Benjamin Barasa Wafula (Appealing as the Petitioner Intestate Estate of the Late Musiya Kitui Nasong'o) v Cabinet Secretary for Lands and Settlement & 7 others (Environment and Land Appeal 30 of 2019) [2022] KEELC 3660 (KLR)
The bottom line
#Kenya's magistrates' courts can now properly hear adverse possession land claims; the ELC at Kakamega reversed a ruling that had struck one out for lack of jurisdiction.
What this practically means
#Executive summary
#Key legal issues
#Proper joinder of the 4th to 8th respondents in the appeal
The 4th to 8th respondents were not parties below and were improperly joined; the magistrate is protected by judicial immunity and counsels are agents of known principals and officers of the court.
The record showed only the appellant and 1st to 3rd respondents were parties in the subordinate court. The 5th respondent was the judicial officer protected by article 160(5) of the Constitution, as restated by the Supreme Court in Bellevue Development Company Ltd v Francis Gikonyo & 3 others. The 6th to 8th respondents were advocates, agents of known principals and officers of the court under section 55 of the Advocates Act; any cause of action would lie against their principals. Nothing justified their joinder.
Jurisdiction of magistrates' courts over adverse possession claims
Gazetted magistrates with the requisite pecuniary jurisdiction may hear and determine adverse possession claims; section 38(1) of the Limitation of Actions Act must be construed in conformity with the Constitution and later legislation.
Section 38(1) of the Limitation of Actions Act, a pre-2010 statute, refers only to the High Court. Section 7(1) of the Sixth Schedule requires such law to be construed with alterations necessary for conformity with the Constitution. Sections 26(3) and (4) of the Environment and Land Court Act and section 9(a) of the Magistrates' Courts Act confer jurisdiction over land-title matters on duly gazetted magistrates within pecuniary limits. Adverse possession is a title dispute; the magistrate therefore erred in upholding the preliminary objections.
Legal principles established
#- Magistrates duly gazetted under section 26(3) and (4) of the Environment and Land Court Act and possessing the requisite pecuniary jurisdiction have jurisdiction to hear adverse possession claims despite section 38(1) of the Limitation of Actions Act referring to the High Court.
- Adverse possession claims involve title to land because the claimant ultimately seeks registration as proprietor.
- Judicial officers enjoy immunity from suit for acts done in good faith in the lawful performance of judicial functions under article 160(5) of the Constitution.
Court orders
#- 1.The ruling and order of the subordinate court dated August 22, 2019 are set aside
- 2.The 1st and 2nd respondents' preliminary objection dated May 2, 2019 and the 3rd respondent's preliminary objection dated June 24, 2019 are dismissed with costs to the appellant
- 3.Each party shall bear own costs of the appeal
- On appeal from
- Principal Magistrate's Court, Butali
- Butali MLEC No 8 of 2019
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010 (Environment and Land Court jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Barasa Wafula (Appealing as the Petitioner Intestate Estate of the Late Musiya Kitui Nasong'o) v Cabinet Secretary for Lands and Settlement & 7 others (Environment and Land Appeal 30 of 2019) [2022] KEELC 3660 (KLR)", Case Analysis (2022). Butali MLEC Appeal No 8 of 2019 (appeal from Butali MLEC No 8 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3660/eng@2022-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.