1. I have held the view that Magistrates have jurisdiction to handle adverse possession claims. I am not alone; as will be seen in the subsequent paragraphs in this judgment, several of the ELC judges have held the same view.
2. With the establishment of the ELC under Article 162(2)(b) and the ELC Act, 2011 and subsequently the enactment of the Magistrates Courts Act 2015 and Miscellaneous Amendments to the ELC Acts, which followed with litigations around the jurisdiction question of Magistrates to handle ELC matters – see the decision in the Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others [2017] eKLR - Magistrates have been handling adverse possession matters. There have been two schools of thought at the ELC: those like myself who believe that Magistrates have jurisdiction and those who say they don’t have jurisdiction.
3. This appeal arises from orders of the Magistrates Court – Hon. Ongondo SPM upholding a Counterclaim in an adverse possession claim. It sparked the current Appeal. In the Memorandum of Appeal, the Appellants state that:
i. The Learned Magistrate erred in law and, in fact, in finding that the Respondent had established adverse possession over the Appellant’s suit property. Yet, there was no evidence that the Respondent had been in occupation of the suit property for more than twelve (12) years, having only invaded the Appellant’s suit property in the year 2017.
ii. The Learned Magistrate erred in law and, in fact, by failing to analyze all the evidence presented by the Appellant, detailing that the Respondent had only commenced trespassing on the suit property in 2017.
iii. The Learned Magistrate erred in law in failing to analyze and determine that the Respondent has established all the ingredients precedent for the Respondent to succeed in establishing adverse possession over the Appellant’s property.
iv. The Learned Magistrate‘s decision to dismiss the Appellant’s suit and allow the Respondent’s counter-claim with costs went against the weight of evidence and law to constitute a grave miscarriage of justice.
4. I directed parties to canvass the appeal via written submissions. They complied. After carefully analyzing the materials and submissions before me, I frame the issue for this Court's decision as to whether the appeal is meritorious and who should bear the costs of this appeal and in the Lower Court.
5. The role of this Court at this point is crucial, as it involves re-evaluating the evidence and making its independent conclusion. In the often-cited case of Okeno v Republic [1972] EA 32 at 36, the East Africa Court of Appeal stated the duty of the Court on a first appeal as follows:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.”
6. In handling the appeal, I noticed that the Counterclaim, which succeeded in the Lower Court, arose from an adverse possession claim. The issue of the jurisdiction of the Trial Court to handle adverse possession claims in the Magistrates Court was never raised. But I must reckon it because the Court's jurisdiction is paramount. Without it, the Court is unable to proceed further and down tools. As held in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, the Court must have jurisdiction to act:
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
7. The Court of Appeal has recently provided guidance on whether the Magistrates Court has jurisdiction to hear adverse possession claims. It is reported in 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), the decision by the Court of Appeal discuss the divergent views taken by judges at the ELC; this is what the Superior Court said:
“Having said that, did the Magistrates’ Court have jurisdiction to hear and determine claims for adverse possession? The question of whether the Magistrates’ courts have jurisdiction to hear and determine some claims has recently become a vexing question for courts following the establishment of the Environment and Land Court under Article 162(2) (b) of the Constitution 2010 to hear and determine disputes relating to the environment, use and occupation of and title to land, and the expansion of the hearing and determination of land disputes to the Magistrates courts.
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 use planning, title, tenure, boundaries, rates, rents, 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.”
33. Whereupon, section 26 (3) and (4) of the Environment and Land Court Act, 2011 provides 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. These provisions are replicated under Section 9(a) of the Magistrates’ Courts Act, 2015, which gives the Magistrate’s court’s jurisdiction over environment and land matters. It is provided inter alia that:
“A magistrate's court shall, in the exercise of the jurisdiction conferred upon it by section 26 of the Environment and Land Court Act (No. 19 of 2011) and subject to the pecuniary limits under section 7(1) hear and determine claims relating to —i.environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals, and other natural resources; ii. compulsory acquisition of land; iii. land administration and management; iv. 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. Over time, the Chief Justice has variously gazette notices and made appointments pursuant to section 26 (3) and (4) of the Environment and Land Court Act, 2011.
36. Subsequently, the jurisdiction of the Magistrates’ Courts to hear and determine disputes relating to environment and the use and occupation of, and title to, land was endorsed by this Court in the case of Law Society of Kenya Nairobi Branch vs Malindi Law Society & 6 others [2017] eKLR.
