Mathlida Odemba Owino v Juma Duberia

2 On the basis of the above grounds the Appellant seeks the following reliefs; 1) The Appeal be allowed and the Judgment of the Trial Sub-ordinate Court be set aside with costs. 2) The costs of this Appeal be borne by the Respondent. 3) Such further or other orders as this Honourable Court may deem just and expedient. 3 The court issued directions that the appeal proceeds by way of written submissions which parties complied. Appellant's Submissions 4 The Appellants through the firm of Oduor Oginga Advocates submitted that this being a first appellate court, the court has jurisdiction to reverse or affirm the finding of the trial court and is at liberty unless restricted by law to open the whole case for rehearing both on questions of fact and law. It is further submitted that a litigant is entitled to a full, fair and independent consideration of the evidence at the appellate stage anything less being unjust. 5 It is submitted that the Appellant was aggrieved by the judgment of the trial court which found that the Respondent had acquired the suit parcel by way of adverse possession and was entitled to the orders sought in the pleadings together with costs, the Appellant having been ordered to SIAYA ELCA E019OF 2024 JUDGMENT 2

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transfer the suit parcel to the Respondent or in the alternative for the Land Registrar to sign the same. 6 Counsel submitted that since the Respondent's claim as presented in his Defence and Counterclaim, is anchored on his having proprietary interest in the suit parcel by way of adverse possession the main issue for determination is whether the facts and evidence highlighted in the pleadings as well as the judgment justify the claim for adverse possession and the order of the trial court. 7 Counsel further outlined the legal underpinnings of the doctrine of adverse possession as codified under the provisions of Sections 7 and 13 of the Limitation of Actions Act, Chapter 22, Laws of Kenya, which he reproduced verbatim and further drew guidance from the case of Mtana Lewa v Kahindi Ngala Mwangandi [2015] eKLR, on the nature of adverse possession and its application. 8 It is submitted that from the pleadings and documents filed by both parties, it is without doubt that the Respondent had been confronted on his stay on the parcel of land and that his father categorically intervened to save the situation by offering the Respondent another piece of land in a bid to make him abandon the land belonging to the Appellant. That the witness statements confirm that when the Appellant threatened to repossess the suit parcel, the Respondent threatened to SIAYA ELCA E019OF 2024 JUDGMENT commit suicide and that from the 3

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Respondent's own pleadings it goes without doubt that the suit parcel was obtained forcefully and out of trickery, blackmail and threats and hence the Respondent cannot claim adverse possession. 9 It is submitted that adverse possession mainly touches on ownership of the land and lack of permission from the owner to occupy the property and reliance is placed on Adnam v Earl of Sandwich (1877) 2 QB 485, cited in Wairimu Mburu v Chege Thaiya [2019] eKLR on the object of statutes of limitation, being too quiet long-continued possession where an owner has by default and neglect slept upon his rights for a long time. 10 It is submitted that by virtue of the Respondent's own statements and those of his witnesses, it is clear that he acknowledges that the Appellant had on various occasions interrupted his stay on the land and that instances had arisen when the matter was reported to the area chief. That the Respondent fails to prove when such interruptions occurred and when time started running and that it is on record that it is the Appellant, having exhausted all avenues towards evicting the Respondent who filed the suit hoping to obtain assistance in evicting him. 11 Counsel asserted that this would mean that even if the Respondent had lived on the suit land as alleged waiting for SIAYA ELCA E019OF 2024 JUDGMENT 4

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the Appellant to file suit for eviction amounted to sleeping on his rights and that his claim to adverse possession raised only after the suit had been filed was an afterthought, that the filing of the suit itself amounted to an interruption of quiet possession and he cannot therefore claim adverse possession which the trial court failed to consider. 12 On the requirement of continuous and uninterrupted occupation for a period of at least twelve years, it is submitted that the Respondent having failed to demonstrate the first two elements of adverse possession cannot in any event show that his occupation was continuous and uninterrupted for the statutory period his right, if any, having been extinguished the moment the Appellant reported the matter to the area chief and thereafter filed suit. Reliance is placed on the dictum of Kuloba J. in Gabriel Mbui v Mukindia Maranya, Nairobi Civil No. 283 of 1990, [1993] eKLR where it was held that time does not begin to run against a landowner unless there is some person actually in adverse possession of the land that mere vacancy of the land does not set time running and that the requirement that entry be followed by possession and appropriation to the occupant's use rests on the principle that a right of action cannot accrue unless there is somebody against whom it may be enforced. SIAYA ELCA E019OF 2024 JUDGMENT 5

