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ELCPartially AllowedELC No. 44 of 2019 (OS)· [2020] KEELC 3757 (KLR)

William Ngethe Waweru & 13 others v Kanyamwi Trading Company Limited [2020] KEELC 3757 (KLR)

Environment and Land Court
4 February 2020
DOD. O. Ohungo
3,652 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that magistrates' courts can hear adverse possession cases, transferring this land dispute from the High Court-level ELC to Nakuru's Chief Magistrate's Court.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (Ohungo J) determined two competing notices of motion arising from parallel disputes over parcels known as Gilgil/Karunga Block 12 (Uikaro Kanyamwi Farm). The defendant, registered proprietor of the suit parcels, had sued the plaintiffs in Nakuru CMCC ELC NO. 69 of 2019 seeking a declaration of ownership, injunction and eviction, filed on 29th March 2019. The plaintiffs then filed this adverse possession suit on 15th May 2019 and obtained orders on 29th May 2019. The plaintiffs sought transfer of the subordinate court suit to the ELC for consolidation, or alternatively a stay; the defendant sought to set aside the 29th May orders and to have this suit set aside as sub judice under the Civil Procedure Act. The court declined to set aside the 29th May orders, holding that although the plaintiffs failed to disclose the earlier suit when seeking ex parte orders, the defendant was duly served and would suffer no prejudice. On jurisdiction, the court held, following its own earlier decision in Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi, that duly gazetted magistrates with requisite pecuniary jurisdiction have power to hear adverse possession claims; Section 38(1) of the Limitation of Actions Act, a pre-2010 statute, must be construed in conformity with the Constitution and the newer land legislation. Distinguishing Jesee Njoroge Gitau v Kibuthu Macharia, the court found no basis to transfer or stay the subordinate court matter. Instead, it transferred this suit to the Chief Magistrate's Court, Nakuru, granted liberty to seek consolidation there, and ordered costs of both applications to be in the cause.

Key legal issues

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01

Jurisdiction of magistrates' courts over adverse possession claims

Holding

Duly gazetted magistrates with requisite pecuniary jurisdiction have jurisdiction to hear and determine adverse possession claims; Section 38(1) of the Limitation of Actions Act does not bar them

Reasoning

Section 26(3) and (4) of the Environment and Land Court Act, 2011 and Section 9(a) of the Magistrates' Courts Act, 2015 confer jurisdiction over title-to-land disputes, and adverse possession is essentially a title dispute. Section 38(1) of the Limitation of Actions Act, a 1967 statute, must be construed with alterations necessary to conform to the 2010 Constitution per Section 7(1) of the Sixth Schedule. This construction also serves constitutional principles of devolution and access to justice. The word 'judge' in Order 37 includes magistrates.

p. 4
02

Setting aside of the ex parte order of 29th May 2019

Holding

Setting aside refused; although the plaintiffs failed to disclose the pending subordinate court suit, the order issued after due service and the defendant would suffer no prejudice

Reasoning

Applying the discretionary principles in Mbogoh & Another v Shah as restated in James Kanyiita Nderitu, the defendant was duly served and ought to have attended and raised sub judice. Since one of the defendant's prayers in the subordinate court suit (eviction) would ordinarily be granted only upon full hearing, no prejudice flows from leaving the orders in place.

p. 3
03

Stay or transfer under Section 6 of the Civil Procedure Act (sub judice)

Holding

Neither suit should be stayed nor the subordinate court suit transferred; this suit is transferred to the subordinate court, where consolidation may be sought

Reasoning

The adverse possession issue is not pending in the subordinate court suit, but the eviction claim there is materially relevant to the adverse possession claim here. The real solution is transferring this case to the subordinate court so all issues, including ownership, possession and adverse possession, can be determined once and for all.

p. 5

Legal principles established

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  • So long as presided over by a magistrate duly gazetted under Section 26(3) of the Environment and Land Court Act, 2011 and with requisite pecuniary jurisdiction, magistrates' courts have jurisdiction to handle claims of adverse possession
  • Section 38(1) of the Limitation of Actions Act, being a pre-2010 statute, must be construed in conformity with the Constitution and newer legislation, and does not deprive magistrates' courts of jurisdiction over adverse possession claims
  • As used in the Civil Procedure Act and Rules, 'judge' means the presiding officer of a court and includes a magistrate

Court orders

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  1. 1.This matter (ELC No. 44 of 2019 William Ngethe Waweru & 13 Others v Kanyamwi Trading Company Ltd (Nakuru)) is hereby transferred to Chief Magistrates Court Nakuru for hearing and determination, with liberty to make any further or other orders regarding the orders of 29th May 2019
  2. 2.Parties are at liberty to make an appropriate application before the subordinate court for consolidation of this matter with Nakuru CMCC ELC NO. 69 of 2019 Kanyamwi Trading Company Ltd v William Ngethe Waweru & 13 Others
  3. 3.If parties are unable to agree on consolidation or if consolidation is not ordered, the subordinate court shall be at liberty to make appropriate orders as to whether ELC No. 44 of 2019 will be stayed pending hearing and determination of Nakuru CMCC ELC NO. 69 of 2019
  4. 4.Costs of Notice of Motion dated 19th June 2019 and Notice of Motion dated 28th June 2019 shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 6; Section 7; Section 2 (definition of 'judge')
  • Civil Procedure RulesOrder 10 rule 11; Order 37 Rules 7, 16, 17 and 18
  • Limitation of Actions ActSection 38
  • Environment and Land Court Act, 2011Section 26(3) and (4)
  • Magistrates' Courts Act, 2015Section 7(1); Section 9(a)
  • Constitution of Kenya, 2010Articles 6(3), 23(2), 48, 162(2)(b), 169(1)(a) and (2), 259; Section 7(1) of the Sixth Schedule

Cases cited (8)

  • Jesee Njoroge Gitau v Kibuthu Macharia & another
    [2019] eKLR
  • Edward R. Ouko v Speaker of the National Assembly & 4 others
    [2017] eKLR
  • Mbogoh & Another v. Shah
    [1968] EA 93
  • James Kanyiita Nderitu & another v Marios Philotas Ghikas & another
    [2016] eKLR
  • Patel v. E.A. Cargo Handling Services Ltd
    (1975) EA 75
  • Chemwolo & Another v. Kubende
    [1986] KLR 492
  • CMC Holdings v. Nzioki
    [2004] 1 KLR 173
  • Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & Another
    Nakuru ELC No. 2 of 2019
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 (Environment and Land Court)

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, "William Ngethe Waweru & 13 others v Kanyamwi Trading Company Limited [2020] KEELC 3757 (KLR)", Case Analysis (2020). ELC No. 44 of 2019 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3757/eng@2020-02-04

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