37. However, the distinctive issue in this appeal is concerned with a claim for adverse possession and whether, under section 9(a) of the Magistrates’ Courts Act, magistrates can determine such claims. It is instructive that a consideration of jurisprudence on this issue since the expansion of environment matters to Magistrates’ courts clearly demonstrates that the decisions on this issue are not in accord. A sampling of case law on the question makes this quite evident.
38. For instance, there are decisions that have reached the conclusion that the Magistrates Court has jurisdiction to hear claims for adverse possession. For instance, in the case of Patrick Ndegwa Munyua vs. Benjamin Kiiru Mwangi & another [2020] eKLR D. O. Ohungo, J. held:
“Based on the express provisions of Section 26 (3) and (4) of the Environment and Land Court Act, 2011, and Section 9 (a) of the Magistrates’ Courts Act, 2015, the principles of interpretation of the Constitution as well as the principles of the Constitution such as devolution, access to services and access to justice for all persons, to find as I hereby do, that so long as presided over by a magistrate who is duly gazetted under Section 26 (3) of the Environment and Land Court Act, 2011 and who has the requisite pecuniary jurisdiction, magistrates’ courts have jurisdiction and power to handle cases involving claims of adverse possession.”
39. This decision was followed in the cases of Philip Kithaka vs Mercy Karimi Nyaga [2021] eKLR and Christopher Kangogo Cheboiboch vs Susan Chepichi Chepkiyeng [2021] eKLR. Both decisions were rendered by L. N. Mbugua J.
40. Other decisions of the Environment and Land Court hold contrary views, which seems to be the more predominant position. It was held in the case of Jesee Njoroge Gitau vs. Kibuthu Macharia & another [2019] eKLR that:
“It is clear from the above provisions of the law that the Magistrate’s court has no jurisdiction to try matters where a party is seeking adverse possession. Indeed, if both matters had been filed in this court, the best order suited to issue upon this application would have been an order for consolidation of both the matters. However, this is not the case in question.”
41. In the case of Michael Chebii Toroitich vs Peter Mogin Yatich Chebii [2013], eKLR M. Sila, J. held:
“The matters in issue in Iten RMCC No. 9 of 1994 and in the land disputes tribunal, in my view, were whether the defendant holds a half share of the land in trust for the plaintiff. The question whether the plaintiff is entitled to the suit land by way of adverse possession never arose in those proceedings. Indeed, they could not have arisen, as the Magistrate's court does not have jurisdiction to entertain a claim of adverse possession. Neither could adverse possession have been made a ground of attack or defence in those two proceedings. The issue of adverse possession could not have been raised and was never raised in those proceedings.”
42. Similarly, in the case of Njoki Wainaina vs. 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.”
43. Recently, in the case of Reuben vs 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 the 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 controversial question of jurisdiction of the Magistrates’ Courts in claims for adverse possession emanates from sections 37 and 38 of the Limitation of Actions Act, where it is specifically provided that such claims are to be heard by the “High Court.”
45. 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 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) …”
46. In other words, reference is to the “High Court” as the court to which such cases are heard, and given the dictates of the Constitution set out above, this should be construed to mean the “Environment and Land Court,” as being the court donated with jurisdiction to hear and determine matters pertaining to adverse possession of land. The effect of this interpretation is that, it is only the Environment and Land Court established under Article 162(2) (b) that is mandated to hear these cases. So that, notwithstanding the expansion of the jurisdiction of environment and land usage to Magistrates Courts, it is distinctive that under section 9 (a) of the Magistrates Courts Act, various matters are specified for determination, but claims for adverse possession are not included.
47. In the case of Republic vs. Karisa Chengo & 2 Others [2017] eKLR, this 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.”
48.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.
49. We come to this conclusion also bearing in mind that the jurisdiction of Magistrates’ Courts is largely determined by the pecuniary interest designated for determination 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 may be 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 in excess of the particular Magistrates’ Court’s pecuniary jurisdiction, which for all intents and purposes was not what was intended by the Act.
50. 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.”
8. The Counterclaim that gave rise to this appeal was based on an adverse possession claim. The Court of Appeal's decision settles the issue that the Magistrates Courts have no jurisdiction to handle adverse possession claims. That is the position that binds this Court for now.
9. It follows then that the Magistrate had no the powers to handle an adverse possession claim; consequently, on that point alone, this appeal must succeed. The Trial Court had no jurisdiction.
10. Regarding costs, given the conflicting jurisprudence and decisions emanating from the ELC on the jurisdiction question of the Magistrates Court in adverse possession claims, which has now been settled, each party will bear their own costs in this appeal and the Trial Court.
Dated signed and delivered virtually this 11th day of December 2024.
