Chelanga & 3 others v Bundi & 4 others (Environment and Land Appeal E020 of 2023) [2025] KEELC 7054 (KLR)

3. At the trial, Nicholas Onduko Bundi, John Mogaka Bundi, Jumina Juma, and Copernicus Mutoka testified as PW1 – PW4. They relied on a witness statement dated 27/11/2019 as their evidence in chief. 4. PW1 told the court that he, together with his siblings and parents, entered into occupation of Title No. Kapkoi/Mabonde Block 1/Ex-Prison/206, whose registered owner was Ismael Juma Chelanga in December 1999, for their previous home in Tulwet Kitale. PW1 said that they fenced, cut down trees and erected semi-permanent houses, a 2-roomed timber house, and began cultivating assorted crops and keeping cattle. Eventually, PW1 said that his father dug a borehole and a small dam for irrigation during dry seasons. 5. Further, PW1 said that about 2000, they constructed a 5-roomed semi-permanent plastered house. At the time, PW1 said that his brother Alphonse was 20 years while John and Rebecca were 17 and 20 years old. 6. PW1 said that all three of his brothers and sisters, then in primary and secondary schools at St. Joseph's Boys High School, Kitale Academy, Mwencha Academy, and Mt. Elgon Academy, would spend all their school holidays on the suit land. 7. PW1 said that the family continued living on the land until 7/7/2003, when his mother, Grace Bosibori Njoga, died and was buried on the suit land. Similarly, PW1 said that after his father, James Bundi Nyairo Tengeya, died on 11/11/2017, he was also buried therein with elaborate ceremonies, which were also permitted by the area chief, with no objection from anyone. 8. PW1 said that the family was commercially growing maize every year, which it would sell to the National Cereals and Produce Board with permission from the area chief. PW1 said that his late mother was a teacher in a nearby public primary school, and they would sell vegetables, milk, maize, and other farm produce to the local shopping centers and markets. 9. PW1 said that his family and parents were known as owners of the land to an extent that on 11/2/2005, there was a boundary dispute between the suit land and four other neighbouring plots, which was handled by the Land Registrar with his late father being summoned to attend. PW1 said that due to the long occupation, the family was entitled to adverse possession; otherwise, the title held by the beneficiaries to the estate of the late Ismael Juma Chelanga has been extinguished by virtue of Section 38 of the Limitation of Actions Act. 10. PW1 relied on a copy of the title deed, death certificates of his parents, photographs, copy of letter of verification from the agriculture oficer, copy of summons dated 11/2/2005 from the Land Registrar West Pokot, copy of chief’s letter dated 5/7/2019, copy of oficial search certificate dated 15/7/2019, copy of grant of letters of administration for the estate of Ismael Juma Chelanga dated 15/1/2011 and a copy of a confirmation of grant dated 22/11/2011 as P. Exhibit. No. (1) - (10) respectively. PW2, PW3, and PW4 corroborated the evidence of PW1, confirming that they have been in uninterrupted, exclusive, and continuous occupation of the suit land since 1999. 11. Shamira Chepkemei Chelanga testified as DW1. She relies on a witness statement dated 20/12/2019 as her evidence-in-chief. DW1 told the court that she was one of the administrators of the estate of the late Philemon Chelang’a, who was the registered owner of Title No. Kapkoi/Mabonde Block 1/ Ex-Prison/206. 12. DW1 said that before registration, the suit land in 1992, the deceased had appointed one Francis to be in charge of the land before one James Nyairo replaced him in 2000, who settled on the land, at a time the deceased had placed a caution dated 11/8/2000 on the title, to preserve it from any alienation which subsists to date. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7054/eng@2025-10-15 2

