Case ID:151493

Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & another [2020] eKLR

Case Metadata

Case Number:

Environment and Land Case 2 of 2019

Parties:

Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & Fredrick Maina Mwangi

Date Delivered:

30 Jan 2020

Case Class:

Civil

Court:

Environment and Land Court at Nakuru

Case Action:

Ruling

Judge(s):

Dalmas Omondi Ohungo

Citation:

Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & another [2020] eKLR

Court Division:

Environment and Land

County:

Nakuru

Case Summary:

Adverse possession claims are within the jurisdiction of Magistrates’ Courts.

Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & another

Case No 2 of 2019

Environment and Land Court at Nakuru

DO Ohungo, J

January 30, 2020

Reported by Beryl Ikamari

Jurisdiction

- jurisdiction of Magistrates' Courts - jurisdiction of Magistrates' Courts in land and environment matters - adverse possession matters - where a party sought to have an adverse possession suit transferred from the Environment and Land Court to a Magistrates' Court on grounds that the subordinate court had pecuniary jurisdiction to entertain the matter - whether Magistrates' Courts had jurisdiction to hear and determine adverse possession matters - Constitution of Kenya 2010, articles 6(3), 48, 162(2)(b) & 169(2); Environment and Land Court Act, No 19 of 2011, section 26; Magistrates' Courts Act, No 26 of 2015, section 9(a).

Civil Practice and Procedure

- institution of suits - suit relating to claims of acquisition of land via adverse possession - whether such suits would have to be commenced by way of an originating summons and to be prosecuted before a judge - Civil Procedure Act (Cap 21), section 2; Civil Procedure Rules 2010, order 37.

Brief facts

The suit related to a claim of acquisition of a parcel of land via adverse possession. An application was made to have another suit (Nakuru CM ELC Case No. 330 of 2018

Benjamin Kiiru Mwangi v Patrick Ndegwa Munyua

) transferred to the court and consolidated with the suit before the court. Nakuru CM ELC Case No. 330 of 2018

Benjamin Kiiru Mwangi v Patrick Ndegwa Munyua

related to a claim in which the 1

st

defendant sued the plaintiff alleging trespass on the parcel of land by the plaintiff. The plaintiff wanted the suit for adverse possession to be heard together with the suit for trespass both of which related to the same parcel of land.

The defendants contended that the suit was within the pecuniary jurisdiction of subordinate courts and it should be transferred to the subordinate court and consolidated with the trespass suit.

Issues

Whether Magistrates' Courts, with the requisite pecuniary jurisdiction, had jurisdiction to hear and determine adverse possession matters.

Whether pursuant to the provisions of order 37 of the Civil Procedure Rules, on institution of adverse possession suits, it was necessary for an adverse possession suit to be instituted and prosecuted before a judge.

Whether adverse possession suits could be instituted by way of plaint or counter-claim as opposed to originating summons.

Held

A court could not validly take any step without jurisdiction. Assumption of jurisdiction by the court was regulated by the Constitution, statute law and principles laid out in judicial precedent.

Parties were in agreement that the value of the suit property was within the pecuniary jurisdiction of the Magistrates' Court. However, the question that was left for determination was whether Magistrates’ Courts had jurisdiction to hear and determine claims of adverse possession.

Under section 38 of the Limitation of Actions Act, it was only the High Court that was specified as the court wherein a person who claimed to be entitled to land by adverse possession could seek an order to be registered as the proprietor of the land. Further such a claim would be instituted under order 37 rule 7 of the Civil Procedure Rules by way of originating summons.

Claims relating to adverse possession were traditionally filed at the High Court but following the enactment of the Environment and Land Court Act, 2011, they were filed at the Environment and Land Court. That was in accord with the jurisdiction of the court to hear and determine disputes about the environment and use and occupation of and title to land as provided for under article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act.