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13 Counsel asserted that it is clear that the Respondent has never been on the suit parcel for a continuous and uninterrupted period of more than twelve years and that him having been hurriedly registered as owner while the matter was pending appeal, having been served with an order of stay, demonstrates that he was acting illegally and that the trial court failed to consider that the interruptions occasioned during the period of the Respondent's stay extinguished any claim to adverse possession. 14 It is prayed that the appeal be allowed. The Respondent's Submissions 15 The Respondent's submissions are dated 15 th January, 2025 and were filed through the firm of Ngala Awino & Co. Advocates. Therein, counsel identified two issues for determination, namely whether the trial Magistrate failed to consider the arguments of the Appellant and whether the trial Magistrate erred in dismissing the Appellant's suit. 16 On the first issue, whether the trial Magistrate failed to consider the arguments of the Appellant, it is submitted that this position is incorrect, courts generally having the discretion to look at the evidence, pleadings and arguments tendered by both parties before making their findings and that the trial court indeed considered the Appellant's submissions, authorities and evidence on record as illustrated by a look at the judgment. SIAYA ELCA E019OF 2024 JUDGMENT 6

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17 Rehashing excerpts from paragraphs 5,2, 3 and 6 of the judgement it is submitted, the trial court perused and considered both the evidence adduced by the Appellant and the arguments and the submissions by the Appellant. Therefore, it is incorrect for the Appellant to submit that her submissions arguments and evidence were never considered by the trial court when it entered judgment in favour of the Respondent and that based on the above, the trial court did not err in making its judgment and the same should be upheld. 18 On the second issue, whether the trial Magistrate erred in dismissing the Appellant's suit, it is submitted that this argument as listed by the Appellant is not correct, because for a court to make its finding it has the discretion to look at the evidence, pleadings and arguments tendered by both parties, to which case the trial Magistrate considered all the pleadings, evidence and arguments tendered by both the Appellant and Respondent before arriving at the said judgment and further that the Respondent's evidence was uncontroverted. It is submitted that in as much as the Respondent acknowledged that the suit land was registered in the name of the Appellant, the Respondent also demonstrated that he has occupied the suit land for a period in excess of 12 years and that his activities on the suit land have been inconsistent with the interest of the Appellant registered owner. SIAYA ELCA E019OF 2024 JUDGMENT 7

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19 Counsel also impugned paragraph 2 and 3 of the judgment. It is submitted that from the above excerpts of the judgment, it clearly shows that the trial court perused and considered the pleadings, evidence, arguments and the submissions adduced by both the Appellant and the Respondent and that it is incorrect for the Appellant to submit that her pleadings, submissions, arguments and evidence were never considered by the trial court when it entered judgment in favour of the Respondent, yet the judgment is considered conclusive the evidence pleadings, that evidence, the trial court submissions and arguments of both parties. 20 That the trial court's finding that the Respondent had proved his claim for adverse possession was not made in error, the trial court having given consideration to the evidence adduced before it in arriving at a proper conclusion. It is therefore submitted that the Appellant's Appeal has no merit and the same should be dismissed with costs to the Respondent. JURISDICTION 21 Before I delve into the issues for determination, I must make a disclosure. When I sat to prepare this judgement which was scheduled to be delivered on 28/9/2026 I noted on my own motion a jurisdictional issue. It is noteworthy that the jurisdiction of the trial court to entertain the Respondent's SIAYA ELCA E019OF 2024 JUDGMENT 8

