MELANIA KEDEMI AND BENARD KEDEMI VS JAMES KIMETO KIBIEGO

RULING
1.    Vide a notice of motion application dated 16th September, 2025 the applicants herein seek an order of stay of proceedings in Iten MCELC Cause No. 027 of 2025, pending hearing and determination of the application and an order of removal of the suit from the subordinate court and transfer to itself for hearing and final determination.

2.    The application is premised on the grounds that the suit in the lower court relates to ownership, use, occupation and/or title to land falling squarely within the jurisdiction of this court (Environment and Land Court, ELC) under Article 162(2)(b) of the Constitution and Section 13 of the ELC Act; that the plaintiff who is the registered proprietor of the suit property, has never taken possession of it or exercised rights of ownership over it for a period exceeding  30 years; that the plaintiff’s claim is stale, defeated by Limitation of Actions Act and that the law cannot be invoked to aid a claim long extinguished by effluxion of time. Further, that the suit is statute barred the same having been instituted outside the 12 year limitation period provided under section 7 of the Limitation of Actions Act.

3.    It is the applicants’ case that they intend to lodge a counterclaim under section 38 of the Limitation of Actions Act seeking declaratory orders of ownership by adverse possession, a jurisdiction the subordinate court does not have.

4.    The application is supported by the affidavit of the 2nd applicant, Benard Kedemi, sworn on 16th September, 2025, in which the grounds on the face of the application are reiterated. Besides reiterating the grounds on the face of the application, the applicants have annexed to the affidavit the following documents:-
i)    Copies of pleadings and supporting documents filed by the respondent in the suit sought to be transferred to this court, marked BK-1;
ii)    Copy of the applicants’ draft defence and counter-claim, marked BK-2;
iii)    The judgment of the court of appeal in the case of Derry alias Margarent Atieno Kasyoki v. Lwango (Civil Appeal No. E221 of 2022) (2025) KECA 339 (KLR) (Judgment) (21 February 2025) marked BK-3.

5.    The application is opposed vide the replying affidavit of James Kimeto Kibiego sworn on 27th October, 2025. He deposes that the application is misconceived, incompetent and an abuse of the court process, brought in bad faith and aimed at delaying and obstructing the expeditious hearing of the suit before the subordinate court; that the dispute does not fall outside the jurisdiction of the magistrate court as the suit concerns trespass and unlawful occupation of registered property under leasehold tenure; that the applicant’s invocation of Section 38 of the Limitation of Actions Act is misconceived as the suit land is Government leasehold and the same is excluded under Section 41 of the Act; that the Magistrate court is empowered under Section 9 of the Magistrate Court Act, 2015 to hear and determine land disputes within its pecuniary and territorial jurisdiction including the present case; that transferring the matter to this court will only delay justice, increase costs and prejudice the respondent.

6.    The application was argued orally on 30th October 2025. Counsel for the applicants relied on the grounds on the face of the application and the supporting affidavit of Bernard Kedemi. He informed the court that the dispute relates to ownership, occupation and/or title to land which falls within the jurisdiction of this court under Article 162(2)(b) of the Constitution and Section 13 of the ELC Act.

7.    The applicant’s counsel further informed the court that the applicants’ defence rests upon Sections 12, 18 and 38 of the Land Adjudication Act; that the applicants intend to file a counterclaim under Section 38 of the Land Adjudication Act seeking orders of ownership of the suit property by adverse possession, a jurisdiction the lower court does not have.

8.    The applicants’ counsel submitted that it is fair and just that the matter/suit be transferred to the court with proper jurisdiction to hear and determine claims for adverse possession. Counsel relied on the decision of Margarent Atieno Kasyoki v. Lwango, (supra).


9.    Counsel for the respondent relied on the respondent’s replying affidavit. She stated that the suit land is a leasehold, leased by the County Government of Elgeyo Marakwet; that Section 38 and 41 of the Limitation of Actions Act excludes Government leaseholds from claims of adverse possession and that under Section 9 of the Magistrates Act, Magistrate courts can determine all disputes within their pecuniary jurisdiction.

10.    The respondent’s counsel further submitted that transfer of the suit to this court is not necessary as it will only delay hearing and determination of the suit. She urged the court to dismiss the application as it lacks merit.


11.    In a rejoinder, counsel for the applicants submitted that the issue of whether the suit land is Government land is an issue to be determined during trial; that the applicants have no claim against Government but a private person and that it is this court, ELC, which has original jurisdiction on land matters and is the only court which can hear and determine matters of adverse possession. Counsel for the applicants further submitted that the respondent has not demonstrated what prejudice, if any, he stands to suffer if the application is allowed. He urged the court to transfer the suit in the interest of justice.

12.    I have read and considered the grounds urged in support of the application and the reasons advanced against grant of the orders sought in the application.


13.    Being of the view that the applicants’ have a right to be heard in their proposed claim that they have become entitled to the suit property on account of having been in adverse possession thereof, which claim the lower court, on account of the decision in the case of Pauline Chemuge Sugawara v. Nairuko Ene Mutarakwa Kiruti (sued in her Capacity as the Administratrix of the Estate Mutarakwa Kiruti Lepaso alias Mutarakwa Kiroti Lepaso and in her own capacity) and 3 others, V Nairuko Ene Mutarakwa Kiruti Civil Appeal No. E141 of 2022, where the Court of Appeal stated/held:-
“It is our view that, if it was intended that claims for adverse possession be determined by the Magistrates’ Courts, 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. We come to this conclusion also bearing in mind that the jurisdiction of Magistrates’ Courts is largely determined by each level of the Magistracy specified in the hierarchy of courts, in terms of Section 7 of the Magistrates’ Courts Act. In claims for adverse possession where the value of the land in question maybe unknown, as in the instant case, it could be that by the time of filing, the value of the land subject of determination may be far excess of the particular Magistrates’ Court’s pecuniary jurisdiction, which for all intents and purposes was not what was intended by the Act. In the circumstances, in view of the express provisions of Section 38 of the Limitations 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.”, lacks jurisdiction to hear and determine, I am satisfied that the applicants have made up a case for being granted the orders sought in the notice of motion application dated 16th September, 2025 which orders I hereby grant them as sought.

14.    The contention that a claim for adverse possession does not lie for a leasehold title is a matter to be determined in the main suit.

15.     The cost of the application shall abide the outcome of the suit.

16.    Orders accordingly.


Dated, signed and delivered virtually at Iten this 17th day of December, 2025.

ln the presence of;-
Mr Wanyama for the Applicant
Ms Cheruiyot for the Respondent
Court Assistant; Christine