Under article 169 (2) of the Constitution, Parliament was mandated to enact legislation conferring jurisdiction, functions and powers to Magistrates' Courts. In that regard, section 26 of the Environment and Land Court Act provided

inter alia

that the Chief Justice could by gazette notice appoint certain magistrates to preside over cases involving environment and land matters in any area of the country. Pursuant to that provision various gazette notices had been issued and various Magistrates' Courts had jurisdiction and power to handle cases involving occupation and title to land. Additionally section 9(a) of the Magistrates' Courts Act also provided for jurisdiction relating to environment and land matters as stipulated under section 26 of the Environment and Land Court Act.

Magistrates who were duly gazetted and had the requisite pecuniary jurisdiction had jurisdiction and power to handle cases involving occupation of and title to land. In adverse possession claims the claimant sought registration as the registered proprietor of land. Therefore, adverse possession claims were within the jurisdiction a duly gazetted magistrate where the pecuniary jurisdiction of the magistrate was not exceeded by the value of the subject matter of the claim.

For the hearing and determination of adverse possession claims the Limitation of Actions Act specifically mentioned the High Court and made no mention of Magistrates' Courts. The Limitation of Actions Act came into effect on December 1, 1967 and it predated the Constitution and other applicable statutes like the Environment and Land Court Act, 2011 and the Magistrates' Courts Act, 2015.

Under section 7(1) of the Sixth Schedule to the Constitution, laws in force immediately before the effective date continued to be in force and would be construed with the alterations, adaptations, qualification and exceptions necessary to bring them into conformity with the Constitution. Therefore, section 38(1) of the Limitation of Actions Act would be read with the necessary alterations, adaptations, qualifications and exceptions that would bring it into conformity with section 26(3) and 26(4) of the Environment and Land Court Act 2011 and section 9 (a) of the Magistrates’ Courts Act, 2015, both of which were enacted to give effect to article 162(2) (b) and article 169(1) (a) and 169(2) of the Constitution. Therefore it would be construed to mean that magistrates who were duly gazetted and had the requisite pecuniary jurisdiction could handle adverse possession claims that were essentially disputes on title to land.

Articles 6(3) and 48 of the Constitution had the combined effect of requiring devolution of and access to judicial services as well as access to justice for all persons. Allowing Magistrates’ Courts to handle adverse possession claims made it possible for more litigants to access justice since Magistrates’ Courts were more widely distributed in most parts of the country as compared to the Environment and Land Court which was yet to be stationed in all the counties.

Order 37 rules 7, 16, 17 and 18 of the Civil Procedure Rules which were on the procedure for commencement of adverse possession claims stated that the proceedings were to be commenced and prosecuted before a judge. However, under section 2 of the Civil Procedure Act the term judge was defined to mean the presiding officer of a court and it would therefore include a magistrate.

It was no longer a requirement that adverse possession claims had to be commenced by way of originating summons. Case law allowed such claims to be commenced by plaint or even counterclaim.

Orders:-

The matter (ELC No. 2 of 2019 Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & Fredrick Maina Mwangi (Nakuru) was transferred to Chief Magistrates Court Nakuru for hearing and determination.

Parties were at liberty to make an appropriate application before the subordinate court for consolidation of the matter and Nakuru CM ELC Case No. 330 of 2018 Benjamin Kiiru Mwangi v Patrick Ndegwa Munyua.

Costs to be in the cause.

Extract:

Cases

East Africa

1.

AHAD v CJE

Civil Appeal No 196 of 2017 [2019] eKLR – (Explained)

2.

Chevron (K) Ltd v Harrison Charo Wa Shutu

Civil Appeal No 17 of 2016 [2016] eKLR – (Mentioned)

3.

In the Matter of Interim Independent Electoral Commission

[2011] 2 KLR 32 – (Explained)

3.

Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others

Civil Appeal No 287 of 2016 [2017] eKLR – (Explained)

4.

Lewa, Mtana v Kahindi Ngala Mwagandi

Civil Appeal No 56 of 2014 [2015] eKLR – (Explained)

4.

