https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12133

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT HOMA BAY** **ELC APPEAL NO. E013 OF 2024** **BOB OTIENO OSEWE** …..………………………….……..…….. **APPELLANT** **VERSUS** **DANIEL OJIJO ABADE**…………………………………...……**RESPONDENT** *(Being an appeal against the whole judgment of Hon. E.M Onzere delivered on the 12th day of April 2024 in Ndhiwa Principal Magistrate’s ELC NO. E010 OF 2021)* **JUDGEMENT** 1. This is a first appeal arising from the judgment of the Hon. E.M Onzere delivered on the 12th day of April 2024 in Ndhiwa Principal Magistrate’s ELC NO. E010 OF 2021 where the learned trial Magistrate allowed the plaintiff claim, the respondent herein as follows; 2. The plaintiff is entitled to land number Kanyamwa/Kabonyo/Kwandiku/597 by virtue of adverse possession. 3. The defendant to execute the documents necessary for the land to be transferred to the plaintiff failure to which the Court Administrator Ndhiwa Law Courts to execute the transfer documents on behalf of the defendant so that the land is transferred to the plaintiff. 4. The plaintiff will have costs of the suit. 5. Being dissatisfied with the entire judgment, the appellant lodged the present appeal vide a Memorandum of Appeal dated 15th April 2024 containing fourteen (6) grounds of appeal. The gravamen of the appeal is that the learned trial magistrate misdirected herself to rely on the law of adverse possession and consequently arrived at an erroneous decision. The appellant contends that the pleadings of the Respondent were not clear as to what specific orders the Respondent wanted the court to issue. Also, that the Court failed to call for evidence with regards to Adverse possession yet it was biased to rely on incomplete evidence from the Respondent. 6. The Appellant prayed that this Court quash and set aside the entire judgement of the Subordinate Court and to allow costs at the Subordinate Court and costs in this Court with interest as from the date of Judgment of this Court until payment in full. 7. The record shows that the respondent commenced proceedings before the subordinate court by way of plaint dated 4th March 2021. In the said plaint, the respondent sought judgement against the appellant for; Specific performance, costs and interest 8. The appeal was disposed of by way of written submissions. Both parties duly filed and exchanged their respective submissions, which this Court has carefully considered together with the record of appeal, the judgment of the trial court and the applicable law. **ISSUES FOR DETERMINATION** 1. Having considered the Memorandum of Appeal, the record of appeal, the judgment of the trial court, the rival submissions of the parties and the applicable law, the issues that fall for determination are: * 1. Whether the subordinate court had jurisdiction to entertain and determine a claim founded on adverse possession. 2. Depending on the answer to the foregoing issue, whether the appellant is entitled to the reliefs sought in this appeal. **ANALYSIS AND DETERMINATION** 1. As a first appellate court, this Court is under a duty to reconsider and re-evaluate the evidence that was presented before the trial court and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and therefore giving due allowance for that fact. **See *Selle & Another v Associated Motor Boat Co. Ltd & Others* [1968] EA 123**. 2. Before considering the merits of the appeal, however, this Court must first determine whether the subordinate court possessed the requisite jurisdiction to entertain and determine a claim founded on adverse possession. The question of jurisdiction is fundamental, for without jurisdiction a court has no authority to adjudicate upon a dispute. If it is found that the trial court lacked jurisdiction, then the entire proceedings and the resultant judgment would be nullity ab initio, and it would be unnecessary to delve into the merits of the appeal. The issue of jurisdiction must therefore be addressed as a threshold question before considering the substantive grounds of appealTop of Form. 3. The respondent's claim before the subordinate court was commenced by a plaint dated 4th March 2021 in which the principal relief sought was an order of specific performance. However, at paragraph 11 of the plaint, the respondent pleaded that ***“by reason of his occupation, the defendant’s right to title to the suit property has long been extinguished under the doctrine of prescription by adverse possession.”*** Notwithstanding that the suit had been instituted as an ordinary civil claim for specific performance, the trial court ultimately found that the respondent was entitled to Land Parcel No. **Kanyamwa/Kabonyo/Kwandiku/597** by virtue of adverse possession. The central issue arising on this appeal is whether the trial court had the requisite jurisdiction to entertain and determine a claim founded on adverse possession and to grant relief on that basis in the circumstances of the case. 4. In the famous case of **Owners of Motor Vessel “Lilians” v. Caltex Oil (Kenya) Limited (1989) KLR cited by Mr. Justice E.K. Makori in the Malindi Environment and Land Case No. E007 of 2023 between Pius Kamau Kinuthia and David Mureithi Kanyi & another** Nyarangi JA said; 5. Bottom of Form ***“I think that it is reasonably plaint that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”*** 1. Article 169(2) of the Constitution directed parliament to enact legislation conferring jurisdiction, functions and powers on Magistrate’s courts. Consequently, the Magistrates’ Court Act was enacted to define the jurisdiction of the various subordinate courts. Under Section 7(3) of the Magistrate’s Court Act, the Civil jurisdiction of Magistrates Courts is set out as follows: - ***(3) A magistrate's court shall have jurisdiction in proceedings of a civil nature concerning any of the following matters under African customary law—*** ***(a) land held under customary tenure;*** ***(b) marriage, divorce, maintenance or dowry;*** ***(c) seduction or pregnancy of an unmarried woman or girl;*** ***(d) enticement of, or adultery with a married person;*** ***(e) matters affecting status, and in particular the status of widows and children including guardianship, custody, adoption and legitimacy; and*** ***(f) intestate succession and administration of intestate estates, so far as they are not governed by any written law.