacks jurisdiction to determine under Order 37 of the Civil Procedure Rules, it is necessary to transfer the suit to the High Court. This avoids the risk of conflicting judgments and ensures all issues are...
Source-derived case information.
- Citation
- [2015] KEHC 6230 (KLR)
- Parties
- Plaintiff: Zacharia O Ondieki; Defendant: Patrick Kuresoi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 232 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit From Magistrate's Court to High Court
- Outcome
- application allowed
- Judges
- MA Silau
- Legal Topics
- Adverse Possession, Jurisdiction of Courts, Transfer of Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Zacharia O Ondieki
Plaintiff
Patrick Kuresoi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit From Magistrate's Court to High Court
Legal Issues
- 1 Whether the magistrate's court has jurisdiction to determine a counterclaim for adverse possession.
- 2 Whether the suit should be transferred to the High Court for hearing and disposal.
Ratio Decidendi
The court held that since the defendant's counterclaim is for adverse possession, which the magistrate's court lacks jurisdiction to determine under Order 37 of the Civil Procedure Rules, it is necessary to transfer the suit to the High Court. This avoids the risk of conflicting judgments and ensures all issues are determined by a court with proper jurisdiction. The application to transfer the file was therefore merited and allowed.
Court Disposition
application allowed
Orders
- The file Nakuru CMCC No. 363 of 2009 is transferred to the High Court for hearing and disposal.
- No order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
MISC APPLICATION NO 232 OF 2013
ZACHARIA O ONDIEKI …………...........……..………….PLAINTFF
VERSUS
PATRICK KURESOI ……………………............…….DEFENDANT
RULING
(Transfer of suit; suit initiated in the Magistrate's Court; Counterclaim for adverse possession; Magistrate's Court not having jurisdiction on adverse possession; suit ordered transferred to superior court)
The application herein seeks orders to have the suit Nakuru Chief Magistrate's Civil Suit No. 363 of 2009, transferred to this court for hearing and disposal. The main ground upon which the application is founded is that the defendant in the said suit, has a counterclaim by way of adverse possession, which cannot be determined by the magistrate's court for want of jurisdiction. The applicant is plaintiff in the suit Nakuru CMCC No. 363 of 2009. To the application, a copy of the Defence and Counterclaim was annexed.
I have looked at the pleadings in the suit Nakuru CMCC No. 363 of 2009. The suit was commenced by way of plaint on 9 April 2009. The case of the plaintiff is for recovery of the land parcel Nakuru/Ngongongeri/47 which he complains the defendant has illegally taken possession of. The defendant filed a defence which he later amended to include a counterclaim. He has refuted the plaintiff's allegations, and in the counterclaim, he has contended that he is entitled to the suit land by way of adverse possession.
A claim for adverse possession cannot be heard by the subordinate court in line with the provisions of Order 37 of the Civil Procedure Rules. The alternative of course, was for the defendant to file a new suit, but even then, to avoid the possibility of conflicting judgments, the lower court file would need to be called to this court. To avoid a lot of hitches, it is best that the lower court file be brought to this court for all issues to be determined. I therefore find that the application has merit. I order the file Nakuru CMCC No. 363 of 2009 to be transferred to this court for hearing and disposal.
I make no orders as to costs.
It is so ordered.
Dated, signed and delivered in open court at Nakuru this 4th February 2015.
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT AT NAKURU
In presence of :-
Mr Ombui holding brief for Mrs Ndeda for applicant.
Mrs C M Kirui for the respondent
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURTNAKURU