Chelanga & 3 others v Bundi & 4 others (Environment and Land Appeal E020 of 2023) [2025] KEELC 7054 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled magistrates' courts cannot decide adverse possession claims, voiding a land judgment and sending the case back for a fresh hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the magistrates' court had jurisdiction over an adverse possession claim under Section 38 of the Limitation of Actions Act
The trial court lacked jurisdiction; Section 38 vests jurisdiction over adverse possession claims in the High Court, and magistrates' courts lack competence over such claims.
The court held that Section 38 of the Limitation of Actions Act designates the High Court as the forum for adverse possession claims. The Sugawara v Kiruti decision merely restated existing law; no change of judicial regime occurred that would have given the lower court jurisdiction at the time. The suit had been transferred suo moto by the ELC, so the parties bore no fault, but the proceedings remained a nullity.
What remedy follows from the nullity of the trial proceedings
The proceedings and judgment were declared a nullity and the suit remitted for hearing de novo before the ELC on a priority basis.
Since the evidence was taken by a court without jurisdiction, nothing of value remained on record for the appellate court to determine the appeal. Invoking Section 78 of the Civil Procedure Act and Order 43 Rule 25, the court found the appropriate course was to nullify the proceedings and direct a fresh hearing before itself on a priority basis, with no order as to costs given the parties' lack of fault.
Legal principles established
#- Jurisdiction is foundational; without it a court cannot act.
- Proceedings and judgments of a court without jurisdiction are a nullity.
- A mistake in transfer of a suit by the court itself is not attributable to the parties and equity demands a remedy.
Court orders
#- 1.The proceedings and judgment of the lower court are declared a nullity for want of jurisdiction.
- 2.The matter shall proceed for hearing before this court (ELC Kitale) on a priority basis.
- 3.No order as to costs.
- On appeal from
- Magistrates' Court (suit transferred suo moto from the Environment and Land Court on 7/4/2021)
- Jurisdiction invoked
- Sections 26(3) and (4) of the Environment and Land Court Act; Section 9(a) of the Magistrates' Court Act; Section 78 of the Civil Procedure Act; Order 43 Rule 25 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chelanga & 3 others v Bundi & 4 others (Environment and Land Appeal E020 of 2023) [2025] KEELC 7054 (KLR)", Case Analysis (2025). Amended Memorandum of Appeal dated 18/3/2025 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7054/eng@2025-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.