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ELCStruck OutNot stated in the judgment· [2025] KEELC 395 (KLR)

Gitonga v M’Mwirichia & another (Environment and Land Appeal 31 of 2023) [2025] KEELC 395 (KLR)

Environment and Land Court
5 February 2025
OMOGUTTU MBOYA
3,119 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that magistrates' courts cannot decide adverse possession claims, voiding the entire 2023 judgment in this land dispute.

What this practically means

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Executive summary

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This was a first appeal from a Principal Magistrate's Court judgment of 11th September 2023 which had dismissed the Appellant's Originating Summons dated 17th August 2022 seeking a declaration of adverse possession over L.R No. 9434 Antuamburi Adjudication Section. On appeal, the Appellant raised ten grounds attacking the trial court's evaluation of evidence and its treatment of the doctrine of adverse possession. The Appellant argued that his uncontroverted evidence should have been believed; the Respondents countered that the claim conflated fraud and adverse possession, which are mutually inconsistent, and that fraud was neither particularised nor proved. The ELC framed a single issue: whether the Magistrates' Court was seized of jurisdiction to entertain a claim for adverse possession. Relying on Sections 37 and 38 of the Limitation of Actions Act (Cap 22), Article 162(2)(b) of the Constitution, and Section 7 of the Sixth Schedule, the court held that Section 38 vests jurisdiction in the High Court, whose mandate over land disputes transferred to the Environment and Land Court; neither the ELC Act nor the Magistrates Court Act 2015 amended Section 38, so magistrates' courts lack jurisdiction. The court followed the Court of Appeal's decision in Sugawara v Kiruti and its own earlier decision in Njoki Wainaina. Consequentially, the trial proceedings and judgment were declared a nullity ab initio, the appeal was struck out, the lower court's costs order was quashed, and each party was ordered to bear their own costs at both levels. The appellant's underlying adverse possession claim remains undetermined on the merits.

Key legal issues

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01

Whether the Magistrates' Court has jurisdiction over claims for adverse possession

Holding

It does not; Section 38 of the Limitation of Actions Act vests jurisdiction in the High Court, now the Environment and Land Court

Reasoning

Section 38 of the Limitation of Actions Act refers to the High Court only. Following Article 162(2)(b) of the Constitution and Section 7 of the Sixth Schedule, references to the High Court in the pre-2010 statute are read as the Environment and Land Court. Neither the Environment and Land Court Act nor the Magistrates' Court Act 2015 amended Section 38, so magistrates' courts lack jurisdiction. The Court of Appeal in Sugawara v Kiruti so held.

p. 5
02

The legal effect of proceedings conducted by a court without jurisdiction

Holding

They are a nullity ab initio and void, incapable of conferring legal rights

Reasoning

Relying on Phoenix of E.A. Assurance Company Limited v S.M. Thiga t/a Newspaper Service, the court held that a court proceeding without jurisdiction produces a nullity amenable to being set aside ex debito justitiae. Accordingly, the trial court's proceedings and judgment of 11th September 2023 were declared void and the appeal was struck out rather than determined on its merits.

p. 7

Legal principles established

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  • Magistrates' Courts do not have jurisdiction to determine claims of adverse possession
  • Proceedings by a court without jurisdiction are a nullity ab initio

Court orders

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  1. 1.The Appeal herein be and is hereby struck out.
  2. 2.The Proceedings and the resultant Judgment rendered on the 11th September 2023 be and are hereby declared a nullity ab initio.
  3. 3.Each Party shall bear their own costs of the appeal.
  4. 4.The Order of costs awarded to the respondents herein by the lower court be and is hereby quashed.
  5. 5.Each Party shall bear own costs of the proceedings before the magistrates' court (trial court).

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 12, 13, 17, 37 and 38
  • Civil Procedure Rules, 2010Order 42 Rule 13; Order 37
  • Constitution of Kenya, 2010Article 162(2)(b); Section 7 of the Sixth Schedule
  • Magistrates Court ActNoted as 2015 Act; section 7 referenced within Sugawara quotation
  • Environment and Land Court ActReferenced generally

Cases cited (4)

  • Sugawara v Kiruti (Sued in her Capacity as the Administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others
    (Civil Appeal E141 of 2022) [2024] KECA 1417 (KLR) (11 October 2024)
  • Njoki Wainaina vs Josephat Thuo Githachuri & 3 others; National Land Commission & another (Interested Parties)
    [2021] eKLR
  • Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service
    [2019] eKLR
  • Mcfoy versus United Africa Limited
    [1952] ALL ER 1159
On appeal from
Principal Magistrate's Court
Not stated
Jurisdiction invoked
First appeal under Order 42 of the Civil Procedure Rules, 2010; jurisdiction question determined by reference to Sections 37 and 38 of the Limitation of Actions Act (Cap 22), Article 162(2)(b) of the Constitution, 2010 and Section 7 of the Sixth Schedule

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, "Gitonga v M’Mwirichia & another (Environment and Land Appeal 31 of 2023) [2025] KEELC 395 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/395/eng@2025-02-05

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