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counterclaim for adverse possession was not raised as a preliminary objection before the trial court nor was it canvassed by either party in this appeal. Neither the Memorandum of Appeal nor the rival submissions address the point. 22 It has now been established that a point on jurisdiction may be raised at any stage of proceedings even at appeal when it had not been raised earlier. In Kenya Revenue Authority Vs Hemed & Another (civil Appeal (Application 34 of 2008 (2023) KECA 453 (KLR)) the Court of Appeal reiterated this position and further noted that even the court can raise a jurisdictional issue suo motto and in such a case then the parties should be accorded an opportunity to be heard. 23 In the present case the jurisdictional issue is whether the trial court was vested with the jurisdiction to determine the claim of adverse possession in view of the Court of Appeal decision in Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiruti (Sued in her capacity as the administrator of the estate of Mutarakwa Kirui Lepas alias Mutaragwa Kiruti Lepaso alias Mutarakwa Kiroti Lepaso Civil Appeal E141 of 2022 (2024 KECA 1417 (KLR). 24 I therefore deferred the judgement to 2/10/2026 to enable counsel be heard on the issue. I thus invited Counsels on SIAYA ELCA E019OF 2024 JUDGMENT 9

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record to file and exchange supplementary submissions concurrently by close of business on 30/09/2026. Only Counsel for the Respondent complied. 25 The supplementary submissions are dated 30/9/2026. Essentially it is urged that the provisions of section 26(3)(4) of the environment and Land Court Act read together with section 9(a) of the Magistrates Court conferred such jurisdiction to a Magistrate duly gazetted subject to the requisite pecuniary jurisdiction. That the trial court was seized with jurisdiction based on the prevailing jurisprudence then as seen in Patrick Ndegwa Munyua Vs. Benjamin Kiiru Mwangi & Another (2020) KEELC 3911 and Philip Kithaka Vs Mercy Karimi Nyaga (2021) KEHC 5202 (KLR). 26 Referring to the Court of Appeal decision in Pauline Sugawara (supra) and while noting the same to be binding upon this court, however the Respondent should not be prejudiced by the change in jurisprudence. That the Appellants original claim was properly before the Magistrates court and the defence and counterclaim were filed before the said Court of Appeal decision. The Court is urged to dismiss the appellant’s appeal. ANALYSIS AND DETERMINATION 27 I will proceed to decide the fundamental issue of jurisdiction. SIAYA ELCA E019OF 2024 JUDGMENT 10

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28 In Peterson Ndung'u, Stephen Gichanga Gituro, N. Ojwang, Peter Kariuki, Joseph M. Kyavi & James Kimani v Kenya Power & Lighting Company Ltd [2018] eKLR the Court of Appeal addressing the duty resting on a first appellate court, held as follows: " ………………..This being a first appeal, we are reminded of our primary role as a first appellate court, namely reanalyze the to re-evaluate, extracts on re-assess record and and then determine whether the conclusions reached by the learned trial magistrate are to stand or not and give reasons why...............On a first appeal, the appellate court should consider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly, the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence……...." 29 Further, Section 78 of the Civil Procedure Act provides; "Subject to such conditions and limitations as may be prescribed, an appellate court shall have power; (a) to determine a case finally; (b) to remand a SIAYA ELCA E019OF 2024 JUDGMENT 11

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case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require the evidence to be taken; (e) to order a new trial. (2) Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein." 30 The above duty however is subject to a question which this court must first resolve, namely whether the trial court was itself competent to hear and determine the claim now sought to be re-evaluated since if it was not, no amount of re-evaluation of the evidence can cure that defect. 31 It is trite that an objection to jurisdiction ought ordinarily to be raised at the earliest opportunity, without jurisdiction a court cannot move any further step in a matter in the absence of jurisdiction as stated in Owners of Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Limited [1989] KLR 1, it was further held that: “It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty SIAYA ELCA E019OF 2024 JUDGMENT 12

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or limited facts constitute the evidence before the court.” 32 Section 13 of the Environment and Land Court Act provides that: “The court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) In exercise of its jurisdiction under article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes— (a) relating to environmental planning and protection, climate issues, land boundaries, use rates, planning, rents, title, tenure, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land.” SIAYA ELCA E019OF 2024 JUDGMENT 13

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33 However, the jurisdiction of the Magistrates' Courts over such disputes is not general but specifically delegated. Section 26(3) and (4) of the Environment and Land Court Act, 2011 provide that: "(3) The Chief Justice may, by notice in the Gazette, appoint certain magistrates to preside over cases involving environment and land matters of any area of the country. (4) Subject to Article 169(2) of the Constitution, the Magistrate appointed under sub-section (3) shall have jurisdiction and power to handle a. disputes relating to offences defined in any Act of Parliament dealing with environment and land; and b. matters of civil nature involving occupation, title to land, provided that the value of the subject matter does not exceed the pecuniary jurisdiction as set out in the Magistrates' Courts Act." 34 A materially identical framework appears in Section 9(a) of the Magistrates' Courts Act, 2015, under which a gazetted Magistrate's Court, subject always to the pecuniary limits prescribed in Section 7(1) of that Act, is empowered to hear and determine claims touching on: "...i. environmental planning and protection, climate issues, land use planning, title, tenure, SIAYA ELCA E019OF 2024 JUDGMENT 14

