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ELCDismissedKakamega MCL & E Case No. 196 of 2018 (application dated 11th August 2020)· [2020] KEELC 932 (KLR)

Musa Ndaliro Muchelule & another v Laurence Eshibuko & 4 others [2020] KEELC 932 (KLR)

High Court of Kenya
27 October 2020
NMN. A. Matheka
582 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed that gazetted magistrates' courts can hear adverse possession land cases, so transferring such suits to the High Court is unnecessary.

What this practically means

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Executive summary

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This was an application dated 11th August 2020, brought under Section 3A of the Civil Procedure Act, Order 40 rule (1) and (6) and Order 50 rule (1) of the Civil Procedure Rules, 2010, and Sections 5 and 8 of the High Court Vacation Rules, Judicature Act, seeking that the application be heard during the vacation and, principally, that Kakamega MCL & E Case No. 196 of 2018 be transferred to the High Court for hearing and final determination during the vacation, with costs provided for. The applicant argued that he had initially filed the suit in the High Court but it was transferred to the subordinate court; that when the matter came up on 13th August 2019 it emerged that the Kakamega Chief Magistrate's Court lacked jurisdiction to cancel a land title, the principal issue in the suit; and that the interests of justice favoured transfer to the High Court. The respondents opposed, contending that the applicant, previously represented by Osundwa & Company Advocates, had not complied with Order 9 rule 8 of the Civil Procedure Rules by giving notice of intention to act in person, and that the transfer order did not lie under the persuasive High Court decision in Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & Another (2020) eKLR, the applicant having not demonstrated that the subject matter exceeded the magistrates' pecuniary jurisdiction. Relying on and adopting that decision, the court held that magistrates duly gazetted under Section 26(3) of the Environment and Land Court Act, 2011, with requisite pecuniary jurisdiction, may entertain adverse possession claims. The application was dismissed with costs to the respondents.

Key legal issues

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Jurisdiction of magistrates' courts over adverse possession claims

Holding

The High Court agreed with and adopted the holding in Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & Another (2020) eKLR that gazetted magistrates with requisite pecuniary jurisdiction may determine adverse possession claims; the application for transfer was therefore unmerited and dismissed with costs.

Reasoning

The applicant argued the Kakamega Chief Magistrate's Court lacked jurisdiction to cancel a land title, the principal issue in the suit, and sought transfer to the High Court. Respondents opposed, invoking Order 9 rule 8 on acting in person and the persuasive decision in Patrick Ndegwa Munyua, noting the applicant had not shown the subject matter exceeded the magistrates' pecuniary jurisdiction. The court adopted the reasoning in that decision, resting on Section 26(3) and (4) of the Environment and Land Court Act, 2011 and Section 9(a) of the Magistrates' Courts Act, 2015, and constitutional principles of devolution, access to services and access to justice, and dismissed the application.

p. 2

Legal principles established

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  • Magistrates' courts presided over by magistrates duly gazetted under Section 26(3) of the Environment and Land Court Act, 2011 and possessing the requisite pecuniary jurisdiction have jurisdiction to handle claims of adverse possession

Court orders

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  1. 1.The application dated 11th August 2020 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure Act / High Court Vacation Rules, Judicature ActSection 3A; Sections 5 & 8 (Vacation Rules)
  • Civil Procedure Rules, 2010Order 40 rule (1) & rule (6); Order 50 rule (1); Order 9 rule 8
  • Environment and Land Court Act, 2011Section 26(3) and (4)
  • Magistrates’ Courts Act, 2015Section 9(a)

Cases cited (1)

  • Patrick Ndegwa Munyua vs. Benjamin Kiiru Mwangi & Another
    (2020) eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act; Order 40 rule (1) & rule (6) and Order 50 rule (1) of the Civil Procedure Rules, 2010; Sections 5 & 8 of the High Court Vacation Rules, Judicature 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, "Musa Ndaliro Muchelule & another v Laurence Eshibuko & 4 others [2020] KEELC 932 (KLR)", Case Analysis (2020). Kakamega MCL & E Case No. 196 of 2018 (application dated 11th August 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/932/eng@2020-10-27

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