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ELCAllowedBUNGOMA ELC CASE NO 2 OF 2020 (O.S)· [2020] KEELC 2328 (KLR)

Joseph Namafundo v Alphonce Simiyu Nabibia [2020] KEELC 2328 (KLR)

Environment and Land Court
27 May 2020
BOBoaz N. Olao
988 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicant, defendant in KIMILILI SPMCC ELC CASE NO 31 OF 2019, faced an eviction suit by the respondent over parcel KIMILILI/KIBINGEI/600. He separately filed BUNGOMA ELC CASE NO 2 OF 2020 (O.S) claiming to have acquired the suit land by adverse possession through his late father, who allegedly occupied it from 1966 until his death in 1976. By a Notice of Motion dated 5th February 2020, he sought transfer of the Kimilili eviction suit to the Environment and Land Court at Bungoma for consolidation with his adverse possession Originating Summons, contending that the magistrate's court lacked jurisdiction over adverse possession claims. The respondent, acting in person, opposed the application as frivolous and an abuse of process. The Court noted that the adverse possession claim was properly before the ELC and that the Kimilili suit sought only eviction, a matter within the subordinate court's jurisdiction. It nonetheless considered, and distinguished, Ohungo J's ruling in Patrick Ndegwa Munyua on magistrates' jurisdiction over adverse possession, observing it was persuasive only. Because both suits concerned the same land and parties, the Court allowed the application to avoid a multiplicity of suits: it ordered the Kimilili suit transferred to the ELC, directed both matters to be mentioned on 15th June 2020 for consolidation and directions, and made no order as to costs. The ruling was delivered electronically on 27th May 2020 due to COVID-19 restrictions.

Key legal issues

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01

Jurisdiction of the Subordinate Court over the eviction suit

Holding

The eviction suit is within the jurisdiction of the Subordinate Court; nothing was placed before the Court to prove the contrary.

Reasoning

The case pending at Kimilili seeks only eviction, not adverse possession. The adverse possession claim is properly before the ELC. The applicant's jurisdictional objection therefore misfires because the case he seeks to transfer does not raise adverse possession. The Court found no basis to displace the magistrate's court's jurisdiction over the eviction claim.

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02

Persuasive value of Ohungo J's ruling on magistrates' jurisdiction over adverse possession

Holding

The ruling in Patrick Ndegwa Munyua was noted but held irrelevant to the application because the adverse possession claim had been filed in the ELC.

Reasoning

The Court acknowledged Ohungo J's finding that Sections 9(a) of the Magistrates' Court Act and 26(3) or (4) of the ELC Act confer adverse possession jurisdiction on magistrates' courts within pecuniary limits, but found the ruling unnecessary since the adverse possession claim was already before the ELC and not the subordinate court.

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Legal principles established

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  • Where two suits involve the same suit land and the same parties, transfer and consolidation is prudent to avoid a multiplicity of suits.
  • A decision of a judge of the High Court/ELC is binding on Subordinate Courts but of only persuasive value to another judge.

Court orders

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  1. 1.KIMILILI SPMCC ELC CASE NO 31 OF 2019 be and is hereby transferred to this Court
  2. 2.Both KIMILILI SPMCC ELC CASE NO 31 OF 2019 and BUNGOMA ELC CASE NO 2 OF 2020 (O.S) be mentioned on 15th June 2020 for purposes of consolidation and further directions
  3. 3.No orders as to costs

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1)
  • Magistrate's Court ActSection 9(a)
  • Environment and Land Court ActSection 26(3) or (4)

Cases cited (1)

  • PATRICK NDEGWA MUNYUA .V. BENJAMIN KIIRU MWANGI & ANOTHER ELC CASE NO 2 OF 2019 NKU
    [2020] eKLR
Jurisdiction invoked
Environment and Land Court Act; Magistrates' Court Act (transfer/consolidation of related suits before the ELC)

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, "Joseph Namafundo v Alphonce Simiyu Nabibia [2020] KEELC 2328 (KLR)", Case Analysis (2020). BUNGOMA ELC CASE NO 2 OF 2020 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2328/eng@2020-05-27

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