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ELCOtherNot stated on the face of the judgment (application dated 19/2/2024)· [2024] KEELC 5886 (KLR)

Eloto & another (Suing for themselves and as Administrators for the Estate of Peter Eloto Larai - Deceased) v Sirite & another (Enviromental and Land Originating Summons E001 of 2023) [2024] KEELC 5886 (KLR)

Environment and Land Court
20 August 2024
KBK. Bor
2,150 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenyan magistrates' courts can now hear adverse possession land claims, so this ELC suit moved to Nyahururu's Chief Magistrate rather than the reverse.

What this practically means

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Executive summary

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The Plaintiffs, suing on their own behalf and as administrators of the Estate of Peter Eloto Larai, had filed an Originating Summons under Section 38 of the Limitation of Actions Act seeking declaratory orders of adverse possession over parcels Marmanet/Melwa Block 1/5769 and 5718 (Muhotetu). By an application dated 19/2/2024 they sought the transfer of Nyahururu CMC ELC Case No E050 of 2022 (an eviction suit brought by the Defendants) to the ELC and its consolidation with this suit. The Defendants opposed, contending that the gazetted Chief Magistrate's Court at Nyahururu had jurisdiction over both adverse possession and title claims within its pecuniary limits under Section 26 of the ELC Act and Section 9 of the Magistrates Court Act. The court identified two competing schools of thought on magistrates' jurisdiction over adverse possession. Holding that Sections 37 and 38 of the Limitation of Actions Act predate the 2010 Constitution and must be construed in conformity with it under Section 7 of Part 2 of the Sixth Schedule, and following the Patrick Ndegwa Munyua decision, the court held that gazetted magistrates with the requisite pecuniary jurisdiction can determine adverse possession claims, with appeals lying to the ELC. Emphasising efficiency, backlog reduction and access to justice under Article 48, the court declined to transfer the magistrate's suit to the ELC; instead it transferred this suit to the Nyahururu Chief Magistrate's Court, granted liberty to apply for consolidation there, and ordered the costs of the application to abide the outcome of the suits.

Key legal issues

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01

Jurisdiction of magistrates' courts over adverse possession claims

Holding

Magistrates' courts duly gazetted under Section 26(3) and (4) of the ELC Act, subject to pecuniary jurisdiction, can determine adverse possession claims; appeals lie to the ELC

Reasoning

Section 38 of the Limitation of Actions Act predates the 2010 Constitution and refers only to the High Court; it must be construed in conformity with the Constitution under Section 7 of Part 2 of the Sixth Schedule. Adverse possession challenges title to land, and Article 169 empowered Parliament to confer land jurisdiction on magistrates through Section 26 of the ELC Act and Section 9 of the Magistrates Court Act. This promotes access to justice under Article 48 and efficiency.

p. 4
02

Whether to transfer and consolidate the two suits

Holding

The ELC suit was transferred to the Chief Magistrate's Court rather than the magistrate's suit being transferred to the ELC; consolidation to be pursued there on application

Reasoning

Since the magistrate's court has jurisdiction over both claims, the interest of justice and judicial economy are served by both suits proceeding before the Chief Magistrate, with consolidation possible once the transferred suit is given a new number.

p. 4

Legal principles established

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  • Gazetted magistrates' courts have jurisdiction, subject to pecuniary limits, to determine claims for adverse possession, Section 38 of the Limitation of Actions Act being construed with adaptations to conform to the 2010 Constitution
  • Sections 37 and 38 of the Limitation of Actions Act, enacted before the 2010 Constitution, must be construed with the necessary alterations, qualifications and adaptations to align them with the Constitution and the existing legal framework

Court orders

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  1. 1.This suit is transferred to the Nyahururu Chief Magistrates Court for hearing and disposal
  2. 2.Once transferred and given a new number, parties will be at liberty to apply to consolidate the suit with Nyahururu CM ELC Case No E050 of 2022
  3. 3.Costs of the application dated 19/2/2024 shall abide the outcome of the suits

Authorities

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Legislation

  • Limitation of Actions ActSections 37, 38
  • Civil Procedure ActSection 18(1)
  • Environment and Land Court ActSections 26(3), 26(4), 27
  • Magistrates Court ActSections 7, 9
  • Constitution of Kenya, 2010Articles 48, 169; Section 7 of Part 2 of the Sixth Schedule

Cases cited (2)

  • Patrick Munyua v Benjamin Kiiru Mwangi & another
    [2020] eKLR
  • Njoki Wainaina alias Mama Kanyoni v Josephat Thuo Gathachira & 3 others
    [2021] eKLR
Jurisdiction invoked
Section 18(1) of the Civil Procedure Act (power to transfer suits), read with Article 169 of the Constitution, Section 26(3) and (4) of the ELC Act and Section 9 of the Magistrates Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Eloto & another (Suing for themselves and as Administrators for the Estate of Peter Eloto Larai - Deceased) v Sirite & another (Enviromental and Land Originating Summons E001 of 2023) [2024] KEELC 5886 (KLR)", Case Analysis (2024). Not stated on the face of the judgment (application dated 19/2/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5886/eng@2024-08-20

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