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ELCDismissedMiscellaneous Application (motion dated 25/02/2021) seeking transfer of Siaya SPMC ELC No. 104 of 2018· [2022] KEELC 1549 (KLR)

Justo Odymah Ngonga v Amondi Odymah Oluoko [2022] KEELC 1549 (KLR)

Environment and Land Court
10 February 2022
AKA. Y. Koross
677 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 moved the Environment and Land Court at Siaya by a motion dated 25 February 2021, under Sections 3A, 17 and 18 of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, seeking transfer of Siaya SPMC ELC No. 104 of 2018 (Amondi Odymah v Justo Odymah Ngonga) to the ELC. His principal ground was that the magistrates' court lacked jurisdiction to determine the adverse possession claim he had raised in his amended defence and counterclaim filed on 14 March 2019, arguing that Section 38 of the Limitation of Actions Act requires such claims to be filed in the High Court by Originating Summons. The motion was unopposed; the respondent filed neither a response nor submissions, and the court determined the motion on its merits. The single issue was whether magistrates' courts have jurisdiction over adverse possession claims. The court held that Sections 9(a) of the Magistrates' Courts Act and 26 of the Environment and Land Court Act confer land jurisdiction on gazetted magistrates, and that although Section 38 of the Limitation of Actions Act predates the 2010 Constitution and was never amended, Section 7(1) of the Sixth Schedule requires pre-existing law to be construed with adaptations to conform to the Constitution. Following prior ELC decisions, the court held the magistrates' court has jurisdiction, found the suit properly before the trial court, and dismissed the miscellaneous suit with no orders as to costs, marking the case closed.

Key legal issues

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Jurisdiction of magistrates' courts over adverse possession claims

Holding

Magistrates' courts have jurisdiction to hear and determine adverse possession claims notwithstanding Section 38 of the Limitation of Actions Act, by operation of Sections 9(a) of the Magistrates' Courts Act and Section 26 of the ELC Act

Reasoning

Section 38 of the Limitation of Actions Act predates the 2010 Constitution and was never amended. Under Section 7(1) of the Sixth Schedule, such law continues in force only with alterations, adaptations, qualifications and exceptions necessary to conform to the Constitution. ELC decisions have adapted Section 38(1) to conform to Section 26(3) and (4) of the ELC Act and Section 9(a) of the Magistrates' Courts Act, conferring jurisdiction on gazetted magistrates.

p. 2

Legal principles established

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  • Gazetted magistrates' courts have jurisdiction to hear and determine claims of adverse possession

Court orders

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  1. 1.This miscellaneous suit is hereby dismissed with no orders as to costs
  2. 2.The case is marked as closed

Authorities

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Legislation

  • Civil Procedure ActSections 3A, 17, 18
  • Civil Procedure RulesOrder 51
  • Magistrates’ Courts ActSection 9(a)
  • Environment and Land Court ActSections 26, 26(3) and (4)
  • Limitation of Actions ActSections 38, 38(1)
  • Constitution of Kenya, 2010Section 7(1) of the Sixth Schedule

Cases cited (3)

  • Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & another
    [2020] eKLR
  • Philip Kithaka v Mercy Karimi Nyaga
    [2021] eKLR
  • Christopher Kangogo Cheboiboch v Susan Chepichi Chepkiyeng
    [2021] eKLR
Jurisdiction invoked
Sections 3A, 17 and 18 of the Civil Procedure Act and Order 51 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Justo Odymah Ngonga v Amondi Odymah Oluoko [2022] KEELC 1549 (KLR)", Case Analysis (2022). Miscellaneous Application (motion dated 25/02/2021) seeking transfer of Siaya SPMC ELC No. 104 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1549/eng@2022-02-10

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