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ELCStruck OutNot stated in judgment· [2022] KEELC 1101 (KLR)

Leah Wambui Kimotho v Maina Munguri & another [2022] KEELC 1101 (KLR)

Environment and Land Court
18 February 2022
ECE.C. Cherono
2,818 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's land court cannot hear adverse possession claims over National Irrigation Board tenancy licences, so this Mwea rice plot suit was struck out entirely.

What this practically means

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Executive summary

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The plaintiff, a daughter of the 1st defendant/respondent, moved the Environment and Land Court at Kerugoya by Notice of Motion dated 2nd March 2021 under Order 40 Rule 2 and Order 51 of the Civil Procedure Rules seeking a temporary injunction restraining the defendants from entering, cultivating, surveying, transferring or otherwise interfering with Rice Holding tenancy licence No. 3694 unit W6 Wamumu Section of the Mwea Irrigation Settlement Scheme, and maintenance of status quo, pending her adverse possession claim in an Originating Summons dated 1st March 2021. She claimed over forty years of uninterrupted possession as a rice farmer with her siblings. The defendants opposed through a preliminary objection and replying affidavit, contending that the suit land is state land managed by the National Irrigation Board under the Irrigation Act, incapable of adverse possession; that the court lacked jurisdiction; that the suit was res judicata given Baricho S.P.M ELC No. E10 of 2021; and that it was an abuse of process under Sections 6 and 7 of the Civil Procedure Act. Relying on Mukisa Biscuit, Lillian S, Samuel Kamau Macharia and the Republic v National Irrigation Board ex parte John Murimi Gichobi, the court held that Section 38(1) of the Limitation of Actions Act confines adverse possession claims to land registered under the statutes listed in Section 37, and the holding was not so registered, being National Irrigation Board property over which the Board has absolute power to issue and terminate licences. Lacking jurisdiction, the court struck out both the Originating Summons and the Notice of Motion, awarding costs to the defendants.

Key legal issues

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01

Whether the ELC has jurisdiction over an adverse possession claim in respect of an unregistered tenancy licence within a National Irrigation Scheme

Holding

The court lacks jurisdiction because the suit land is a tenancy licence not registered under any of the statutes in Section 37 of the Limitation of Actions Act, and is National Irrigation Board property over which the Board has absolute power to issue and terminate licences

Reasoning

Section 38(1) of the Limitation of Actions Act permits adverse possession claims only over land registered under the Acts listed in Section 37. The subject matter, Rice Holding tenancy licence No. 3694 unit W6 Wamumu Section, is not registered under any of those Acts and belongs to the National Irrigation Board, which has statutory mandate to manage, control, regulate and allocate land within National Irrigation and Settlement Schemes. Jurisdiction being absent, the court must down its tools and strike out the suit.

p. 4

Legal principles established

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  • A court's jurisdiction is conferred only by the Constitution or legislation and cannot be exceeded
  • Where a court finds it lacks jurisdiction it must down its tools immediately
  • Adverse possession under Section 38(1) of the Limitation of Actions Act applies only to land registered under the Acts cited in Section 37 of that Act

Court orders

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  1. 1.The Originating Summons dated 1st March, 2021 is struck out
  2. 2.The Notice of Motion dated 2/3/2021 is struck out
  3. 3.Costs to the defendants/respondents
Jurisdiction invoked
Section 13 of the Environment and Land Court Act No. 19 of 2011 and Article 162(2)(b) of the Constitution

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, "Leah Wambui Kimotho v Maina Munguri & another [2022] KEELC 1101 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1101/eng@2022-02-18

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