Noordin, Gulam Miriam v Julius Charo Karisa

Civil Appeal No 26 of 2015 [2015] eKLR – (Mentioned)

Texts and Journal

1.Garner, BA., (Ed) (2009)

Black’s Law Dictionary

: West Group 9

th

Edn

Statues

East Africa

1.Civil Procedure Act (cap 21) section 2 – (Interpreted)

2.Civil Procedure Rules, 2010 (cap 21 Sub Leg) order 37 rule 7, 16,17,18 – (Interpreted)

3.Constitution of Kenya, 2010 article 6(3; 23(2); 48; 162(2)(b); 169; 259; Sixth Schedule section 7(1) – (Interpreted)

4.Environment and Land Court Act, 2011 (Act No 19 of 2011) section 13, 26(3)(4) – (Interpreted)

5.Limitation of Actions Act (cap 22) section 38 – (Interpreted)

6.Magistrates Courts Act, 2015 (Act No 26 of 2015) section 9(a) – (Interpreted)

Advocates:

None Mentioned

Case Outcome:

Application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAKURU

CASE NO. 2 OF 2019

PATRICK NDEGWA MUNYUA ............. PLAINTIFF

VERSUS

BENJAMIN KIIRU MWANGI .......1

ST

DEFENDANT

FREDRICK MAINA MWANGI ....2

ND

DEFENDANT

RULING

1. The plaintiff commenced proceedings in this case on 9

th

January 2019 through Originating Summons of even date whereby he seeks a declaration that he has acquired the parcel of land known as Bahati/Kabatini Block 1/9983 (hereinafter “the suit property”) through adverse possession. The record herein shows that the defendants entered appearance on 27

th

February 2019 but have so far not filed any response to the Originating Summons.

2. Shortly after filing the Originating Summons, the plaintiff filed Notice of Motion dated 14

th

January 2019 in which he seeks orders that

Nakuru CM ELC Case No. 330 of 2018 Benjamin Kiiru Mwangi vs. Patrick Ndegwa Munyua

be transferred to this court for trial and disposal and be consolidated with this case. The said application is the subject of this ruling. It is supported by an affidavit sworn by Mr Githui John, counsel on record for the plaintiff/applicant. He deposed that when the plaintiff herein started making claims of adverse possession in respect of the suit property, the 1

st

defendant herein filed

Nakuru CM ELC Case No. 330 of 2018 Benjamin Kiiru Mwangi vs. Patrick Ndegwa Munyua

in the subordinate court alleging trespass. He added that although both matters relate to the same parties and the same subject matter, the claim for adverse possession can only be heard by this court.

3. At the hearing of the application, Mr Chege learned counsel for the defendants argued, without citing any particular section, that the

Magistrates' Courts Act, 2015

grants subordinate court’s jurisdiction to handle adverse possession claims and that since the value of the subject matter is within the pecuniary jurisdiction of the subordinate court, this suit should instead be transferred to the subordinate court for consolidation with the matter pending there. In response, Mr Githui, learned counsel for the plaintiff stated that he would have no objection to transfer of this matter to the subordinate court if the said court has jurisdiction to handle claims in the nature of adverse possession.

4. I have carefully considered the application and the submissions of counsel. A perusal of the plaint in

Nakuru CM ELC Case No. 330 of 2018

shows that the said case was filed on 19

th

November 2018, almost 2 months before this case was filed. In the said case, Benjamin Kiiru Mwangi (the 1

st

defendant herein) alleges that he is the registered proprietor of the parcel of land known as Bahati/Kabatini Block 1/9983 and adds that Patrick Ndegwa Munyua (the plaintiff herein) has trespassed into the said property and is claiming its ownership. He therefore seeks a declaration that he is the absolute owner of the property, a permanent injunction restraining Patrick Ndegwa Munyua from trespassing into or dealing with the property and damages for trespass. It is thus clear that save for the issue of adverse possession, the parties and the subject matters in the two matters are the same.

5. In any litigation, jurisdiction is central. A court of law cannot validly take any step without jurisdiction. The Supreme Court stated

In the Matter of Interim Independent Electoral Commission

[2011] eKLR

as follows:

[29] Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in

Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited

[1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):

“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.”

[30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.

6. If the magistrates’ court has jurisdiction to hear and determine claims in the nature of adverse possession, there would be no difficulty in having this matter transferred to Chief Magistrate’s Court Nakuru for hearing and determination. Parties are in agreement that the value of the suit property falls within the pecuniary jurisdiction of the magistrates’ court. Thus, the only issue for determination is whether magistrates’ courts have jurisdiction to hear and determine claims in the nature of adverse possession.