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boundaries, minerals rates, and compulsory rents, valuations, other natural acquisition of administration and mining, resources; land; management; iii. iv. ii. land public, private and community land and contracts, chose in action or other instruments granting any enforceable interests in land; and v. environment and land generally." 35 In light of the above provisions, a gazetted Magistrate's Court is plainly no stranger to land disputes it may lawfully determine ordinary questions of occupation, title, tenure and boundaries so long as the value of the claim falls within its pecuniary limits. 36 Adverse possession, however, stands apart. Arising specifically and exclusively under Sections 37 and 38 of the Limitation of Actions Act and nowhere listed among the heads of claim assigned to the Magistrates' Courts under Section 9(a), it remains a matter reserved exclusively for the Environment and Land Court under Article 162(2)(b) of the Constitution. 37 In the present suit the Appellant in response to the plaintiff’s suit in the trial court raised a defence and counterclaim dated 8th October 2021 wherein he averred that he had been living on parcel East Ugenya/Kathieono ‘B’/36 since the year SIAYA ELCA E019OF 2024 JUDGMENT 15

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2002 to date in open continuous and exclusive possession of the said parcel. That he had acquired the parcel by way of adverse possession and sought such declaration and cancellation of the plaintiff’s title in the main suit. The trial court upheld the claim in the Counterclaim. 38 I must point out that I agree with Counsel for the Respondent that the suit as filed in the trial court was competent in terms of jurisdiction. However, the problem arose when the defence raised a counterclaim. 39 This issue on jurisdiction traces back to Sections 37 and 38 of the Limitation of Actions Act, which in express terms confer on the High Court and ELC as court of equal status and not any other court the power to hear and determine claims of this nature. 40 In particular, section 38 of the Limitation of Actions Act provides: “(1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of SIAYA ELCA E019OF 2024 JUDGMENT 16

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the land or lease in place of the person then registered as proprietor of the land. (2) … (3) … (4) The proprietor, the applicant and any other person interested may apply to the High Court for the determination of any question arising under this section. (5) …” 41 There are a number of decisions by judges of the Environment and land court which support the above position and I will highlight only two. 42 In the case of Njoki Wainaina v Josephat Thuo Githachuri & 3 others; National Land Commission & another (Interested Parties) [2021] eKLR Mboya, J held that: “The magistrate’s court, are not seized with jurisdiction to adjudicate upon claims founded on adverse possession on the face of the explicit provisions contained in sections 37 & 38 of the Limitation of Actions Act.” SIAYA ELCA E019OF 2024 JUDGMENT 17

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43 Similarly, in Reuben v Mwangangi & 7 others (Environment & Land Case E011 of 2023) [2023] KEELC 21899 (KLR) Yano, J expressed: “I am aware that there exists within the magistrate’s court, duly gazetted magistrates who are granted jurisdiction and power to handle cases involving occupation of and title to land. I am however, not persuaded that the magistrates courts have jurisdiction to adjudicate title on account of adverse possession. It is therefore my finding that the learned trial magistrate rightly declined jurisdiction over the respondents’ claim of adverse possession”. 44 The jurisdiction of the Magistrates Court to handle claims of adverse possession was clarified by the Court of Appeal in the case of Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiruti (Sued in her capacity as the administrator of the estate of Mutarakwa Kirui Lepas alias Mutaragwa Kiruti Lepaso alias Mutarakwa Kiroti Lepaso Civil Appeal E141 of 2022 (2024 KECA 1417 (KLR). 45 In the judgement delivered on 11/10/2024 the Court of Appeal discussed various decisions of the ELC court on the Jurisdiction of the Magistrates Court to handle claims of SIAYA ELCA E019OF 2024 JUDGMENT 18