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13. DW1 said that the respondents have now erected structures on the suit land; otherwise, their late father was the caretaker of the suit land before he passed on. DW1 said that the occupation of the land by the respondents was consented to by the deceased owner, which licence to occupy terminated with the death, and they ought to vacate the land. 14. DW1 termed the claim for adverse possession as lacking merit since the occupation was consented to and out of a licence by the deceased. DW1 said that her late father passed on in 1996, leaving the late Francis as the caretaker. DW1 said that her late father had erected a structure on the suit land and they would periodically visit the land. DW1 confirmed that most of her late mother and father’s properties had caretakers. 15. After the close of the defence case, the trial court allowed the respondents’ claim. The appellants have appealed against the judgment based on an amended Memorandum of Appeal dated 18/3/2025, among them that the court lacked jurisdiction to entertain the suit. 16. The respondents relied on written submissions dated 30/7/2025, isolating two issues for determination. 17. On jurisdiction, the respondents rely on Sections 26(3) and (4) of the Environment and Land Court Act and Section 9(a) of the Magistrates’ Court Act to state that, as held in Patrick Ndegwa Munyua vs- Benjamin Kiiru Mwangi & Another [2020] eKLR, the lower courts had jurisdiction to deal with adverse possession. 18. It is submitted that the jurisdiction only changed with the holding on Sugawara -vs- Kiruti [2024] KECA 1417 [KLR] (11th October 2024) (Judgment). The respondents submit that the cited authority of Patrick Ndegwa Munyua -vs- Benjamin Kiiru Mwangi & Another (supra) was good law, and being so, there was a legitimate expectation that cases before a new judicial regime, created by statute, would be determined under the law in force at the time. 19. In this case, the respondents submit that they had filed the suit at the Environment and Land Court on 15/7/2019, but it was this court that, suo moto, transferred the suit to the lower court, and they were only notified of the same on 2/6/2021. The respondents submit that they should not be punished for an inadvertent administrative action and or omission of the court. 20. On whether the trial court properly found the claim merited, the respondents submitted that the judgment was found and followed the principles to found adverse possession as held in Chevron (K) Ltd -vs- Harrison Charo Wa Shutu [2016] eKLR and Celina Muthoni Kithinji -vs- Safiya Binti Swaleh & Others [2018] eKLR. 21. The issues calling for my determination are two: 22. (1) If the lower court had jurisdiction to hear and determine the suit. (2) Whether the appeal has merit. (3) What is the order as to costs? A claim for adverse possession is brought on the strength of Section 38 of the Limitation of Actions Act. The court that the Section refers to as having jurisdiction is the High Court. The case of Sugawara -vs- Kiruti (supra) simply restated the law. There has been no change of judicial regime following the Sugawara decision. Unfortunately, the parties herein had their suit transferred to the lower court without their prompting. The mistake cannot be attributable to the parties. Equity sufiers no wrong without a remedy. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7054/eng@2025-10-15 3

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23. Jurisdiction is everything; without it, a court has to put down its tools. See Owners of Motor Vessel Lillian ‘S’ -vs- Caltex Oil (K) Ltd [1989] eKLR. In John Mwangi Karanja -vs- Alfred Ndiangui [2011] eKLR, the court said that if a suit finds itself in the wrong court, it is in the interest of justice and in the interest of all concerned that the suit be forwarded to the appropriate court with jurisdiction so that the issues in dispute can be properly and finally adjudicated. 24. In this appeal, the applicant urges the court to find that the judgment by the trial court was a nullity. Indeed, in Macfoy -vs- United Africa Co. Ltd [1961] 3 ALLER 1169, the court said that a nullity is a nullity. 25. Section 78 of the Civil Procedure Act grants the court powers to hear and determine an appeal finally. Order 43 Rule 25 of the Civil Procedure Rules provides that where the evidence upon the record is suficient to enable the court in which an appeal is preferred to pronounce judgment, the court may, after resettling the issues, finally determine the suit. 26. Unfortunately, the evidence was taken by a court without jurisdiction. Everything done by a tribunal without jurisdiction in law is also a nullity. The court finds that the best cause of action is to declare the proceedings and the judgment at the lower court a nullity. The implications are that there is no suficient evidence available for the court to determine the suit on appeal. The court directs that the matter proceed for hearing before this court on a priority basis. There will be no order as to costs. 27. Orders accordingly. JUDGMENT DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 15TH DAY OF OCTOBER 2025. In the presence of: Court Assistant - Dennis Rotich for Martin for applicant - present Mwangangi for the 1st, 5th Respondents - present HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7054/eng@2025-10-15 4

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