7. Asike-Makhandia, JA described adverse possession in

Mtana Lewa v Kahindi Ngala Mwagandi

[2015] eKLR

as follows:

Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.

This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act, which is in these terms:-

“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

8. Section 38

of the

Limitation of Actions Act

only specifies the High Court as the court before which a person who claims to have become entitled to land by adverse possession may seek an order that he be registered as the proprietor of the land. The section provides as follows:

38. Registration of title to land or easement acquired under Act.

(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) An order made under subsection (1) shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.

(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) …

[Emphasis supplied]

9. Further provisions regarding how to institute such proceedings are found at

Order 37 Rule 7

of the

Civil Procedure Rules

which states as follows:

7. (1) An application under section 38 of the Limitation of Actions Act shall be made by originating summons.

(2) The summons shall be supported by an affidavit to which a certified extract of the title to the land in question has been annexed.

(3) The court shall direct on whom and in what manner the summons shall be served.

10. Owing to the provisions of

Section 38 (1)

of the

Limitation of Actions Act

which specifically refer to the High Court, claims in the nature of adverse possession have traditionally been filed in the High Court and following the enactment of the

Environment and Land Court Act, 2011

, in this court. That is in line with the jurisdiction of this court to hear and determine disputes relating to the environment and the use and occupation of and title to land as provided for under

Article 162(2) (b)

of the

Constitution of Kenya, 2010

and at

Section 13

of the

Environment and Land Court Act, 2011

. The said

Section 13

provides as follows:

13. Jurisdiction of the Court

(1) 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

. [Emphasis supplied]

11. Despite the wording of

Section 38 (1)

of the

Limitation of Actions Act

which does not mention any other court, I am not aware of any decision or even argument that doubts the jurisdiction of the Environment and Land Court to hear and determine claims of adverse possession.

12. The judicial system in Kenya also includes the magistrates’ courts as established under

Article 169

of the

Constitution of Kenya, 2010

. Pursuant to

Article 169

(2), parliament is mandated to enact legislation conferring jurisdiction, functions and powers on the magistrates’ courts. In that regard parliament legislated the following provisions at

Section 26 (3)

and

(4)

of the

Environment and Land Court Act, 2011

:

(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

. [Emphasis supplied]

13. Indeed, the Chief Justice has, by various gazette notices, made appointments pursuant to

Section 26 (3)

and

(4)

of the

Environment and Land Court Act, 2011

. Such gazette notices include Gazette Notice No. 1472 dated 1

st

March 2016, Gazette Notice No. 1475 dated 1

4th

March 2016, Gazette Notice No. 11930 dated 5

th

December, 2017 and Gazette Notice No. 2575 dated 28

th

February, 2019. Thus, there exist within the magistrates’ courts, several magistrates duly gazetted and granted jurisdiction and power to handle cases involving occupation and title to land. In particular, I am aware that there are such magistrates serving in Nakuru where

Nakuru CM ELC Case No. 330 of 2018 Benjamin Kiiru Mwangi vs. Patrick Ndegwa Munyua

was filed.

14. Some four years after enactment of the

Environment and Land Court Act, 2011

, parliament also enacted the

Magistrates’ Courts Act, 2015

so as to among others give effect to

Articles 23 (2)

and

169 (1) (a)

and

(2) of the Constitution

and to confer jurisdiction, functions and powers on the magistrates’ courts. The Act came into operation on 2

nd

January, 2016 and its

Section 9 (a)

provides:

A magistrate’s court shall -

(a) in the exercise of the jurisdiction conferred upon it by section 26 of the Environment and Land Court Act (Cap. 12A) 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, choses in action or other instruments granting any enforceable interests in land; and

(v)

environment and land generally

. [Emphasis supplied]

15. The upshot of the provisions at

Section 26 (3)

and

(4)

of the

Environment and Land Court Act, 2011

and

Section 9 (a)

of the

Magistrates’ Courts Act, 2015

is that magistrates who are duly gazetted and have the requisite pecuniary jurisdiction have jurisdiction and power to handle cases involving occupation of and title to land. Claims in the nature of adverse possession involve title to land since the claimant ultimately seeks an order that he be registered as the proprietor of the land. Indeed,

Black’s Law Dictionary, Ninth Edition

defines “

adverse possession

” thus:

1. The enjoyment of real property with a

claim of right

when the enjoyment is opposed to another person’s claim and is continuous, exclusive, hostile, open and notorious.

