All Claims of Adverse Possession to Be Filed at the Environment & Land Court: Court of Appeal Rules

1. Introduction and Background

1. The Constitution of Kenya 2010 established the Environment and Land Court (ELC) as a specialised court to deal exclusively with environment and land disputes. With the establishment of these specialized courts, there has been contentions and need for clarity on the contours of subject matter jurisdiction that can be exercised by the Court.
2. This legal alert examines the Court of Appeal’s decision in Sugawara v Kiruti. This judgment has provided much-needed clarity on a longstanding and contentious issue: whether magistrate courts have jurisdiction to adjudicate claims of adverse possession, holding that only the Environment and Land Court can hear claims of adverse possession in the first instance.
3. Some judicial pronouncements from the Environment and Land Court had previously affirmed that magistrate courts have the requisite jurisdiction to hear and determine adverse possession claims- Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & Another, Christopher Kangogo Cheboiboch v Susan Chepichi Chepkiyeng, and Philip Kithaka v Mercy Karimi Nyaga while another line of jurisprudence from the Environment and Land Court has categorically held that magistrate courts lack jurisdiction over adverse possession claims- Michael Chebii Toroitich v Peter Mogin Yatich Chebii, Jesee Njoroge Gitau v Kibuthu Macharia & Another, Njoki Wainaina v Josephat Thuo Githachuri & 3 others; National Land Commission & Another (Interested Parties), and Reuben v Mwangangi & 7 Others.
4. These decisions which were binding on the magistrate courts led to uncertainty and unpredictability in the law. This necessitated the clarification by the Court of Appeal which has since provided clarity on the issue.

2. Sugawara v Kiruti

The issue framed by the Court of Appeal for determination:

i. Whether magistrate courts have jurisdiction to hear and determine claims of adverse possession

5. The Court of Appeal firmly held that magistrate courts lack the requisite jurisdiction to hear and determine adverse possession claims. In reaching this determination, the court relied on the provisions of the Limitation of Actions Act, Cap 22, Laws of Kenya. Specifically, Section 37(1) of the Act expressly stipulates that any person asserting entitlement to land by way of adverse possession must apply to the High Court for an order directing their registration as the proprietor.
6. While it is undisputed that the High Court, as constituted under the Constitution of Kenya, 2010,, does not have jurisdiction over matters expressly reserved for the courts established under Article 162(2) of the Constitution of Kenya, 2010, as reinforced by Article 165(5)(b), the primary contention preceding the Court of Appeal judgment was whether adverse possession claims ought to be adjudicated exclusively by the Environment and Land Court (ELC), which holds the status of the High Court, or whether magistrate courts could exercise concurrent jurisdiction in such matters.
7. The Court of Appeal was of the view that Section 37(1) of the Limitation of Actions Act underscores the legislative intent to vest jurisdiction over adverse possession claims exclusively within the domain of a superior court and the only court vested with jurisdiction to hear and determine adverse possession claims is the Environment and Land Court, as envisaged under Article 162(2) of the  Constitution of Kenya, 2010.

ii. Implication

The immediate consequence of this judgment is that all pending adverse possession claims before magistrate courts are improperly instituted. However, litigants retain the right to withdraw their claims and subsequently file them before the appropriate forum, the Environment and Land Court (ELC). Additionally, an inevitable ripple effect of this decision will be an increase in the caseload within the Environment and Land Court, as claims previously adjudicated at the magistrate court level will now be funnelled exclusively to the ELC.

iii. Conclusion

The Court of Appeal’s decision is a significant judicial pronouncement that has effectively resolved longstanding uncertainty and discord regarding the jurisdiction of magistrate courts in adverse possession claims. By providing a definitive legal position, the judgment has eliminated ambiguity and confusion, fostering clarity, consistency, and predictability in the adjudication of land disputes.

Disclaimer: The above information is for general informational purposes only and does not constitute legal advice. Readers are encouraged to seek professional legal counsel for specific advice tailored to their individual circumstances. The author disclaims any liability for any actions taken or not taken based on the contents of this document.

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