(Being an appeal from the judgment of Hon. M.O Obiero, Senior Principal Magistrate, delivered on 26 August 2022 in the case Kehancha SPMCCELC No. 25 of 2018 formerly Migori ELC No. 875 of 2017)
1. Through a plaint filed on 27 November 2017 , the respondent commenced suit against the appellant, seeking orders to have the appellant evicted and permanently restrained from the land parcel Bukira/Bwisaboka/7129 (the suit land). He also sought general damages and costs of the suit. The plaint was subsequently amended on 31 October 2019, but the prayers remained the same. In the amended plaint, the respondent pleaded that he is the registered proprietor of the suit land and that the appellant has trespassed into it, planted trees, cultivated and put up structures. He pleaded that the suit land was a subdivision of the land parcel No. 5979 and was created in 2017.
2. The appellant had filed a defence to the original plaint which he maintained despite the amendment of the plaint. He pleaded that he bought the suit land from the father of the plaintiff, one Matiko Gisiri, on 12 September 1997. He elaborated that he purchased 8 acres out of the land parcel Bukiar/Bwisaboka/1060. He contended that he has acquired title to the 8 acres by adverse possession.
3. The suit had been filed in the superior Environment and Land Court at Migori but was transferred by consent to the Magistrates’ Court at Kehancha for disposal on 23 July 2018.
4. Hearing commenced on 5 November 2020 before Hon. L.N Mesa, Principal Magistrate, when the respondent testified. He relied on two brief witness statements and even his evidence in court was pretty brief. In the witness statements he stated that he is the owner of the suit land which measures 2.62 Ha. He mentioned that the appellant had moved into the suit land in 1997 and is illegally on the land. He added that the appellant has denied him access to the land and he should therefore be evicted. In court he produced the title document, the search, green cards to the parcel No. 7129 and 5979 and a demand notice. Cross-examined, he testified that the original parcel number was No. 1059. It was owned by his father before he became the owner. He stated that he obtained a grant which was confirmed in 2017. He stated that the appellant entered the land in 2017. He denied knowledge of an agreement for sale of the land between his father and the respondent. A sale agreement was put to him and he could see his name and identity card in it but he stated that the appellant never involved him in anything and maintained that his father never sold the land to anybody. Pleadings of another suit, Originating Summons No. 21 of 2019 were put to him and he acknowledged being aware of the case. Re-examined, he pointed out that the sale agreement was in respect of a land parcel No. 1060 which was never owned by his father and which he does not own. He stated that what his father owned was the parcel No. 1059.
5. With that evidence the respondent closed his case.
6. I presume that Hon. Mesa was transferred, for subsequently the matter was taken over by Hon. J. Ongondo, Senior Principal Magistrate. It was before Hon. Ongondo that the appellant testified on 18 November 2021. He also relied on a brief witness statement vide which he stated that he bought 8 acres out of the land parcel No. 1060 and wrote a sale agreement before the Chief, one Joseph Marwa Muniko, and the Assistant Chief, one Lucas M. Taruru. He stated that he set up his home on the land and has been doing his developments thereon. He claimed that the respondent fraudulently subdivided the land parcel No. 1060 into different parcel numbers, including the parcel No. 7129 in dispute, and has been attempting to evict him from his 8 acres. He contended to have resided on the land since 1997 and has acquired title by way of adverse possession.
7. Cross-examined he reiterated that what he purchased was the parcel No. 1060 and he conceded that he has no document to show that it belonged to Matiko Gisiri. He could see that the suit land is derived from the parcel No. 1059 and not No. 1060. He claimed that the respondent has his portion on the suit land and he also has his and that he has a homestead on the land.
8. He called Joseph Marwa Muniko as his witness. He testified that he was Senior Chief Bukira East between 1984 and 2000. Hi evidence was that he witnessed a sale agreement between the appellant and Matiko Gisiri on 12 September 1997. What was being sold was the land parcel No. 1060. He testified that the prepared the sale agreement and it was witnessed by the respondent, as son of Gisiri. He testified that the appellant stayed in the land after the purchase and has his homestead therein. Cross-examined, he testified that the parcel No. 1060 was in name of Matiko Gisiri and the parcel No. 1059 in name of his brother. He stated that the appellant has his portion and the respondent his portion. He was not aware if the appellant was cultivating the land.
9. With the above evidence the appellant closed his case. Counsel filed submissions and Hon. Ongondo reserved the matter for judgment for delivery on 17 March 2022. On that day, he did not deliver the judgment. He made remarks that he needed the Land Registrar to avail evidence of the original parcel of land which gave rise to the suit land i.e parcel No. 7129. This was because the appellant claimed to have purchased the land parcel No. 1060 whereas the respondent claimed his land is from the parcel No. 1059. It would appear that before this could be done, Hon. Ongondo was transferred and the matter fell into the hands of Hon. M.O Obiero, Senior Principal Magistrate. When it came up before him on 21 July 2022, both counsel for the appellant and respondent called for a date for judgment, stating that they have filed submissions. Hon Obiero reserved the matter for judgment which he delivered on 26 August 2022.
