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ELCDismissedELD ELC (Misc. Application) - Notice of Motion dated 17th January 2025· [2025] KEELC 3391 (KLR)

Biwott & another v Amin; Tanui (Interested Party) (Miscellaneous Application E004 of 2025) [2025] KEELC 3391 (KLR)

Environment and Land Court
24 April 2025
CYC. K. Yano
4,651 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Adverse possession claims in Kenya must be filed in the Environment and Land Court; suits filed in magistrates' courts are invalid and cannot be transferred.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (C. K. Yano, J) disposed of the Applicants' Notice of Motion dated 17th January 2025 seeking transfer of Eldoret MCELC No. E012 of 2023 (OS), an adverse possession claim over land parcel Eldoret Municipality Block 12/31, from the Chief Magistrate's Court to the ELC. The Applicants argued that although the Court of Appeal in Nairobi Civil Appeal No. E141 of 2022 (Sugawara vs Kiruti) declared that magistrates' courts lack jurisdiction over adverse possession claims, their suit predated that decision and should be transferred to avoid injustice and to enable consolidation with ELD ELC No. E028 of 2021 (OS) in which the Interested Party also claims adverse possession. The Respondent opposed, contending there was no competent suit capable of transfer, that the magistrates' court never had jurisdiction, and that the application was a veiled attempt to defeat a competency challenge. The court framed three issues. It held that no statute vests adverse possession jurisdiction in magistrates' courts; Section 38(1) of the Limitation of Actions Act, read with Section 13 of the ELC Act, confers that jurisdiction on the ELC. The Court of Appeal's decision clarified rather than divested jurisdiction, and no retrospective application arises on jurisdictional questions. Relying on Section 18 of the Civil Procedure Act and authority including Equity Bank vs Mutie and Macharia vs Kenya Commercial Bank, the court held an incompetent suit filed without jurisdiction is a nullity that cannot be transferred or cured by the overriding objective. The Applicants remain free to file afresh without triggering res judicata. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Jurisdiction of Magistrates' Courts over adverse possession claims

Holding

Magistrates' Courts have no jurisdiction to entertain adverse possession claims; the jurisdiction lies with the ELC by virtue of Section 38(1) of the Limitation of Actions Act and Section 13 of the ELC Act, and the Court of Appeal in Sugawara vs Kiruti so clarified.

Reasoning

The court analysed Section 7(3) and Section 9(a) of the Magistrates' Court Act and Section 26(3) and (4) of the ELC Act, finding no express statutory conferral of adverse possession jurisdiction on magistrates. The Court of Appeal in Sugawara vs Kiruti held only the ELC is mandated to hear such cases. The court held the Court of Appeal decision did not divest jurisdiction but clarified the magistrates never had it.

p. 6
02

Whether the ELC can transfer a suit filed in a court without jurisdiction

Holding

No. The power under Section 18 of the Civil Procedure Act applies only to competent suits filed in courts seized of jurisdiction; a suit filed without jurisdiction is a nullity and cannot be transferred or remedied by the overriding objective.

Reasoning

Relying on Equity Bank vs Mutie, Albert Chaurembo Mumba (quoting Kagenyi vs Musiramo), and Phoenix of E.A. Assurance vs Thiga, the court held that transfer would sanctify an incompetent suit. Lack of jurisdiction is not a procedural technicality curable under Sections 1A, 1B and 3A of the Civil Procedure Act. The Applicants may file afresh without triggering res judicata.

p. 8
03

Retrospectivity of the Court of Appeal jurisdictional decision

Holding

The Court of Appeal's decision is not applied retrospectively; jurisdiction is a matter of law that existed all along, so the decision clarifies rather than changes the law.

Reasoning

The court held that the Limitation of Actions Act was always clear on the competent court, that prior judicial indulgence of magistrates' adjudication of adverse possession could not confer jurisdiction, and that courts are bound by stare decisis. Sympathy or judicial craftsmanship cannot confer jurisdiction.

p. 6

Legal principles established

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  • A suit cannot be transferred to another court unless it was commenced in a court with jurisdiction; a suit filed without jurisdiction is a nullity and not transferable.
  • Magistrates' Courts have no jurisdiction to determine claims of adverse possession; such claims lie in the ELC under Section 38(1) of the Limitation of Actions Act read with Section 13 of the ELC Act.
  • There can be no retrospective application where matters of jurisdiction are concerned.

Court orders

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  1. 1.The application dated 17th January, 2025 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 169(2)
  • Constitution of KenyaArticle 159
  • Magistrates' Court ActSections 7(3), 9(a)
  • Environment and Land Court ActSections 13, 26(3), 26(4)
  • Limitation of Actions ActSection 38(1)
  • Civil Procedure ActSections 1A, 1B, 3A, 18(1)

Cases cited (14)

  • Patrick Ndegwa Munyua vs Benjamin Kiiru Mwangi & Another
    (2020) eKLR
  • Eloto & Another (Suing for themselves and as Administrators of the Estate of Peter Eloto Larai - Deceased) vs Sirite & Another
    (Environment and Land Originating Summons E001 of 2023) (2024) eKLR
  • Re Estate of Mutugi Mbutii (Deceased)
    (2018) eKLR
  • Protus Hamisi Wambada & Another vs Eldoret Hospital
    (2020) eKLR
  • National Examination Board, HC Civil Misc. Application No. 18 of 2010
  • Phoenix of E.A. Assurance Company Limited vs S. M. Thiga t/a Newspaper Service
    [2019] eKLR
  • Gaikia Kimani Kiarie vs Peter Kimani Kiramba
    (2020) eKLR
  • Macharia & another vs Kenya Commercial Bank Limited & 2 others
    (2012) KESC 8 (KLR)
  • Sugawara vs 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
    [2024] KECA 1417 (KLR)
  • Owners of Motor vessel Lillian 'S' vs Caltex Kenya Limited
    (1989) KLR
  • Equity Bank Limited vs Bruce Mutie Mutuku t/a Diani Tour Travel
    (2016) eKLR
  • Albert Chaurembo Mumba and 7 Others vs Maurice Munyao & 148 Others
    (2019) eKLR
  • Kagenyi vs Musiramo & Another
    (1968) EALR 43
  • Macfoy vs United Africa Co Ltd
    (1961) 3 All ER 1169
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Sections 13 and 26 of the Environment and Land Court Act; Section 18 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Biwott & another v Amin; Tanui (Interested Party) (Miscellaneous Application E004 of 2025) [2025] KEELC 3391 (KLR)", Case Analysis (2025). ELD ELC (Misc. Application) - Notice of Motion dated 17th January 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3391/eng@2025-04-24

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