https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4346

Awadh & another v Mzee (Suing as Trustee of the Wakf of Mohamed Bin Mzee and Ahmed Mzee) (Environment and Land Miscellaneous Case E102 of 2025) [2026] KEELC 4346 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4346 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Miscellaneous Case E102 of 2025 A Ombwayo, J July 9, 2026 In The Environment And Land Court Of Kenya At Mombasa County Court Name: Mombasa Environment And Land Court Case Number: Elclmisc/e102/2025 Esha Mohamed Awadh & Mohamed Awadh Galole Vs Fauzia Mohamed Mzee- Suing As Trustee Of The Wakf Of Mohamed Bin Mzee And Ahmed Mzee Between Esha Mohamed Awadh 1st Plaintiff Mohamed Awadh Galole 2nd Plaintiff and Fauzia Mohamed Mzee (Suing as Trustee of the Wakf of Mohamed Bin Mzee and Ahmed Mzee) Defendant Ruling 1.This ruling is in respect of the Applicants Notice of Motion application dated 28th October, 2025 which seeks the following orders:a.Spentb.Spentc.That this Honourable Court be pleased to call for the record of the proceedings before the Magistrates court being MCELC No 69 of 2020 (Mombasa), Fauzia Mohamed Mzee (Suing as Trustee of the Wakf of Mohamed Bin Mzee and Ahmed Mzee) vs Esha Mohamed Awadh & Mohamed Awadh Galole and give directions as appropriate for the hearing of the said suit alongside the Applicants’ defence on limitation.d.That in the alternative, this Honourable Court be pleased to withdraw MCELC No. 69 of 2020 (Mombasa), Fauzia Mohamed Mzee (Suing as Trustee of the Wakf of Mohamed Bin Mzee and Ahmed Mzee) vs Esha Mohamed Awadh & Mohamed Awadh Galole from the Magistrates Court and transfer it to this Court for hearing and disposal.e.That costs of this application be borne by the Respondent in any event. 2.The application is supported by the annexed affidavit of Mohamed Awadh Galole, the 2nd Applicant sworn on 28th October, 2025. He deponed that the Respondent filed a suit in the subordinate court on 23rd July, 2020 vide Plaint dated 8th July, 2020 seeking vacant 3.possession and/or injunctive orders against the Applicants in respect of Plot No 1585/VI/MN, CR No 10544 being MCELC No 69 of 2020 (Mombasa). 4.He deponed that they filed a Notice of Preliminary objection dated 26th May, 2025 contesting the Magistrate’s court jurisdiction on account of the defence on limitation. It was the 2nd Applicant’s deposition that through a ruling delivered on 15th August, 2025 the court overruled the objection and ordered for the suit to proceed to hearing. The Applicants asked the court to give directions regarding land matters where the defence of limitation or counter-claims on limitations have been filed in the Magistrates court. The 2nd Applicant asked the court to allow the application. 5.Ali Ahmed Mohamed, the Applicant’s counsel filed a Replying Affidavit sworn on 17th December, 2025. He deponed that the primary suit does not include a claim for adverse possession hence it was properly before the trial court for determination. He deponed that the Applicants objection was properly determined and if the applicants intend to raise a claim of adverse possession, they may do so by filing an application as prescribed by law. He asked the court to dismiss the application with costs. Applicants Submissions 6.Counsel for the Applicants filed submissions dated 17th April, 2026. Counsel submitted that the Applicants have established a proper case for the exercise of the High Court’s supervisory jurisdiction under Article 165 (6) and (7) of the Constitution as the magistrate’s court in MCELC No 69 of 2020 is proceeding with a suit in which a defence of limitation/adverse possession has been raised. 7.Counsel relied on the case of Pauline Chemuge Sugawara vs Nairuko Ene Mutarakwa Kiruti & 3 others and submitted that the magistrates court lack jurisdiction over adverse possession. Counsel submitted that the magistrate’s refusal to strike out the suit constitutes a jurisdictional error. Reliance was also placed on the following cases: Stephen S. Nteere Inoti vs M’twaruchiu Ntunguri Ikwinga & another [2011] KEHC 1865 (KLR), Peter Kariuki Mwangi & 2 others vs County Government of Kiambu & 2 others [2020] eKLR, Republic vs Chief Magistrates Court at Mombasa Ex parte Muhammed Abdulrahman Said [2020] eKLR, E-Cart Services T/a Jumia Kenya Ltd vs Enos Riungu Mugendi HCCA No e095 of 2023 (Nairobi), Alfeen Mehdimohammed vs Basil Feroz Mohamed & 223 Others (COACA No 84 of 2015), Republic vs Chairperson Business Rent Tribunal Nairobi Ex parte Pravin Bowry [2014] eKLR, Phoenix of E.A Assurance Company Limited vs S.M Thiga t/a Newspaper Service [2017] eKLR and Republic vs Chief Magistrates Court at Murang’a Ex parte Robert Maina Mwangi [2016] eKLR. Counsel asked the court to allow the application with costs. Analysis And Determination 8.The issue for determination is whether the applicant is entitled to the orders sought. It is now settled law in that subordinate courts lack jurisdiction to entertain and determine claims for adverse possession, which are exclusively within the jurisdiction of the Environment and Land Court. In the case of Sugawara v Kiruti (Sued in her capacity as the administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others [2024] KECA 1417 (KLR), the Court of Appeal held that in view of the express provisions of section 38 of the Limitation of Actions Act, the Magistrates’ Courts do not have jurisdiction to determine the claims of adverse possession. 9.In this case, the Applicant contends that they invoked the defence of limitation in their statement of defence dated 9th December, 2020. This court notes that there is no counter- claim filed by the applicants in the lower court. During the hearing, if at all the lower Court is of the view that the defence of limitation is merited thus lacking jurisdiction, it can stop there and make no further orders. This court finds that the Notice of Motion application dated 28th October, 2025 lacks merit and is hereby dismissed with costs. SIGNED BY/FOR:THE JUDICIARY OF KENYA HON. JUSTICE ANTONY O. OMBWAYOMombasa Environment and Land CourtEnvironment and Land Court Date: 2026-07-09 21:57:18