The question of whether Magistrates' Courts are vested with jurisdiction to adjudicate claims of adverse possession has elicited divergent judicial interpretations. Two main schools of thought have emerged. One contends that the magistrates' courts have jurisdiction while the second one disputes this position and places the jurisdiction exclusively under the Environment and Land Court.
A. JUSTIFICATION OF THE COMPETENCE OF MAGISTRATES' COURTS IN ADVERSE POSSESSION CLAIMS
The first contends that the Magistrates' Courts do indeed have jurisdiction, relying on section 26(3) and (4) of the Environment and Land Court Act, 2011, alongside section 9 of the Magistrates' Courts Act, 2015. This perspective posits that duly gazetted magistrates may hear land-related disputes, including adverse possession, as long as they fall within their prescribed pecuniary limits.
Section 26(3) of the Environment and Land Court Act provides that:
"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."[1]
Subsection (4) further clarifies:[2]
"Subject to Article 169(2) of the Constitution, the Magistrate appointed under subsection (3) shall have jurisdiction to handle—
(a) disputes relating to offences defined in any Act of Parliament dealing with environment and land; and
(b) matters of a 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 added)
Correspondingly, section 9 of the Magistrates' Courts Act delineates the jurisdiction of magistrates in the following terms:[3]
"A magistrate 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, hear and determine claims relating to:
(i) environmental planning and protection, climate issues, land use planning, title tenure, boundaries, rates, rent, valuation, 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 interest in land; and
(v) environment and land generally."
In Patrick Ndegwa Munyua v Benjamin Mwangi & Another,[4] Justice Ohungo interpreted the above provisions as conferring jurisdiction on gazetted magistrates to determine adverse possession claims, provided that such claims fall within the monetary thresholds defined in law. A similar conclusion was reached in Elot & Another (Suing for themselves and as Administrators of the Estate of Peter Loroto Larai (Deceased)),[5] where the court endorsed the competence of the Magistrates' Court to entertain such matters and stated as follows:
A Chief Magistrate presides over a claim for ownership of land valued at Kshs 20,000,000/= based on the Constitution, ELC Act and Magistrates Court Act, there is no reason why he cannot adjudicate over a claim for adverse possession of land whose value is Kshs 500,000/= then an appeal against his decision will lie to the ELC. This would ensure the efficient disposal of adverse possession claims for land whose value falls within the jurisdiction of the Magistrates... The interpretation that it is only the ELC which can handle adverse possession claims will deprive litigants with adverse possession claims who do not live close to an ELC court of their right to access justice from the closest court presided over by a gazetted Magistrate with jurisdiction.
B. THE IMPERMISSIBILITY OF EXTENDING ADVERSE POSSESSION JURISDICTION TO MAGISTRATES' COURTS
However, the above interpretation is not without contest. A contrasting school of thought, more recently affirmed by the Court of Appeal, maintains that Magistrates' Courts lack jurisdiction over adverse possession claims. In Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiruti,[6] the appellate court stated:
"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."
Section 38(1) of the Limitation of Actions Act provides that:
"Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37… he may apply to the High Court for an order that he be registered as the proprietor of the land or lease…" (Emphasis added)
Moreover, section 38(4) authorises:
"The proprietor, the applicant and any other person interested may apply to the High Court for determination of any question arising under this section."
In light of these express provisions, the Court of Appeal reasoned:
"In other words, reference 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."[7]
Thus, the Court concluded that only the Environment and Land Court, established pursuant to Article 162(2)(b) of the Constitution, possesses the jurisdiction to determine adverse possession claims. Despite the statutory expansion of the Magistrates' Court jurisdiction under section 9 of the Magistrates' Courts Act, the Court noted:
"…various matters are specified for determination but claims for adverse possession are not included."[8]
This interpretation is anchored in the broader principle of jurisdiction as set out in Republic v Karisa Chengo & 2 Others,[9] where the Supreme Court held:
"A court's jurisdiction flows either from the Constitution or legislation or both thus a court of law only exercises jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred by law."
