Chelanga & 3 others v Bundi & 4 others (Environment and Land Appeal E020 of 2023) [2025] KEELC 7054 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled magistrates' courts cannot decide adverse possession claims, voiding a land judgment and sending the case back for a fresh hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.If the lower court had jurisdiction to hear and determine the suit.
- 2.Whether the appeal has merit.
- 3.What is the order as to costs?
Key legal issues
#Whether the magistrates' court had jurisdiction over an adverse possession claim under Section 38 of the Limitation of Actions Act
The trial court lacked jurisdiction; Section 38 vests jurisdiction over adverse possession claims in the High Court, and magistrates' courts lack competence over such claims.
The court held that Section 38 of the Limitation of Actions Act designates the High Court as the forum for adverse possession claims. The Sugawara v Kiruti decision merely restated existing law; no change of judicial regime occurred that would have given the lower court jurisdiction at the time. The suit had been transferred suo moto by the ELC, so the parties bore no fault, but the proceedings remained a nullity.
What remedy follows from the nullity of the trial proceedings
The proceedings and judgment were declared a nullity and the suit remitted for hearing de novo before the ELC on a priority basis.
Since the evidence was taken by a court without jurisdiction, nothing of value remained on record for the appellate court to determine the appeal. Invoking Section 78 of the Civil Procedure Act and Order 43 Rule 25, the court found the appropriate course was to nullify the proceedings and direct a fresh hearing before itself on a priority basis, with no order as to costs given the parties' lack of fault.
Legal principles established
#- Jurisdiction is foundational; without it a court cannot act.
- Proceedings and judgments of a court without jurisdiction are a nullity.
- A mistake in transfer of a suit by the court itself is not attributable to the parties and equity demands a remedy.
Court orders
#- 1.The proceedings and judgment of the lower court are declared a nullity for want of jurisdiction.
- 2.The matter shall proceed for hearing before this court (ELC Kitale) on a priority basis.
- 3.No order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (suit transferred suo moto from the Environment and Land Court on 7/4/2021)
- Jurisdiction invoked
- Sections 26(3) and (4) of the Environment and Land Court Act; Section 9(a) of the Magistrates' Court Act; Section 78 of the Civil Procedure Act; Order 43 Rule 25 of the Civil Procedure Rules
Relief refused
#Final determination of the adverse possession claim on appeal
The evidence was taken by a court without jurisdiction, so there is no sufficient evidence available to determine the suit on appeal.
Costs
There will be no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Jurisdiction is everything; without it, a court has to put down its tools.
The court finds that the best cause of action is to declare the proceedings and the judgment at the lower court a nullity.
The court directs that the matter proceed for hearing before this court on a priority basis. There will be no order as to costs.
Issues in the judgment
#The judgment refers to the appellants inconsistently as 'appellants' and 'the applicant', and describes them as defendants below; the respondents are not individually named in full.
The disposition declares the trial proceedings a nullity but also effectively sets aside/remits the matter, and the numbered issues (three) are stated as 'two issues'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chelanga & 3 others v Bundi & 4 others (Environment and Land Appeal E020 of 2023) [2025] KEELC 7054 (KLR)", Case Analysis (2025). Amended Memorandum of Appeal dated 18/3/2025 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7054/eng@2025-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.