2. The doctrine by which

title to real property is acquired

as a result of such use or enjoyment over a specific period of time.

[Emphasis supplied]

16. Although

Section 38 (1)

of the

Limitation of Actions Act

specifically refers to the High Court without mention of the magistrates’ courts, it must be remembered that is an old statute that came into operation way back on 1

st

December 1967 compared to the more recent

Environment and Land Court Act, 2011

and the

Magistrates’ Courts Act, 2015

, both of which were enacted after promulgation of the Constitution of Kenya, 2010. I have already mentioned at paragraph 14 above, the purposes of

Magistrates’ Courts Act, 2015

. The purposes of the

Environment and Land Court Act, 2011

are captured in its preamble as follows:

An Act of Parliament to give effect to Article 162 (2) (b) of the Constitution; to establish a superior court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land, and to make provision for its jurisdiction functions and powers, and for connected purposes

.

17. Since

Section 38 (1)

of the

Limitation of Actions Act

predated the Constitution of Kenya, 2010, its interpretation must be guided by

Section 7 (1)

of the

Sixth Schedule

of the Constitution of Kenya titled

Transitional and Consequential Provisions

which provides:

All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution

.

18. The alterations, adaptations, qualifications and exceptions referred to above must give

Section 38 (1)

of the

Limitation of Actions Act

conformity to

Section 26 (3)

and

(4)

of the

Environment and Land Court Act, 2011

and

Section 9 (a)

of the

Magistrates’ Courts Act, 2015

both of which were enacted to give effect

Article 162(2) (b)

and

Article 169(1) (a)

and

(2)

of the

Constitution

. So as attain that conformity,

Section 38 (1)

of the

Limitation of Actions Act

must be construed as not depriving magistrates who are duly gazetted and have the requisite pecuniary jurisdiction, of the jurisdiction and power to handle cases involving occupation of and title to land, including adverse possession which is essentially a dispute on title to land. Such an interpretation is further in line with

Article 259

which enjoins the court to interpret the constitution in a manner that promotes its purposes, values and principles.

19. Among the principles of the constitution are devolution and access to services.

Articles 6(3)

and

48

of the Constitution have the combined effect of requiring devolution of and access to judicial services as well as access to justice for all persons. Allowing magistrates’ courts to handle adverse possession claims will certainly make it possible for more litigants to access justice since magistrates’ courts are more widely distributed in most parts of the country as opposed to this court which is yet to be stationed in all the counties. The Court of Appeal stated in

Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others

[2017] eKLR

as follows:

… what then is the status of magistrates’ courts vis a vis the jurisdiction to hear and determine disputes relating to employment and labour relations and the environment and the use and occupation of, and title to, land? …

59. Lenaola, J (as he then was) grappled with the question “whether the jurisdiction to hear and determine new cases relating to the environment and use and occupation of, and title to land vested exclusively on the Environment and Land Court established under Article 162(2) of the Constitution” in the High Court in the case of

Edward Mwaniki Gaturu & another vs. Hon. Attorney-General & 3 others [2013] eKLR

. The learned Judge had no difficulty in rejecting the argument that magistrates’ courts lack jurisdiction over those matters. The Judge held that the ELC court does not have exclusive jurisdiction to hear and determine such matters. …

65. In our view, conferring jurisdiction on magistrates’ courts to hear and determine does not diminish the specialization of the specialized courts considering that appeals from the magistrates’ courts over those matters lie with the specialized courts. As urged by Mr. Kanjama, under the doctrine of judicial precedent, the decisions of the specialized courts would bind the magistrates’ courts and the specialized courts would therefore undoubtedly imprint the specialized jurisprudence on the magistrates’ courts. …

