- This ruling pertains to; (a) The Chamber Summons dated 10th January 2025 generated under sections 3A and 18 of the Civil Procedure Act Chapter 21 Laws of Kenya by the applicant, Alice Chelagat Chirchir through Isiaho Sawe and Company Advocates (The application) and (b) The preliminary objection dated 17th January 2025 by the respondents through C.F Otieno and Company Advocates.
- In the Chamber Summons, the applicant is seeking the orders infra; (a) Spent (b) THAT Kapsabet Chief Magistrate ELC case Number E027 of 2023 be transferred to this court for hearing and final disposal.
- The application is founded upon ten grounds on the face of the same as well as the annexed affidavit of the applicant. The grounds include;
(a) Kapsabet Chief Magistrate ELC case Number E027 of 2023 was instituted by the Applicant seeking inter alia adverse possession.
(b) The choice of forum was made by the counsel on record.
(c While there are authorities that vest in the subordinate courts the jurisdiction to hear and determine issues on adverse possession that position has now been clarified by the superior court hence rendering the transfer of the above case to this court necessary.
(d) Mistakes of counsel ought not be visited on an innocent litigant in this regard, the Applicant.
4. The respondents raised the preliminary objection to the application premised on the following grounds; (a) The ELC High Court has no jurisdiction to transfer to itself or to any other court any matter or case that has been filed in court which court itself lacks jurisdiction to try it. (b) This Honourable court’s hands are tied in as far as the transfer of KAPSABET CM ELC NO. E027 of 2023 is concerned. (c) This Honourable court ought to strike out and / or dismiss KAPSABET CMC ELC NO. E027 of 2023 with costs to the Respondent suo moto as being a gross abuse of the court process.
5. Having heard counsel for the respective parties on 29th January 2025, the court ordered and directed that the application and the preliminary objection, be heard by way of written submissions.
6. Consequently, in the submissions dated 18th March 2025, learned counsel for the applicant provided brief facts of the case which capture the orders sought in the application, the parties’ respective cases, the jurisdiction of this court under Articles 162 (2) of the Constitution of Kenya 2010 and that of the High Court under Article 165 (5) of the same Constitution. It was submitted in part, that adverse possession claim before the magistrate’s court must be brought to this court which is the right forum and the proceedings in the succession cause have been held in abeyance. Counsel cited, inter alia, Mukisa Biscuits Manufacturing Co. Ltd-vs-West End Distributors Ltd (1969) EA 696, Quick Enterprises Ltd-vs-Kenya Railways Corporation, Kisumu High Court Civil Case No. 22 of 1999 and Kagenyi-vs-Musiramo and another (1968) EA 43,to fortify the submissions. That the preliminary objection requires the calling of facts and does not meet the threshold, lacks merit and should be dismissed with costs to the applicants.
7. By the submissions dated 20th January 2025, learned counsel for the respondents made reference to the orders sought in the application, the replying affidavit and submitted that the applicant admitted that she was not in occupation of the original land reference number Nandi/Chepterit/1256. Reliance was made on Order 37 Rule 7 of the Civil Procedure Rules 2010, section 38 of the Limitation of Actions Act Chapter 22 Laws of Kenya, section 18 of the Civil Procedure Act Chapter 21 Laws of Kenya, sections 13 and 18 of the Environment and Land Court Act 2015 (2011) as well as case law which include; New Wangingi Hotel-vs-Kabungo (1968) EA 47, Ismail Adawa Edo and another-vs-Sameha Kassim Sheikh & 4 others (2004) eKLR and Wangubaoulula Samuel-vs-Nancy Chepkoech Rono (2023) eKLR. So, it was submitted that the application is unmerited and should be dismissed as the suit was filed in the magistrate’s court which does not have jurisdiction over the same.
8. In the foregone, the following issues fall for determination; (a) Does the applicant deserve the orders sought in the application? (b) Is the preliminary objection sustainable? (c) Depending on the outcome in (a) and (b) above, what orders can be issued to meet the ends of justice herein?
9. The applicant averred in paragraph 2 of her affidavit in support of the application that she instituted Kapsabet Chief Magistrate’s court seeking, inter alia, adverse possession. She annexed to the application, an amended plaint dated 13th June 2023 in the said suit (Marked ‘A’ ) that she has acquired one acre comprised in the suit parcels of land, LR Numbers Nandi/Chepterit/2285 and 2286 by adverse possession having utilized them from the year 2010 to March 2023.
10. At paragraphs 10 A and 10B in the amended plaint, the applicant claims ownership of the suit parcels of land by way of adverse possession. The same claim is mirrored in relief number (aa) at the foot of the amended plaint.
11. It is common baseline that the suit before the magistrate’s court relates to adverse possession.
12. The respondents asserted that this court is devoid of jurisdiction over the suit before the trial court. That thus, this cannot transfer the suit to itself.
13. In the case of Republic-vs-Karisa Chengo & 2 others (2017) eKLR, the Supreme Court of the Republic of Kenya held;
‘…Lack of jurisdiction renders a court’s decision void as opposed to it being merely voidable......’
14. In paragraph 4 of the applicant’s affidavit in support of the application, she averred , inter alia;
‘……..there are authorities that vest jurisdiction in the subordinate courts to hear and determine issues touching on adverse possession….’
15. Indeed, superior courts had held that the magistrates’ court had jurisdiction over claims for adverse possession; see Patrick Ndegwa Munyua-vs-Benjamin Kiiru Mwangi and another (2020) and Mary Wanjiru Eloto & another-vs-Lotin Edapal Sirite & another (2024) eKLR annexed to the applicant’s submissions, among other authorities.
16. Besides, it is settled law that adverse possession claims fall within the jurisdiction of this court and not the magistrates’ courts; see Sugawara-vs-Kiruti (Sued in her capacity as the administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutarakwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity & 3 others (2024) eKLR .
17. Clearly, the suit before the magistrate’s court was lodged in June 2023. I note persuasive decisions including the ones cited in the parties’ respective submissions on jurisdiction as regards adverse possession. However, the said jurisdiction has been settled as per the decision in Sugawara case (supra). Taking into account the nature of the suit at the magistrate’s court, the obtaining circumstances and the ends of justice as enshrined under, inter alia, Articles 25 (c), 48, 50 (1) of the Constitution of Kenya 2010, sections 3, 3A and 18 of the Civil Procedure Act Chapter 21 Laws of Kenya and sections 3 and 19 of the Environment and Land Court Act 2015 (2011), the applicant is entitled to the orders sought in the application.
18. On that score, I find the application meritorious and the preliminary objection not sustainable.
19. A fortiori, the application dated 10th January 2025, be and is hereby allowed in terms of the prayers (b) and (c) therein as set out in paragraph 1 (b) and (c) hereinabove.
20. It is so ordered.
DATED and DELIVERED at KAPSABET this 4th day of June 2025.
G M A ONGONDO
JUDGE
PRESENT;
- Mr C . F Otieno learned counsel for the respondents
- Walter, court assistant