E. K. MAKORI
JUDGE
In the Presence of:
Mr. Ochieng, for the Appellants
Abdrashid: Court Assistant
In the Absence of:
Mr. Komora, for the Respondent
2. With the establishment of the ELC under Article 162(2)(b) and the ELC Act, 2011 and subsequently the enactment of the Magistrates Courts Act 2015 and Miscellaneous Amendments to the ELC Acts, which followed with litigations around the jurisdiction question of Magistrates to handle ELC matters – see the decision in the Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others [2017] eKLR - Magistrates have been handling adverse possession matters. There have been two schools of thought at the ELC: those like myself who believe that Magistrates have jurisdiction and those who say they don’t have jurisdiction.
3. This appeal arises from orders of the Magistrates Court – Hon. Ongondo SPM upholding a Counterclaim in an adverse possession claim. It sparked the current Appeal. In the Memorandum of Appeal, the Appellants state that:
i. The Learned Magistrate erred in law and, in fact, in finding that the Respondent had established adverse possession over the Appellant’s suit property. Yet, there was no evidence that the Respondent had been in occupation of the suit property for more than twelve (12) years, having only invaded the Appellant’s suit property in the year 2017.
ii. The Learned Magistrate erred in law and, in fact, by failing to analyze all the evidence presented by the Appellant, detailing that the Respondent had only commenced trespassing on the suit property in 2017.
iii. The Learned Magistrate erred in law in failing to analyze and determine that the Respondent has established all the ingredients precedent for the Respondent to succeed in establishing adverse possession over the Appellant’s property.
iv. The Learned Magistrate‘s decision to dismiss the Appellant’s suit and allow the Respondent’s counter-claim with costs went against the weight of evidence and law to constitute a grave miscarriage of justice.
4. I directed parties to canvass the appeal via written submissions. They complied. After carefully analyzing the materials and submissions before me, I frame the issue for this Court's decision as to whether the appeal is meritorious and who should bear the costs of this appeal and in the Lower Court.
5. The role of this Court at this point is crucial, as it involves re-evaluating the evidence and making its independent conclusion. In the often-cited case of Okeno v Republic [1972] EA 32 at 36, the East Africa Court of Appeal stated the duty of the Court on a first appeal as follows:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.”
6. In handling the appeal, I noticed that the Counterclaim, which succeeded in the Lower Court, arose from an adverse possession claim. The issue of the jurisdiction of the Trial Court to handle adverse possession claims in the Magistrates Court was never raised. But I must reckon it because the Court's jurisdiction is paramount. Without it, the Court is unable to proceed further and down tools. As held in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, the Court must have jurisdiction to act:
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
7. The Court of Appeal has recently provided guidance on whether the Magistrates Court has jurisdiction to hear adverse possession claims. It is reported in 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), the decision by the Court of Appeal discuss the divergent views taken by judges at the ELC; this is what the Superior Court said:
“Having said that, did the Magistrates’ Court have jurisdiction to hear and determine claims for adverse possession? The question of whether the Magistrates’ courts have jurisdiction to hear and determine some claims has recently become a vexing question for courts following the establishment of the Environment and Land Court under Article 162(2) (b) of the Constitution 2010 to hear and determine disputes relating to the environment, use and occupation of and title to land, and the expansion of the hearing and determination of land disputes to the Magistrates courts.
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 use planning, title, tenure, boundaries, rates, rents, 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.”
33. Whereupon, section 26 (3) and (4) of the Environment and Land Court Act, 2011 provides 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. These provisions are replicated under Section 9(a) of the Magistrates’ Courts Act, 2015, which gives the Magistrate’s court’s jurisdiction over environment and land matters. It is provided inter alia that:
“A magistrate's court shall, in the exercise of the jurisdiction conferred upon it by section 26 of the Environment and Land Court Act (No. 19 of 2011) and subject to the pecuniary limits under section 7(1) hear and determine claims relating to —i.environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals, and other natural resources; ii. compulsory acquisition of land; iii. land administration and management; iv. 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. Over time, the Chief Justice has variously gazette notices and made appointments pursuant to section 26 (3) and (4) of the Environment and Land Court Act, 2011.
36. Subsequently, the jurisdiction of the Magistrates’ Courts to hear and determine disputes relating to environment and the use and occupation of, and title to, land was endorsed by this Court in the case of Law Society of Kenya Nairobi Branch vs Malindi Law Society & 6 others [2017] eKLR.
37. However, the distinctive issue in this appeal is concerned with a claim for adverse possession and whether, under section 9(a) of the Magistrates’ Courts Act, magistrates can determine such claims. It is instructive that a consideration of jurisprudence on this issue since the expansion of environment matters to Magistrates’ courts clearly demonstrates that the decisions on this issue are not in accord. A sampling of case law on the question makes this quite evident.
