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ELCOtherELC No. 2 of 2019 (Nakuru)· [2020] KEELC 3911 (KLR)

Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & another [2020] KEELC 3911 (KLR)

Environment and Land Court
30 January 2020
DOD. O. Ohungo
3,757 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 land claims, sending this Nakuru dispute to a lower court.

What this practically means

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Executive summary

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The plaintiff commenced an Originating Summons on 9 January 2019 seeking a declaration that he had acquired Bahati/Kabatini Block 1/9983 by adverse possession. The defendants entered appearance but filed no response. The plaintiff then moved by Notice of Motion dated 14 January 2019 for transfer of Nakuru CM ELC Case No. 330 of 2018 (Benjamin Kiiru Mwangi v Patrick Ndegwa Munyua, a trespass suit filed by the 1st defendant in November 2018) to the Environment and Land Court for consolidation. Counsel for the defendants argued that magistrates' courts have jurisdiction over adverse possession claims under the Magistrates' Courts Act, 2015, and that the matter should instead be transferred to the subordinate court; plaintiff's counsel raised no objection if jurisdiction existed. The sole issue was whether magistrates' courts may hear adverse possession claims. Justice D. O. Ohungo held that although Section 38(1) of the Limitation of Actions Act refers only to the High Court, that pre-2010 statute must be construed, under Section 7(1) of the Sixth Schedule to the Constitution, in conformity with Section 26(3) and (4) of the Environment and Land Court Act, 2011 and Section 9(a) of the Magistrates' Courts Act, 2015, which confer jurisdiction over title-to-land disputes on gazetted magistrates within their pecuniary limits. Adverse possession is essentially a title dispute; the word 'judge' in the Civil Procedure Act includes a magistrate; and devolution and access to justice favour wider distribution of such claims. The court therefore found magistrates' courts competent to hear adverse possession claims and, rather than consolidating in the ELC, transferred this suit to the Chief Magistrate's Court Nakuru, with liberty to apply for consolidation there. Costs were in the cause.

Key legal issues

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01

Jurisdiction of magistrates' courts over adverse possession claims

Holding

Magistrates' courts, when presided over by a duly gazetted magistrate with pecuniary jurisdiction, have jurisdiction to hear adverse possession claims, which are essentially disputes on title to land

Reasoning

Although Section 38(1) of the Limitation of Actions Act refers only to the High Court, it is a pre-2010 statute that must be construed, per Section 7(1) of the Sixth Schedule, in conformity with the Constitution and with Section 26(3) and (4) of the ELC Act and Section 9(a) of the Magistrates' Courts Act, both enacted to give effect to Articles 162(2)(b) and 169. Adverse possession involves title to land, and the word 'judge' under the Civil Procedure Act includes a magistrate. Devolution and access to justice support this construction.

p. 4
02

Nature and procedure of adverse possession claims

Holding

Adverse possession claims are not complex; they are commenced by originating summons designed for simple matters, and case law now permits commencement by plaint or counterclaim

Reasoning

The court relied on the Court of Appeal's statement that originating summons procedure is intended for simple matters, not contested facts or serious questions, and noted authorities allowing adverse possession claims by plaint or counterclaim. Procedurally, such claims are as ordinary as any other matter in the magistrates' courts' cause list.

p. 5

Legal principles established

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

Court orders

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  1. 1.ELC No. 2 of 2019 Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & Fredrick Maina Mwangi (Nakuru) transferred to Chief Magistrates Court Nakuru for hearing and determination
  2. 2.Parties at liberty to make an appropriate application before the subordinate court for consolidation of this matter and Nakuru CM ELC Case No. 330 of 2018 Benjamin Kiiru Mwangi vs. Patrick Ndegwa Munyua
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • 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
  • Limitation of Actions ActSections 7 and 38(1)
  • Environment and Land Court Act, 2011Sections 13 and 26(3) and (4)
  • Magistrates' Courts Act, 2015Sections 7(1) and 9(a)
  • Civil Procedure ActSection 2
  • Civil Procedure RulesOrder 37 Rules 7, 16, 17 and 18

Cases cited (9)

  • In the Matter of Interim Independent Electoral Commission
    [2011] eKLR
  • Owners of Motor Vessel 'Lillian S' v. Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others
    [2017] eKLR
  • Edward Mwaniki Gaturu & another vs. Hon. Attorney-General & 3 others
    [2013] eKLR
  • AHAD v CJE
    [2019] eKLR
  • Kenya Commercial Bank Ltd vs. Osebe
  • Gulam Miriam Noordin v Julius Charo Karisa
    [2015] eKLR
  • Chevron (K) Ltd v Harrison Charo Wa Shutu
    [2016] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & another [2020] KEELC 3911 (KLR)", Case Analysis (2020). ELC No. 2 of 2019 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3911/eng@2020-01-30

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