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ELCDismissedNot stated in the judgment (application dated January 21, 2022 arising from Kisii CMELC Case No 308 of 2018)· [2022] KEELC 2965 (KLR)

Mokua v Abuga & 2 others (Environment and Land Miscellaneous Application E001 of 2022) [2022] KEELC 2965 (KLR)

Environment and Land Court
26 May 2022
JOJ.M Onyango
2,806 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that adverse possession claims over registered land must be filed in the High Court, and a case filed in the wrong court is a nullity that cannot be transferred.

What this practically means

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Executive summary

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The plaintiff, registered owner of parcel Nyaribari Masaba/kiamokama/748 through transmission, sued the widow and son of the late Oribo Abuga in 2017 seeking a declaration of ownership and a permanent injunction to stop the burial of the deceased on her land. The ELC (Mutungi J) granted interim injunctions, and on November 22, 2018 the case was transferred to the Magistrates' Court, becoming Kisii CMELC Case No 308 of 2018. After directions of August 24, 2021, the plaintiff filed an amended plaint introducing, for the first time, a claim in adverse possession over parcel Nyaribari Masaba/kiamokama/747, contending her title had accrued under sections 7, 13 and 17 of the Limitation of Actions Act. On January 21, 2022 she moved the ELC under sections 1A, 1B and 18 of the Civil Procedure Act and section 38(1) of the Limitation of Actions Act for a stay of the subordinate court proceedings and transfer of the suit to the ELC. The defendants raised a preliminary objection that a court cannot transfer an incompetent suit. Onyango J identified a single issue: whether the ELC had jurisdiction to transfer the case. The court held that a claim in adverse possession of registered land must be filed in the High Court under section 38 of the Limitation of Actions Act; following Phoenix E A Assurance Co Ltd v S M Thiga, the suit as filed in a court without jurisdiction was a nullity ab initio and not transferable. The amendment had also been made without leave - the ruling of August 24, 2021 merely directed exchange of pleadings and documents. The preliminary objection was upheld, the application dismissed with costs to the defendants, the stay vacated, and the parties directed to expedite hearing of the burial dispute, the body having lain in the mortuary since 2017.

Key legal issues

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01

Whether the ELC has jurisdiction to transfer the subordinate court suit to itself following the plaintiff's amendment introducing an adverse possession claim

Holding

The court lacked jurisdiction to transfer the suit as amended; the adverse possession claim had to be filed in the High Court and the unamended-incompetent suit was a nullity not transferable

Reasoning

Section 38 of the Limitation of Actions Act vests jurisdiction over adverse possession claims to registered land in the High Court. The amended plaint added such a claim in the Magistrates' Court, which is ouster of jurisdiction. Following the Court of Appeal's decision in Phoenix E A Assurance Co Ltd v S M Thiga, a suit filed in a court without jurisdiction is a nullity ab initio and cannot be transferred. The amendment was also made without the court's leave, as the ruling of August 24, 2021 only directed exchange of pleadings and documents, not reopening of pleadings.

p. 5
02

Whether the plaintiff's amendment of the plaint was properly sanctioned by the court

Holding

The amendment introducing the adverse possession claim was not sanctioned; counsel misread directions 3 and 4 of the ruling of August 24, 2021 as reopening pleadings

Reasoning

The court's ruling of August 24, 2021 directed parties to exchange documents and pleadings but nowhere granted leave to amend. The judge found that counsel mistook these directions as authority to amend and described the reading as a gross misdirection. As a result, the purported amendment was unsanctioned, compounding the jurisdictional defect in the adverse possession claim filed before the Magistrates' Court.

p. 5

Legal principles established

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  • A claim to title by adverse possession of registered land must be brought in the High Court under section 38 of the Limitation of Actions Act
  • A suit filed in a court without jurisdiction is a nullity ab initio and cannot be transferred to another court

Court orders

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  1. 1.Upheld the preliminary objection
  2. 2.Dismissed the notice of motion dated January 21, 2022 with costs to the defendants
  3. 3.Vacated the order of stay of proceedings in Kisii CMELC Case No 308 of 2018
  4. 4.Directed that the suit be heard and concluded within the shortest time possible

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 18
  • Civil Procedure RulesOrder 51 rule 1
  • Environment and Land Court Actsection 13
  • Limitation of Actions Actsections 7, 13, 17, 38(1)
  • Magistrates' Courts Actsection 9

Cases cited (1)

  • Phoenix E A Assurance Company Limited v S M Thiga T/A Newspaper Service
    Civil Appeal No 244 of 2010
Jurisdiction invoked
Sections 1A, 1B and 18 of the Civil Procedure Act, Cap 21; section 13 of the Environment and Land Court Act 2011; section 38(1) of the Limitation of Actions Act

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, "Mokua v Abuga & 2 others (Environment and Land Miscellaneous Application E001 of 2022) [2022] KEELC 2965 (KLR)", Case Analysis (2022). Not stated in the judgment (application dated January 21, 2022 arising from Kisii CMELC Case No 308 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2965/eng@2022-05-26

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