10. He found that what the appellant had displayed is a sale agreement for the parcel No. 1060. He held that the appellant had failed to demonstrate that the suit land was a subdivision of this parcel No.1060 and in occupation of the portion that he bought. He held that the respondent had demonstrated that the appellant had no rights in the suit land. On the issue of adverse possession, he found that no counterclaim had been raised. He thus entered judgment for the respondent for orders of eviction and permanent injunction against the appellant together with costs. He did not make any award in general damages.
11. Aggrieved, the appellant has filed this appeal on the following grounds :
(i) That the trial Magistrate erred in finding that the appellant was a trespasser while there was overwhelming evidence that he had bought the land;
(ii) That the trial Magistrate erred in failing to appreciate that the parcel No. 7129 was a consequent title in a chain which related to the original parcels No. Bukira/Bwisaboka/1059 and 1060, which had a special history between two brothers one of whom is father of the respondent who sold the suit land to the appellant;
(iii) That the trial Magistrate erred in writing a judgment before compliance with the orders made on 17 March 2022 which would have revealed how the father of the respondent exchanged the original titles No. Bukira/Bwisaboka/1059 and 1060 with his brother due to inadvertent discrepancies between the ground ownership and the names in the titles thereby making the court to act in a vacuum without the most material evidence in this case which ought to be considered in the interests of justice;
(iv) That the trial Magistrate made an ambiguous and ridiculous conclusion of the dispute after having established that the defendant had indeed bought the suit land on 12 September 1997 vide an agreement witnessed by the respondent himself;
(v) That the trial Magistrate casually treated the current title of the respondent without considering the history of the same;
(vi) That the judgment was irreconcilable with the evidence;
(vii) That the Magistrate erred in dismissing the appellant’s defence;
(viii) That the trial Magistrate erred in failing to appreciate that this was a succession matter as it related to the estate of Matiko Gisiri (deceased).
12. I invited counsel to file submissions and I have taken note of the submissions filed.
13. Before I go to the substance of the appeal, I need to mention an important issue regarding this case. In his defence, the appellant did assert that he has acquired title to the suit land by way of adverse possession. At the hearing, pleadings for a case identified as Originating Summons No. 21 of 2019 were put to the respondent. I felt the need to find out what this case is all about, for an Originating Summons would be the procedure for filing a suit for adverse possession, and called for this file. I have found out that indeed it is a case filed by the appellant on 13 March 2019 against the respondent, seeking orders that he has acquired title, by way of adverse possession, to a land parcel No. 7120. In that suit, he claimed that he bought 8 acres from the land parcel No. 1060 which has since been subdivided, and his portion is now the parcel No. 7120. That case was dismissed on 18 January 2023, by Kullow J, under Order 12 for non-attendance. Now, if the appellant claimed in that case that what he bought is comprised in the land parcel No. 7120 then it is curious that he claims in this case that what he bought is comprised in the parcel No. 7129. Assuming that this was an error in pleading, and what he actually wished to claim by way of adverse possession is the suit land, i.e parcel No. 7129, his case for this land through the doctrine of adverse possession is already dismissed. Prosecuting the Originating Summons was his chance to prove adverse possession but he failed to do so.
14. The court which heard the suit culminating into this appeal, which is the Magistrates’ Court, could not make a determination over adverse possession, for want of jurisdiction. It was determined by the Court of Appeal, in the case of Pauline Chemuge Sugawara vs Nairuko Ene Mutarakwa Kiruti & 3 Others, Court of Appeal at Nairobi, Civil Appeal No. E141 of 2022, judgment of 11 October 2024, that Magistrates’ Courts do not have jurisdiction to hear cases of adverse possession. In that case, the Court of Appeal stated as follows :
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.
15. Now having failed to prove adverse possession, vide the Originating Summons that the appellant had filed, it is difficult to see how it can be said that the trial court was wrong in entering judgment for the respondent. The critical point here is that the appellant had a case for adverse possession which was dismissed and it was through that case that he could have asserted that he is entitled to the suit land through adverse possession.
16. Even if I was to ignore the foregoing and look purely at the merits of the appeal, I would still arrive at the conclusion that there was no error made by the trial court.