67. Devolution, access to services and access to justice, among others, are critical pillars of our constitutional architecture. Article 6(3) of the Constitution demands reasonable access to services. Article 48 demands that the state “shall ensure access to justice for all persons.” Access to justice has many facets. One facet is the geographical location of the courts and proximity of the courts to the people intended to be served by the courts. There are undoubtedly more magistrates’ courts in Kenya than there are specialized courts or even High Court stations for that matter. The close proximity of magistrates’ courts to the people ensures efficiency and access to justice at reasonable cost. It would be illogical and unreasonable to prohibit magistrates’ courts from determining land and employment disputes, when it is undeniable that their reach to the citizenry is much wider than that of the specialized courts. Public interest, in our view, would be better served by increasing the number of courts with the capability of resolving such disputes

.

20. Even if one were to argue that the procedure for commencing and prosecuting adverse possession claims as provided for under

Order 37 Rules 7, 16, 17 and 18

of the

Civil Procedure Rules

requires that such proceedings be commenced and prosecuted before a “judge”, I note that the word “judge” is defined at

Section 2

of the

Civil Procedure Act

to mean “the presiding officer of a court”. Thus as used in the

Civil Procedure Act

and the rules thereunder, “judge” does not exclusively refer to judges of the High Court or the Environment and Land Court as established under

Article 162

of the

Constitution

. It includes a magistrate.

21. Can adverse possession claims be said to be complex and requiring the attention of this court as opposed to magistrates’ courts? Certainly not. Even if they were complicated, the subordinate courts already handle much more complicated matters. Adverse possession claims are commenced by originating summons, a procedure reserved for simple and uncomplicated matters. The Court of Appeal restated as much in

AHAD v CJE

[2019] eKLR

:

… It is however established that the procedure of originating summons is not intended for complex matters or matters where facts are contested. As stated by the Court in Kenya Commercial Bank Ltd vs. Osebe (above):

“The procedure of originating summons is intended for simple matters and enables the court to settle them without the expense of bringing an action. The procedure is not intended for determination of matters that involve serious questions. The procedure should not be used for the purpose of determining disputed questions of fact.

The procedure of originating summons is designed for the summary or ad hoc determination of points of law, construction or certain specific facts for obtaining of specific directions of the court such as trustees, administrators or the courts execution officers”

.

22. In fact, it is no longer a requirement that adverse possession claims be commenced by way of originating summons. Case law now allows one to commence them by plaint or even counterclaim. See

Gulam Miriam Noordin v Julius Charo Karisa

[2015] eKLR

and

Chevron (K) Ltd v Harrison Charo Wa Shutu

[2016] eKLR

. From a procedural perspective, adverse possession claims are as ordinary as any other matters that one finds in the cause list in the magistrates’ courts.

23. In view of the foregoing discourse, there are ample reasons 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.

24. As previously noted,

Nakuru CM ELC Case No. 330 of 2018 Benjamin Kiiru Mwangi vs. Patrick Ndegwa Munyua

was filed on 19

th

November 2018, almost 2 months before this case was filed. Since there exist in Nakuru magistrates duly gazetted under

Section 26 (3)

of the

Environment and Land Court Act, 2011

and granted jurisdiction and power to handle cases involving occupation and title to land, I make the following orders:

i. This matter (ELC No. 2 of 2019 Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & Fredrick Maina Mwangi (Nakuru)) is hereby transferred to Chief Magistrates Court Nakuru for hearing and determination.

ii. Parties are at liberty to make an appropriate application before the subordinate court for consolidation of this matter and Nakuru CM ELC Case No. 330 of 2018 Benjamin Kiiru Mwangi vs. Patrick Ndegwa Munyua.

iii. Costs shall be in the cause.

25. It is so ordered.

Dated, signed and delivered in open court at Nakuru this 30

th

day of January 2020.

D. O. OHUNGO

JUDGE

In the presence of:

No appearance for the plaintiff/applicant

No appearance for the defendants/respondents

Court Assistants: Beatrice & Lotkomoi