The Court of Appeal observed that had Parliament intended to confer jurisdiction over adverse possession matters upon Magistrates' Courts, it would have done so in unequivocal terms. Consequently, the court adopted a strict reading of section 38 of the Limitation of Actions Act, ultimately holding:
"…in view of the express provisions of section 38 of the Limitation of Actions Act… we find that the Magistrates' Courts do not have the jurisdiction to determine claims of adverse possession."
In reaching this decision, the Court also noted the prevailing consensus within the Environment and Land Court. It cited a number of decisions that support the view that Magistrates' Courts lack jurisdiction over such claims, including Jesse Njoroge Gitau v Kibuthu Macharia & Another;[10] Michael Chebii Toroitich v Peter Mogin Yatich Chebii;[11] Njoki Wainaina v Josephat Thuo Githachiri & 3 Others;[12] and Reuben v Mwanagangi & 7 Others.[13]
Additionally, the Court of Appeal highlighted a practical concern, namely, the pecuniary jurisdictional limits imposed on Magistrates' Courts under section 7 of the Magistrates' Courts Act. Since the value of land in adverse possession claims is often indeterminate or potentially exceeds the monetary thresholds of the subordinate courts, this further militates against vesting such courts with jurisdiction.[14]
C. ANALYSIS AND CONCLUSION
It may be argued that Parliament, under Section 26(4) of the Environment and Land Court Act, contemplated a scenario whereby all matters concerning occupation or title to land including the matters of adverse possession could be litigated before a magistrate's court so long as the magistrate had been gazetted and the matter falls within the pecuniary jurisdiction of the court. However, noting that Parliament had established the scope of the jurisdiction of a magistrate court in land matters under section 9 of the Magistrates' Courts Act, it is highly doubtable if the court could apply that holding.
The omission of adverse possession from the detailed list of matters therein suggests a deliberate legislative choice to exclude such claims from the competence of Magistrates' Courts.
Secondly, in interpreting the competing statutory provisions, the doctrine of lex specialis derogat legi generali is also instructive. This canon of construction provides that a specific statute overrides a general one where both deal with the same subject matter. In this case, Section 38 of the Limitation of Actions Act expressly and specifically governs claims for adverse possession, stating in unambiguous terms that:
"He may apply to the High Court for an order that he be registered as the proprietor of the land..." (section 38(1)).
By contrast, section 26 of the Environment and Land Court Act and section 9 of the Magistrates' Courts Act confer general jurisdiction over civil disputes concerning land use, occupation, and title, but make no specific reference to adverse possession.
Accordingly, under the principle of lex specialis, section 38 prevails as the operative provision in determining the appropriate forum for adverse possession claims. It follows that, despite the broad language used in the other statutes, the Limitation of Actions Act takes precedence, and the jurisdiction in such matters remains exclusively with the Environment and Land Court, as a specialised court under Article 162(2)(b) of the Constitution.
In light of the above, and given that subordinate courts are bound by decisions of the superior courts, the holding in Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiruti[15] remains as the ruling jurisprudence unless reviewed or overturned[16] affirming that Magistrates' Courts lack jurisdiction to determine claims of adverse possession.
[1] Environment and Land Court Act 2011, s. 26(3).
[2] Ibid, s. 26(4).
[3] Magistrates' Courts Act 2015, s. 9.
[4] [2020] eKLR.
[5] [2023] KEELC 5886 (KLR).
[6] [2024] KECA 1417 (KLR).
[7] Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiruti [2024] KECA 1417 (KLR).
[8] Ibid.
[9] (2017) eKLR.
[10] [2019] eKLR.
[11] [2013] eKLR.
[12] [2021] eKLR.
[13] [2023] KEELC 21899 (KLR).
[14] Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiruti [2024] KECA 1417 (KLR).
[15] Ibid.
[16] Kimeto v Omwomo [2024] KEELC 13848 (KLR).
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