38. For instance, there are decisions that have reached the conclusion that the Magistrates Court has jurisdiction to hear claims for adverse possession. For instance, in the case of Patrick Ndegwa Munyua vs. Benjamin Kiiru Mwangi & another [2020] eKLR D. O. Ohungo, J. held:
“Based on the express provisions of Section 26 (3) and (4) of the Environment and Land Court Act, 2011, and Section 9 (a) of the Magistrates’ Courts Act, 2015, the principles of interpretation of the Constitution as well as the principles of the Constitution such as devolution, access to services and access to justice for all persons, to find as I hereby do, that so long as presided over by a magistrate who is duly gazetted under Section 26 (3) of the Environment and Land Court Act, 2011 and who has the requisite pecuniary jurisdiction, magistrates’ courts have jurisdiction and power to handle cases involving claims of adverse possession.”
39. This decision was followed in the cases of Philip Kithaka vs Mercy Karimi Nyaga [2021] eKLR and Christopher Kangogo Cheboiboch vs Susan Chepichi Chepkiyeng [2021] eKLR. Both decisions were rendered by L. N. Mbugua J.
40. Other decisions of the Environment and Land Court hold contrary views, which seems to be the more predominant position. It was held in the case of Jesee Njoroge Gitau vs. Kibuthu Macharia & another [2019] eKLR that:
“It is clear from the above provisions of the law that the Magistrate’s court has no jurisdiction to try matters where a party is seeking adverse possession. Indeed, if both matters had been filed in this court, the best order suited to issue upon this application would have been an order for consolidation of both the matters. However, this is not the case in question.”
41. In the case of Michael Chebii Toroitich vs Peter Mogin Yatich Chebii [2013], eKLR M. Sila, J. held:
“The matters in issue in Iten RMCC No. 9 of 1994 and in the land disputes tribunal, in my view, were whether the defendant holds a half share of the land in trust for the plaintiff. The question whether the plaintiff is entitled to the suit land by way of adverse possession never arose in those proceedings. Indeed, they could not have arisen, as the Magistrate's court does not have jurisdiction to entertain a claim of adverse possession. Neither could adverse possession have been made a ground of attack or defence in those two proceedings. The issue of adverse possession could not have been raised and was never raised in those proceedings.”
42. Similarly, in the case of Njoki Wainaina vs. 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.”
43. Recently, in the case of Reuben vs 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 the 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 controversial question of jurisdiction of the Magistrates’ Courts in claims for adverse possession emanates from sections 37 and 38 of the Limitation of Actions Act, where it is specifically provided that such claims are to be heard by the “High Court.”
45. 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 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) …”
46. In other words, reference is to the “High Court” as the court to which such cases are heard, and given the dictates of the Constitution set out above, this should be construed to mean the “Environment and Land Court,” as being the court donated with jurisdiction to hear and determine matters pertaining to adverse possession of land. The effect of this interpretation is that, it is only the Environment and Land Court established under Article 162(2) (b) that is mandated to hear these cases. So that, notwithstanding the expansion of the jurisdiction of environment and land usage to Magistrates Courts, it is distinctive that under section 9 (a) of the Magistrates Courts Act, various matters are specified for determination, but claims for adverse possession are not included.
47. In the case of Republic vs. Karisa Chengo & 2 Others [2017] eKLR, this 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.”
48.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.
49. We come to this conclusion also bearing in mind that the jurisdiction of Magistrates’ Courts is largely determined by the pecuniary interest designated for determination 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 may be 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 in excess of the particular Magistrates’ Court’s pecuniary jurisdiction, which for all intents and purposes was not what was intended by the Act.
50. 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.”
8. The Counterclaim that gave rise to this appeal was based on an adverse possession claim. The Court of Appeal's decision settles the issue that the Magistrates Courts have no jurisdiction to handle adverse possession claims. That is the position that binds this Court for now.
9. It follows then that the Magistrate had no the powers to handle an adverse possession claim; consequently, on that point alone, this appeal must succeed. The Trial Court had no jurisdiction.
10. Regarding costs, given the conflicting jurisprudence and decisions emanating from the ELC on the jurisdiction question of the Magistrates Court in adverse possession claims, which has now been settled, each party will bear their own costs in this appeal and the Trial Court.
Dated signed and delivered virtually this 11th day of December 2024.
E. K. MAKORI
JUDGE
In the Presence of:
Mr. Ochieng, for the Appellants
Abdrashid: Court Assistant
In the Absence of:
Mr. Komora, for the Respondent