JACK NDISI ONDIEK VS SAMSON JUMA OKOTH

(Being an appeal from the ruling of the Principal Magistrate Hon. E. M. Onzere (PM) delivered on the 16th April, 2024 in Ndhiwa ELC No. E014 of 2022)
       INTRODUCTION
1. This is an appeal arising from the ruling of Honourable E. M. Onzere, Principal Magistrate delivered on 16th April, 2024 in Ndhiwa ELC No. E014 of 2022.
2. The Appellant filed a Memorandum of Appeal dated 2nd May, 2024 appealing against the said ruling on the following grounds:-
1. The Learned Magistrate completely misunderstood the evidence before wrongly analyzed the evidence thus dismissing the plaintiff's case.
2. The Learned Magistrate erred in law and fact by failing to appreciate the totality of the evidence before her and the submissions made on behalf of the Appellant thus reaching a conclusion that was contrary to the evidence before him.
3. The Learned Magistrate erred in law in failing to follow the law as established through judicial precedent.
4. The Learned Magistrate totally misunderstood and wrongly evaluated the evidence before her and therefore arrived at a wrong conclusion.
3. The Appellant seeks orders allowing the appeal and setting aside the trial magistrate’s judgment dated 16th April, 2024. He also prays for costs of the appeal.
BRIEF FACTS
4. The Appellant had filed a suit against the Respondents vide a plaint dated 29th June, 2022 alleging that the Respondents had trespassed onto the suit property and taken possession of his property. He sought for an order of eviction and a permanent injunction against the Respondents.
5. The Defendants, in response, filed their Statement of Defence and Counter claim dated 13th January, 2023. They claimed that they had acquired the suit land by way of adverse possession.
6. The suit was heard and the trial magistrate in her judgment dated 16th April, 2024 dismissed the Appellant’s case for failure to prove his case on a balance of probabilities.
7. The Appellant being dissatisfied with the ruling filed the present appeal which was canvassed by way of written submissions.
Submissions
8. Counsel for the Appellant filed his submissions dated 12th March, 2025 where he identified four issues for determination. The first issue was whether the Appellant illegally acquired the suit parcel. He relied on Section 24, 25 and 26 of the Land Registration Act and the case of Dr. Joseph Arap Ngok V Justice Moijo Ole Keiwa & 5 Others Civil Appeal No. CA 60 OF 1997. He submits that the Appellant produced a duly executed transfer and title deed as evidence of the procedure used to acquire the title. He also submits that the Respondents did not rebut the claim.
9. The second issue was whether the Respondents fraudulently acquired titles are illegally in possession of the suit parcel. He submits that the trial court in Ndhiwa Criminal Case No, 132 of 2020 found that the transfer of the suit property to the Respondents was fraudulently done. He relied on the case of Alberta Mae Gacci V Attorney General & 4 Others (2006) eKLR and submits that the titles held by the Respondents fell under the category of titles that ought to be impeached as it was fraudulently acquired.
10. The third issue was whether the purported sale agreements are valid or void thus unenforceable by operations of the law Section 6, 7 and 8 of the Land Control Board Act. While submitting in the affirmative, counsel relied on Section 6 and 8 of the Land Control Act.
11. The fourth issue was whether the counter claimants have sued the correct party. He submits that the counter claim creates a mis joinder as the Appellant has been mis joined. He argues that there was no nexus between him and the alleged sale agreements.
12. The final issue was whether the Respondents acquired the suit property through adverse possession. He submits that the Counter claim ought to be struck out as they are bad for duplicity.
13. Counsel for the Respondent on the other hand filed his submissions dated 20th March, 2025 where he identified one issue for determination being whether the magistrate court had jurisdiction to deal with a claim for adverse possession.
14. He submits that the Principal Magistrate court was not one of the courts contemplated under Section 38(1) of the Limitation of Actions Act to deal with adverse possession cases.
15. He submits that the Respondents’ counterclaim touched or was based on adverse possession. He urged the court not to apply the above decision retroactively in this case as it could disrupt the legitimate expectation of the Respondents who completed their case at the lower court. He submits that the same would avoid a potential injustice to the Respondent who were successful in prosecution of their case.
16. It was his submission that the Limitation of Actions Act does not extinguish a suit or action itself but operates to bar the claim or remedy sought. He cited the case of Iga v Makerere University and Section 7 of the Limitation of Actions Act.
17. He submits that the Appellant failed to prove his claim of fraud against the Defendants. He submits that there was no evidence to show that the first Respondent intentionally deceived the Appellant. He also submits that the Appellant failed to prove his claim of fraud against the 2nd and 3rd Respondent. He also submits that there was no nexus between them and the case filed and determined against the 1st Respondent. He urged the court to dismiss the appeal with costs.
Analysis and Determination
18. Upon consideration of the grounds of appeal, pleadings, submissions and the authorities cited, the following issues are for determination:
1. Whether the trial court had jurisdiction to hear and determine the matter.
2. Who should bear the cost of the appeal.
19. Being a first appeal, the court relies on a number of principles as set out in Selle and another V Associated Motor Boat Company Ltd and others [1968] 1 EA 123:
“…this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence ...”
20. In the case of Republic V Chengo & 2 others (Petition 5 of 2015) [2017] KESC 15 (KLR) the court held that:
“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”
21. It is not in dispute that the Respondents filed a Defence and Counterclaim dated 13th January, 2023 before the trial court. In it they claimed adverse possession. Immediately they raised this kind of defence and counterclaim the trial court ceased to have jurisdiction in the whole matter. It should have downed its tools since jurisdiction is everything and without it a court should stop any further step in a dispute and leave it to the proper forum. It did not. Therefore, the proceedings that went on in it were a nullity and cannot be let to stand. The best to do is to return the parties to where they were before the filing of the suit in that court. Thus, this suit is good for striking out.
22. I am guided by the Court of appeal decision on Sugawara V Kiruti (Sued in her capacity as the administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others [2024] KECA 1417 (KLR) where the Court laid to rest the long raging controversy, albeit under mistaken interpretations of the law, about jurisdiction of magistrates courts in adverse claims. The said court held as follows:
“It is our view that, if it was intended that claims for adverse possession be determined by the Magistrates’ Court, nothing would have been easier than for Parliament to have expressly enacted such a provision. So that in view of the express provisions of the law, a strict interpretation of section 38 would mean that hearing and determination of such matters is specifically limited to the Environment and Land Court to the exclusion of Magistrates’ Court.
In the circumstances, in view of the express provisions of section 38 of the Limitation of Actions Act, as did the Environment and Land Court, we find that Magistrates’ Courts do not have jurisdiction to determine the claims of adverse possession. As a consequence, the trial magistrate in the instant case rightly disregarded hearing and determining it. In the result, this ground is without merit and is accordingly dismissed.”
23. As guided by the above authority, it is this court’s view that the trial court lacked the requisite jurisdiction to hear and determine the case by virtue of the matter having been one of adverse claim. In view of this finding, this court proceeds to set aside the trial court’s judgement dated 16th April, 2024, thereby reopening it at first.
24. The lower court did not have jurisdiction once the issue turned out to be one of adverse possession. The court should have downed its tools at that moment. This court therefore orders that both the Plaint and Counterclaim in the lower court be struck out with no orders as to costs in the trial court as well as in the present appeal.
25. It is so ordered.