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ELCOtherAmended Memorandum of Appeal dated 18/3/2025 (number not stated in judgment)

Chelanga & 3 others v Bundi & 4 others (Environment and Land Appeal E020 of 2023) [2025] KEELC 7054 (KLR)

Environment and Land Court
15 October 2025
1,610 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was an appeal to the Environment and Land Court at Kitale (C.K. Nzili, J) against a magistrates' court judgment that had allowed an Originating Summons dated 15/7/2019 in which the respondents (as plaintiffs) sought a declaration that they were entitled to Title No. Kapkoi/Mabonde Block 1/Ex-Prison/206 by adverse possession. The plaintiffs testified that their family entered the land in December 1999, built homes, farmed commercially, and buried both parents on the land, extinguishing the title under Section 38 of the Limitation of Actions Act. The defendants (now appellants) claimed the occupation was under a licence from the deceased registered owner that ended with his death. The suit had been transferred suo moto by the ELC to the lower court on 7/4/2021. On appeal, the appellants argued the trial court lacked jurisdiction; the respondents relied on Sections 26(3) and (4) of the Environment and Land Court Act and Section 9(a) of the Magistrates' Court Act, invoking Patrick Ndegwa Munyua and arguing legitimate expectation, and that Sugawara v Kiruti introduced no change of regime. The court framed three issues: jurisdiction, merit of the appeal, and costs. Holding that Section 38 confers jurisdiction on the High Court and that Sugawara merely restated the law, the court found the trial proceedings a nullity. Since the evidence was taken by a court without jurisdiction, the appeal could not be determined on the record. The court declared the proceedings and judgment a nullity and directed the matter to proceed to hearing before the ELC on a priority basis, with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.If the lower court had jurisdiction to hear and determine the suit.
  2. 2.Whether the appeal has merit.
  3. 3.What is the order as to costs?

Key legal issues

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01

Whether the magistrates' court had jurisdiction over an adverse possession claim under Section 38 of the Limitation of Actions Act

Holding

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.

Reasoning

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.

p. 3
02

What remedy follows from the nullity of the trial proceedings

Holding

The proceedings and judgment were declared a nullity and the suit remitted for hearing de novo before the ELC on a priority basis.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The proceedings and judgment of the lower court are declared a nullity for want of jurisdiction.
  2. 2.The matter shall proceed for hearing before this court (ELC Kitale) on a priority basis.
  3. 3.No order as to costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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.

p. 4

Costs

There will be no order as to costs.

Quotable passages

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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.
p. 4Foundational nature of jurisdiction
The court finds that the best cause of action is to declare the proceedings and the judgment at the lower court a nullity.
p. 4Nullity of proceedings before a court without jurisdiction
The court directs that the matter proceed for hearing before this court on a priority basis. There will be no order as to costs.
p. 4Final orders

Issues in the judgment

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minor

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.

minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.