Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedIten E&L Case Number 6 of 2019 (sought to be transferred and consolidated with the present Eldoret Environment and Land Court suit; the present suit's number is not stated)· [2020] KEELC 1463 (KLR)

Francis Kimaiyo Kiplagat v John Kipruto Kipsang [2020] KEELC 1463 (KLR)

Environment and Land Court of Kenya
9 July 2020
MOM. A. ODENY, DR.
1,420 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court moved a land dispute from a magistrate's court to Eldoret so two suits over the same parcel would be heard together as one case.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Eldoret (Dr. M. A. Odeny, J) determined a notice of motion dated 26 August 2019 in which the applicant sought a stay of proceedings in Iten E&L Case No. 6 of 2019 (John Kipruto Kipsang v Francis Kimaiyo Kiplagat) pending determination of the present suit, and an order transferring and consolidating that case with the present suit. The applicant argued that his claim over Elgeyo Marakwet/Kessup 'B'/352 was one of adverse possession under section 38(1) of the Limitation of Actions Act, that only the Environment and Land Court had jurisdiction over such claims, and that the court could transfer the file under section 18(1)(b) of the Civil Procedure Act. Citing Nyati Security Guards Ltd v Municipal Council of Mombasa, he urged that the two suits raised common questions of law and fact arising from the same transaction. The respondent, in a replying affidavit, accused the applicant of non-disclosure of the pending magistrate's court suit, which had been filed earlier. The court framed two issues: the magistrates' court's jurisdiction over adverse possession claims and whether transfer and consolidation was warranted. It held that section 26 of the Environment and Land Court Act gives magistrates' courts jurisdiction over land disputes, while noting two conflicting schools of thought on adverse possession claims. Finding the suits concern the same parcel of land, the court allowed the application and ordered the Iten case transferred to the Eldoret Environment and Land Court for consolidation, hearing and determination. No costs order was made.

Key legal issues

#
01

Whether the Magistrates' Court has jurisdiction over adverse possession claims

Holding

The court found that section 26 of the Environment and Land Court Act gives magistrates' courts jurisdiction to handle land disputes, though it acknowledged two schools of thought on whether magistrates may handle adverse possession claims, which some say must be brought by originating summons in the High Court.

Reasoning

The court extracted section 9 of the Magistrates' Courts Act, section 13 and section 26 of the Environment and Land Court Act. It noted the applicant did not challenge whether the magistrate was gazetted, only the court's competence over adverse possession. It concluded magistrates have jurisdiction over land disputes under section 26, while observing an unresolved debate because adverse possession claims are said to be filed by originating summonses, the preserve of the High Court.

p. 2
02

Whether the Iten magistrate's court suit should be transferred and consolidated with the present suit

Holding

The application was found to have merit and the Iten case was ordered transferred to the Eldoret Environment and Land Court for consolidation, hearing and determination.

Reasoning

Both suits concern the same parcel of land, Elgeyo Marakwet/Kessup 'B'/352. The magistrate's suit was filed on 26 March 2019 and the present suit in June 2019. Relying on Nyati Security Guards & Services Ltd v Municipal Council of Mombasa, consolidation is proper where common questions of law or fact arise or the reliefs arise from the same transaction. The court had power under section 18(1)(b) of the Civil Procedure Act to withdraw and transfer the subordinate court suit.

p. 3

Legal principles established

#
  • Section 26 of the Environment and Land Court Act confers jurisdiction on magistrates' courts to handle suits relating to land disputes, subject to pecuniary limits.
  • The High Court (and by extension the Environment and Land Court) has power under section 18(1)(b) of the Civil Procedure Act to withdraw suits pending in subordinate courts and transfer them for trial or disposal.
  • Consolidation is warranted where there are common questions of law or fact, or where the rights or relief claimed arise out of the same transaction.

Court orders

#
  1. 1.That Iten E&L Case No. 6 of 2019 – John Kipruto Kipsang v Francis Kimaiyo be transferred to Eldoret Environment and Land Court for consolidation and hearing and determination

Authorities

#

Legislation

  • Limitation of Actions Actsection 38(1)
  • Environment and Land Court Actsections 4, 13, 26
  • Civil Procedure Actsection 18(1)(b)
  • Magistrates' Courts Actsection 9
  • Constitution of KenyaArticles 162(2)(b), 169(2)

Cases cited (1)

  • Nyati Security Guards Ltd. v Municipal Council of Mombasa
    (2000) eKLR / (2004) eKLR (cited inconsistently in the judgment)
Jurisdiction invoked
Sections 18(1)(b) of the Civil Procedure Act and 13 of the Environment and Land Court Act, 2011; Article 162(2)(b) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Francis Kimaiyo Kiplagat v John Kipruto Kipsang [2020] KEELC 1463 (KLR)", Case Analysis (2020). Iten E&L Case Number 6 of 2019 (sought to be transferred and consolidated with the present Eldoret Environment and Land Court suit; the present suit's number is not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1463/eng@2020-07-09

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