Jesee Njoroge Gitau v Kibuthu Macharia & another [2019] KEELC 4559 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed only it and the High Court can decide adverse possession land claims, and dismissed the defendants' objection with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the pendency of Nyahururu PMCC No. 144 of 2008 (CM ELC No. 21 of 2018) renders the present suit sub judice and warrants striking out
No. The magistrate's court cannot entertain adverse possession claims, so the present suit cannot proceed there; instead the magistrate's court suit was stayed pending determination of this suit
The court compared the pleadings and found the subject matter substantially similar, being parcel Nyandarua/Kipipiri/486, and parties virtually the same. However, section 6 of the Civil Procedure Act presupposes a court with jurisdiction to grant the relief claimed. Since adverse possession claims lie only before the ELC/High Court under sections 37 and 38 of the Limitation of Actions Act and Order 37 Rule 7, the magistrate's court suit was stayed to avoid contradictory findings.
Whether the Preliminary Objection met the Mukisa Biscuits threshold
The objection was dismissed; though framed as a point of law, it failed on the substance since the relief sought could not be granted by the magistrate's court
Applying Mukisa Biscuits, a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded are correct and cannot be raised where facts must be ascertained. The court reviewed the two suits and concluded the magistrate's court lacked jurisdiction over adverse possession, so the sub judice objection could not sustain striking out the present suit.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot succeed if facts must be ascertained
- Magistrates' courts have no jurisdiction to try claims for adverse possession; such claims must be brought before the ELC/High Court
- Sub judice under section 6 of the Civil Procedure Act is determined by the substance of the suit, not its form
Court orders
#- 1.That the matter pending in the Chief Magistrate's Court vide ELC No. 21 of 2018 be stayed, pending the outcome of the present matter
- 2.The Preliminary Objection dated the 23rd April 2018 is dismissed with costs to the Plaintiff
- 3.Parties to fix the Originating Summons for hearing expeditiously, directions having been taken earlier
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13(1) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jesee Njoroge Gitau v Kibuthu Macharia & another [2019] KEELC 4559 (KLR)", Case Analysis (2019). Nakuru ELC No. 106 of 2013 (Originating Summons). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4559/eng@2019-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.