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ELCDismissedVihiga PMCC ELC No. 28 of 2020 (Motion dated 23rd July 2020)· [2020] KEELC 882 (KLR)

Jeanbye Mungole Mugesani v Filemona Fundi Indira [2020] KEELC 882 (KLR)

High Court of Kenya (Environment and Land Court)
26 October 2020
NMN.A. Matheka
340 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan magistrates' courts can hear adverse possession land claims, so suits need not be moved to the High Court.

What this practically means

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Executive summary

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The applicant, Washington Athung'a, moved the Environment and Land Court at Kakamega by a notice of motion dated 23rd July 2020 under Sections 1A, 1B and 3 of the Civil Procedure Act, seeking the transfer of Vihiga PMCC ELC No. 28 of 2020 to the Kakamega High Court Environment and Land Court, with costs in the cause. The application was supported by the applicant's affidavit and grounded on the contention that the subordinate court lacked clear jurisdiction to determine the matter owing to conflicting High Court decisions, and that transfer would serve the interest of justice. Counsel relied on Njoroge Gitau vs. Kabuthu Macharia and Peter Turuthi, Nyahururu ELC No. 81 of 2017. The application was served, but the respondents neither attended court nor filed a response, leaving it undefended. Matheka J considered the application and submissions, and adopted the reasoning in Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & Another [2020] eKLR, which held that magistrates' courts presided over by magistrates duly gazetted under Section 26(3) of the Environment and Land Court Act, 2011, and possessed of the requisite pecuniary jurisdiction, have jurisdiction to handle adverse possession claims. The court expressly agreed, holding that magistrates do have jurisdiction over such claims. The application was accordingly found to lack merit and was dismissed with no orders as to costs, it being undefended. The ruling was delivered, dated and signed at Kakamega on 26th October 2020.

Key legal issues

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Jurisdiction of magistrates' courts over adverse possession claims

Holding

Magistrates' courts have jurisdiction to entertain adverse possession claims when presided over by a duly gazetted magistrate with pecuniary jurisdiction

Reasoning

The court adopted the holding in Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & Another, grounded on Sections 26(3) and (4) of the Environment and Land Court Act, 2011 and Section 9(a) of the Magistrates' Courts Act, 2015, and the constitutional principles of devolution and access to justice. It expressly agreed that the applicant's contention of conflicting high court decisions did not oust magistrates' jurisdiction, and therefore no basis existed to transfer the matter to the High Court.

p. 2

Legal principles established

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  • Magistrates' courts, where presided over by a magistrate duly gazetted under Section 26(3) of the Environment and Land Court Act, 2011 with the requisite pecuniary jurisdiction, have jurisdiction to entertain claims based on adverse possession

Court orders

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  1. 1.The application dated 23rd July 2020 seeking transfer of Vihiga PMCC ELC No. 28 of 2020 to the Kakamega High Court Environment and Land Court is dismissed
  2. 2.No orders as to costs as the application is undefended

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3
  • Environment and Land Court Act, 2011Sections 26(3) and (4)
  • Magistrates' Courts Act, 2015Section 9(a)

Cases cited (2)

  • Njoroge Gitau vs. Kabuthu Macharia and Peter Turuthi
    Nyahururu ELC No. 81 of 2017
  • Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & Another
    [2020] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3 of the Civil Procedure Act (application); Section 26(3) and (4) of the Environment and Land Court Act, 2011 and Section 9(a) of the Magistrates' Courts Act, 2015

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, "Jeanbye Mungole Mugesani v Filemona Fundi Indira [2020] KEELC 882 (KLR)", Case Analysis (2020). Vihiga PMCC ELC No. 28 of 2020 (Motion dated 23rd July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/882/eng@2020-10-26

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