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adverse possession. These covered those in support of the proposition that the Magistrates Court is vested with Jurisdiction and decisions against, but with more recent decisions in the year 2023 taking the position that the Magistrates Courts are not seized with jurisdiction to adjudicate upon claims founded on adverse possession on the face of explicit provisions contained in section 37 & 38 of the Limitation of Actions Act cap 22 of the Laws of Kenya. 46 The Court of Appeal held that the Magistrates court lacked jurisdiction to hear matters under the provisions of section 37 and 38 of the Limitation of Actions Act. 47 In clarifying the law, the learned Judges held thus; ‘“Notwithstanding the expansion of the jurisdiction of environment and land usage to the Magistrates Courts, it is instructive that under Section 9 (a) of the Magistrates Court Act, various matters are specified for determination, but claims for adverse possession are not included in that section. And that, it is only the Environment and Land Court which has jurisdiction to hear and determine claims for adverse possession.” 48 Further post Pauline Sugawara (supra) in the court in Kimeto v Omwomo (Environment and Land Appeal E004 of 2024) [2024] KEELC 13848 (KLR) in dismissing the appeal the court persuasively stated; - SIAYA ELCA E019OF 2024 JUDGMENT 19

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‘In arriving at its decision, the Court of Appeal noted that the predominant view of the Environment and Land Court was that the Magistrates’ Courts have no jurisdiction to hear and determine cases of Adverse Possession. In particular, the Court cited the cases of Jesse Njoroge Gitau v Kibuthu Macharia & Another ( 2019) eKLR; Michael Chebii Toroitich v Peter Mogin Yatich Chebii ( 2013) eKLR; Njoki Wainaina v Josephat Thuo Githachiri & 3 Others, National Land Commission and Another Interested Parties (2021) eKLR and Reuben v Mwanagangi & 7 Others v ELC Case No. E011 of 2023 (2023) KEELC 21899 (KLR) where the Court arrived at that finding that Magistrates’ Courts do not have the jurisdiction to hear and determine cases of adverse possession.’ 49 These courts hands are tied. The Magistrates' Courts do not have jurisdiction to determine claims of adverse possession. Therefore, the judgement of Hon Tsimonjero cannot stand. This court is guided in this regard by the pronouncement of the Court of Appeal in Desai v Warsama [1967] EA 351 it was ruled that; “No court can confer jurisdiction upon itself and where a court assumes jurisdiction and proceeds to hear and determine a matter not within its jurisdiction, the proceedings and the determination are nullities.” SIAYA ELCA E019OF 2024 JUDGMENT 20

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50 Having made the above finding what then would be the best cause of action in the circumstances? 51 It is my considered view that this court should decline to review the merits of the trial court's finding on adverse possession or the remaining grounds of appeal touching on the evaluation of the evidence and the alleged disregard of the principles of justice since to pronounce on them would be to breathe life into a judgment that is void ab initio. It does not matter that the plaintiffs claim was properly before the court. Moreover, the plaintiffs claim and the counterclaim cannot be severed the subject matter being the same. The proper course which will attain justice for both parties, jurisdiction being wanting from the outset, is to set aside the judgment of the trial court in its entirety and to leave the parties to pursue, if they so wish, their respective claims to the suit parcel afresh before the ELC court in the exercise of its original jurisdiction. 52 Who bears the costs of this appeal? It is trite that costs follow the event. However, the same are discretionary. The jurisdictional defect that has disposed of this appeal is not attributable to either party. Based on the facts and circumstances of this case, I think it would be prudent that each party bears its own costs of this appeal. 53 The appeal is disposed of by making the following orders; - SIAYA ELCA E019OF 2024 JUDGMENT 21

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1) The Appeal be and is hereby dismissed. 2) The Judgment of Hon. E. Tsimonjero, Senior Resident Magistrate delivered on 27th June, 2024 in Ukwala PM ELC No. E045 of 2021 be and is hereby declared a nullity and set aside in its entirety for want of jurisdiction. 3) The parties to bear their own costs of this appeal. Delivered and Dated This 2nd Day of October 2026 HON. LADY JUSTICE A.E. DENA JUDGE 02/10/2026 Judgement delivered virtually through Microsoft teams Video Conferencing Platform in the presence of: M/s Nyakongo for the Respondent Mr. Oginga for appellant Court Assistant: Victor Bwire. SIAYA ELCA E019OF 2024 JUDGMENT 22

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