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ELCDismissedNot stated in judgment (Originating Summons dated 22/8/2014)· [2018] KEELC 4111 (KLR)

Stephen Oketch Oracha v Omar Feisal Mohammed Jama [2018] KEELC 4111 (KLR)

Environment and Land Court
29 January 2018
GOG. M. A. Ongondo
436 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that adverse possession land claims must stay in that court and cannot be transferred to a magistrate's court.

What this practically means

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Executive summary

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The plaintiff/applicant moved the court by Notice of Motion dated 11 May 2016 seeking transfer of the suit to the Magistrate's Court at Migori on the grounds that that court had pecuniary and territorial jurisdiction, all parties resided in Migori, the subject land was situated in Migori, and it offered the most convenient venue without prejudicing any party. Both counsel for the applicant (Ms. Mireri) and the respondent (Mr. Nyagesoa) were heard. The court framed a single question: whether the orders sought were merited. It held that jurisdiction flows from the constitution or legislation, citing Samwel Kamau Macharia v KCB and Abdallah v Building Centre (K) Ltd. Relying on Section 38(1),(2) and (4) of the Limitation of Actions Act, the court noted that originating summons matters on adverse possession are heard by the High Court, and that by Article 162(2)(b) of the Constitution a claim on title to land by adverse possession falls within the jurisdiction of the Environment and Land Court, as confirmed in R v Karisa Chengo. The motion was therefore found unmerited and disallowed, with no orders as to costs. Directions were taken that the originating summons dated 22/8/2014 and the replying affidavit sworn 5/11/2014 be treated as plaint and statement of defence respectively, with mention on 20 March 2018 for pre-trial directions and compliance with Order 11 of the Civil Procedure Rules. The application was dismissed in its entirety.

Key legal issues

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Whether the magistrate's court at Migori has jurisdiction to determine a claim for title to land by adverse possession

Holding

The application for transfer was unmerited because such claims fall within the jurisdiction of the Environment and Land Court

Reasoning

The court reasoned that jurisdiction derives from the constitution or legislation. Under Section 38(1),(2) and (4) of the Limitation of Actions Act, originating summons matters on adverse possession are heard by the High Court, and by Article 162(2)(b) of the Constitution such land-title claims fall to the Environment and Land Court. Transfer to the magistrate's court was therefore not competent.

p. 1

Legal principles established

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  • A court's jurisdiction flows from either the constitution or legislation or both
  • Claims on title to land by way of adverse possession fall within the jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution

Court orders

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  1. 1.Notice of Motion dated 11/5/2016 disallowed
  2. 2.No orders as to costs
  3. 3.Originating summons dated 22/8/14 and replying affidavit sworn on 5/11/2014 to be treated as plaint and statement of defence respectively
  4. 4.Mention on 20/3/2018 for pre-trial directions
  5. 5.Parties to ensure full compliance with Order 11 Civil Procedure Rules 2010 on or before 20/3/2018

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22, Laws of Kenya)Section 38(1),(2) and (4)
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Civil Procedure Rules 2010Order 11

Cases cited (3)

  • Samwel Kamau Macharia & anor Vs. KCB & 2 others
    (2012) eKLR
  • Abdallah Vs. Building Centre (K) LTD & 4 others
    (2014) KLR – SCK
  • R- V- Karisa Chengo & 2 others
    (2017) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution, 2010; Section 38 of the Limitation of Actions Act (Cap 22)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Stephen Oketch Oracha v Omar Feisal Mohammed Jama [2018] KEELC 4111 (KLR)", Case Analysis (2018). Not stated in judgment (Originating Summons dated 22/8/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4111/eng@2018-01-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.