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ELCDismissedNakuru ELC No. 106 of 2013 (Originating Summons)· [2019] KEELC 4559 (KLR)

Jesee Njoroge Gitau v Kibuthu Macharia & another [2019] KEELC 4559 (KLR)

Environment and Land Court
18 February 2019
3,169 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff filed an Originating Summons seeking to be registered as proprietor of parcel No. Nyandarua/Kipipiri/486 by adverse possession, having been allotted and occupied neighbouring land NYA/KIP/229/2124 since 1966/1968. The Defendants filed a Notice of Preliminary Objection dated 23rd April 2018, arguing the suit was sub judice given the pendency of Nyahururu PMCC No. 144 of 2008 (now CM ELC No. 21 of 2018), in which the 2nd Defendant, as registered proprietor, sought a declaration of ownership over the same parcel, and that the Plaintiff lacked locus standi. The Plaintiff countered that the parties differed, that the objection was not a pure point of law per Mukisa Biscuits, and that only the ELC/High Court has jurisdiction over adverse possession claims under sections 37 and 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules. The court, framed three issues: jurisdiction, sustainability and merit of the objection. Examining the pleadings in the magistrate's court suit, it found the subject matter substantially similar and parties virtually the same. However, it held that magistrates' courts lack jurisdiction to try adverse possession claims, so section 6 of the Civil Procedure Act could not justify striking out the present suit; sub judice is determined by substance, not form. To avoid contradictory findings, the court stayed the magistrate's court suit pending the outcome of this suit, dismissed the Preliminary Objection with costs to the Plaintiff, and directed parties to fix the Originating Summons for hearing expeditiously.

Key legal issues

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01

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

Holding

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

Reasoning

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.

p. 4
02

Whether the Preliminary Objection met the Mukisa Biscuits threshold

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The Preliminary Objection dated the 23rd April 2018 is dismissed with costs to the Plaintiff
  3. 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

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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, "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.