17. I have assessed the grounds of appeal. I can deal with grounds 2, 3 and 5 of the appeal together. Ground 2, tries to argue that the parcels No. 1059 and 1060 have a special history between two brothers one of whom is father to the respondent and who sold the suit land to the appellant. No evidence whatsoever was presented about any special history between two brothers regarding the parcels No. 1059 and 1060. In fact there was no documentary evidence whatsoever presented on the ownership of the parcel No. 1060. The very thin evidence on the parcel No. 1060 came from DW-2 who stated that ‘1060 was in the name of Matiko Gisiri and 1059 his brother.’ That’s it. Nothing else. Is this really evidence of special history ? Certainly not. If the appellant wished to bring forth some sort of history connecting the parcel No. 1059 and 1060, he had opportunity to do so at the hearing but he presented no such evidence. He cannot now fault the trial court for not appreciating a history that was never presented in court.
18. Regarding ground 3, the appellant complains that the Honourable Magistrate was wrong in not complying with the earlier direction of the previous Magistrate who wished to have the Land Registrar come to court to clarify from which land the parcel No. 7129 (the suit land) was derived from. Now, I have already mentioned that when the matter came up for mention before Hon. Obiero, both counsel for the appellant and counsel for the respondent, demanded a judgment date. If the appellant wished to have the Land Registrar attend court before judgment could be delivered, he could have said so, but he did not. Having himself asked for a judgment date, can he now complain when the trial court gave him exactly what he wanted ? I do not see. Whatever the case, different judicial officers see things differently. Hon. Ongondo may have wished to have the Land Registrar clarify the issue, but Hon. Obiero who wrote the judgment may not have wished to have any clarity, for he may have been clear in his mind. Indeed, the evidence was there as to which parcel of land the suit land emanated from. This evidence was discernible from the green cards that were produced by the plaintiff. He produced a green card of the suit land which showed that it emanated from subdivision of the parcel No. 5979. He also produced a green card showing that the parcel No. 5979 was derived from a subdivision of the parcel No. 1059. Thus, there was nothing really to clarify, for it was clear from the documentary evidence that the suit land emanated from the original parcel No. 1059 and not the parcel No. 1060 which the appellant alleged to have purchased. I do not therefore see how the appellant can fault the trial Magistrate for not calling for the Land Registrar.
19. Ground 5 is to effect that the trial Magistrate failed to consider the history of the suit land and the nexus between it and the parcels No. 1059 and 1060. That, is already covered above. The evidence is stark that the suit land came from the parcel No. 1059 and not 1060.
20. The next ground that I intend to deal with is ground 8. It contends that the trial magistrate erred in failing to appreciate that this was a succession matter as it is related to the estate of Matiko Gisiri (deceased). I will be short in the disposition of this ground for it is as clear as day that what was before court was not a succession matter. It cannot be raised that the trial court was at fault in failing to appreciate that this was a succession matter. It was clearly not a succession matter and that is it.
21. I have dealt with grounds 2, 3, 5 and 8. The rest of the grounds really assail the conclusion of the court, the finding that the appellant was a trespasser, and dismissal of the defence. I have already mentioned that if the defence of the appellant was adverse possession, and indeed it was, he needed to pursue his case for adverse possession before the Environment and Land Court, which he failed to do. The trial court could not find for him on adverse possession for want of jurisdiction.
22. But even then, what exactly was the case of the appellant ? He claimed to have purchased 8 acres out of the land parcel No. 1060 but the suit land emanated from subdivision of the parcel No. 1059. Can it really be said therefore that he proved being in possession of the suit land by virtue of purchase ? That is doubtful.
23. The appellant also claimed that the respondent has his portion on the suit land and he also has his portion. He never offered any particular acreage that he is in possession of and any acreage that the respondent was in possession of. He never offered any ground report.
24. That aside, even the total acreage of the suit land does not add up to 8 acres. The suit land is 2.62 Ha. That is just about 6 acres and a half. So where is this 8 acres that the appellant claims to have bought ?
25. I think the defence of the appellant was so jumbled up that it would have been impossible for any court to hold that he has a valid defence to the case of the respondent. The respondent’s case was simple, that he is the proprietor of the suit land and that the appellant is a trespasser. Bar any proof of a legitimate right over the suit land, judgment had to be entered for the respondent, for reason that the respondent did demonstrate title to the suit land. The appellant did not prove any right to the suit land given the rather scrambled and dishevelled defence that he presented.
26. For the above reasons, I am not persuaded of the merits of this appeal and it is hereby dismissed with costs. The judgment of the Magistrates’ Court remains undisturbed.
27. Judgment accordingly.
DATED AND DELIVERED THIS 25 DAY OF JUNE 2025
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT
MIGORI
Delivered in the presence of :
Mr. Kisera for the appellant
Mr. Singei for the respondent
Court Assistant – Michael Oyuko