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ELCPartially AllowedEnvironment and Land Court Appeal (Kisii) – arising from Kisii ELC No. 145 of 2017 / Kisii CMCC/ELC No. 90 of 2019· [2025] KEELC 4128 (KLR)

Maenya [Suing as a Personal Representative to the Estate of Maenya Onsabwa - Deceased) v Oirere & 2 others (Environment and Land Appeal E007 of 2023) [2025] KEELC 4128 (KLR)

Environment and Land Court
21 May 2025
1,857 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court nullified a magistrate's land judgment, confirming only the Environment and Land Court can decide adverse possession claims.

What this practically means

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Executive summary

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The appellant, suing on behalf of the estate of his late father Maenya Onsabwa, filed Kisii ELC No. 145 of 2017 seeking eviction and a permanent injunction against the defendants over parcel Majoge/Bosoti/906. The defendants filed a joint defence and counterclaim asserting registration error and adverse possession since 1969. On 1 July 2019 Mutungi J transferred the suit to the Chief Magistrates' Court at Kisii, where it was registered as Kisii CMCC/ELC No. 90 of 2019. On 10 February 2023 the trial Magistrate dismissed both the suit and the counterclaim, finding adverse possession established but declining relief because the 1st defendant had died without substitution and succession had not been done, with each party bearing own costs. On appeal, counsel for the appellant argued, citing Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiruti & 3 Others, that the Magistrates' Court lacked jurisdiction over adverse possession, while the respondents relied on Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi. The court, bound by the Court of Appeal's decision in Sugawara, held that Magistrates' Courts have no jurisdiction to determine adverse possession claims under section 38 of the Limitation of Actions Act. The transfer by Mutungi J was therefore an error apparent on the face of the record; the magistrate's proceedings and judgment were null and void ab initio. The court set aside the transfer order, nullified and set aside the proceedings and judgment, reinstated Kisii ELC No. 145 of 2017 to proceed from where it had reached, and made no orders as to costs. The merits were left for determination by the ELC.

Key legal issues

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Jurisdiction of Magistrates' Courts over adverse possession claims

Holding

Magistrates' Courts lack jurisdiction to determine adverse possession claims; such claims lie only in the Environment and Land Court

Reasoning

Relying on the Court of Appeal's binding decision in Pauline Chemuge Sugawara, the court held that section 38 of the Limitation of Actions Act confines adverse possession claims to the ELC. Magistrates' Courts' jurisdiction is largely pecuniary under section 7 of the Magistrates' Courts Act, and land value in adverse possession claims may be unknown or exceed their pecuniary limits. The lower court decision of Ohungo J to the contrary is untenable.

p. 3
02

Effect of transfer of a suit to a court without jurisdiction

Holding

The transfer order was an error apparent on the face of the record; proceedings and judgment before the Magistrates' Court are null and void and must be set aside, with the original ELC suit reinstated

Reasoning

The suit was properly filed in the ELC, which had jurisdiction. The trial judge's transfer to the Magistrates' Court rested on an erroneous belief that the latter had jurisdiction. Since the receiving court was devoid of jurisdiction, the entire proceedings were a nullity ab initio, and the parties must be restored to their position before the transfer, with the suit proceeding on its merits in the ELC.

p. 3

Legal principles established

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  • Magistrates' Courts do not have jurisdiction to hear and determine claims of adverse possession, which are reserved to the Environment and Land Court under section 38 of the Limitation of Actions Act
  • Proceedings heard and a judgment entered by a court devoid of jurisdiction are null and void ab initio and must be set aside

Court orders

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  1. 1.The order transferring the suit Kisii ELC No. 145 of 2017 to the Magistrates' Court is reviewed and set aside
  2. 2.The proceedings and judgment of the Chief Magistrates' Court Kisii in Kisii CMCC No. 90 of 2019 are declared null and void and set aside
  3. 3.Suit Kisii ELC No. 145 of 2017 is reinstated and to proceed from where it had reached before the transfer order
  4. 4.No orders as to the costs of the appeal

Authorities

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Legislation

  • Limitation of Actions Actsection 38
  • Magistrates' Courts Actsection 7

Cases cited (2)

  • Pauline Chemuge Sugawara vs Nairuko Ene Mutarakwa Kiruti & 3 Others
    Court of Appeal at Nairobi, Civil Appeal No. E141 of 2022, judgment of 11 October 2024
  • Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & another
    (2020) eKLR
On appeal from
Chief Magistrates' Court at Kisii
Kisii CMCC/ELC No. 90 of 2019
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from the Magistrates' Court; original suit commenced in the ELC under section 38 of the Limitation of Actions Act (adverse possession)

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, "Maenya [Suing as a Personal Representative to the Estate of Maenya Onsabwa - Deceased) v Oirere & 2 others (Environment and Land Appeal E007 of 2023) [2025] KEELC 4128 (KLR)", Case Analysis (2025). Environment and Land Court Appeal (Kisii) – arising from Kisii ELC No. 145 of 2017 / Kisii CMCC/ELC No. 90 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4128/eng@2025-05-21

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