*** 1. The jurisdiction of Magistrates over land disputes is further defined at Section 9(a) of the Magistrates’ Court Act as follows: - ***9. Claims in employment, labour relations claims, land and environment cases*** ***A magistrate’s court shall:-*** ***(a) in the exercise of the jurisdiction conferred upon it by section 26 of the Environment and Land Court Act (Cap. 8D) and subject to the pecuniary limits under section 7(1), hear and determine claims relating to—*** ***(i) environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, 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 interests in land; and*** ***(v) environment and land generally;*** 1. It is evident from the above provisions that there is no express statutory provision vesting the Magistrates’ Courts with jurisdiction over claims on adverse possession. That jurisdiction is conferred on the High Court in this case Environment Land Court (ELC) by virtue of Section 38(1) of the Limitation of Actions Act, which specifically provides that: - ***38. Registration of title to land or easement acquired under Act*** ***(1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.*** 1. Section 13 of the ELC Act gives the ELC original and appellate jurisdiction to hear and determine environment and land disputes in accordance with Article 162(2)(b) of Constitution. For this reason, although the Limitation of Actions Act refers to the High Court, the ELC being a court of equal status to the High Court vested with jurisdiction of land disputes, that Jurisdiction then automatically falls on the ELC. 2. The Court of Appeal in ***Sugawara vs 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)***, held that:- ***“In other words, reference is 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. The effect of this interpretation is that, it is only the Environment and Land Court established under Article 162(2)(b) that is mandated to hear these cases. So that, notwithstanding the expansion of the jurisdiction of environment and land usage to Magistrates Courts, it is distinctive that under section 9(a) of the Magistrates Courts Act, various matters are specified for determination, but claims for adverse possession are not included.”*** 1. The Limitation of Actions Act has always been clear with regards to the court in which matters of adverse possession ought to be filed. There is no statute conferring jurisdiction on the Magistrates gazetted by the Chief Justice to entertain adverse possession disputes. 2. It is of significance to note that the trial court flouted the said provisions and allowed it to determine matters of adverse possession contrary to the law. 3. The Magistrates’ Court Act does not expressly bar Magistrates courts from hearing and determining disputes relating to adverse possession claims does not automatically confer them with jurisdiction to entertain the said disputes. 4. It has been held before that jurisdiction cannot be inferred, and neither can it be conferred to a court through judicial craftsmanship nor based on sympathy. 5. The Supreme Court was clear in ***Macharia & Another vs Kenya Commercial Bank Limited & 2 others (Supra)***, stated that:- ***“We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.”*** 1. The Court of Appeal in ***Nairobi Civil Appeal E141 of 2022*** undertook a detailed analysis showing that there are several decisions in which courts held that subordinate courts had no jurisdiction to entertain adverse possession matters. This court is now duty bound to uphold the current prevailing law and its interpretation thereto by the superior court. 2. Having carefully considered the record of appeal, the pleadings, the evidence tendered before the trial court, and the applicable law, this Court finds that the learned Principal Magistrate fell into error by determining the suit on the basis of adverse possession. The respondent's plaint sought, as its principal relief, an order of specific performance of the alleged sale agreement and was also anchored on the doctrine of constructive trust. Although the plaint made a passing reference to adverse possession, no substantive prayer was sought for a declaration of title by adverse possession, nor was the suit commenced in the manner prescribed by law for such a claim. 3. A claim for adverse possession is a distinct and independent cause of action governed by Section 38 of the Limitation of Actions Act, Cap. 22, and Order 37 Rule 7 of the Civil Procedure Rules. Such a claim is required to be commenced by way of an Originating Summons before the Environment and Land Court, which has the jurisdiction to determine claims for acquisition of title by adverse possession. It is therefore not open to a trial court to convert an ordinary suit for specific performance into one for adverse possession and proceed to grant relief that was neither properly pleaded nor sought. 4. The learned trial magistrate therefore exceeded the scope of the pleadings and determined a cause of action that was not properly before the court. In doing so, the court not only departed from the issues presented by the parties for determination but also exercised jurisdiction it did not possess. It is a settled principle that jurisdiction is everything; without it, a court has no power to make one more step. Any proceedings or orders made without jurisdiction are nullity ab initio. 5. Consequently, this Court finds that the judgment delivered in **Ndhiwa Principal Magistrate's Court ELC No. E010 of 2021**, insofar as it declared the respondent entitled to Land Parcel No. **Kanyamwa/Kabonyo/Kwandiku/597** by virtue of adverse possession, was rendered without jurisdiction and cannot be allowed to stand. The Learned trial magistrate ought to have confined himself to determining the issues arising from the pleaded claims for specific performance and constructive trust, or, if adverse possession was the intended basis of the respondent's claim, to have declined jurisdiction and left the respondent to pursue the appropriate procedure before the court vested with the requisite jurisdiction **Final Disposition** 1. In the result, this appeal succeeds, and the Court makes the following orders: 2. The appeal is hereby allowed. 3. The judgment and decree of the **Principal Magistrate's Court at Ndhiwa in ELC No. E010 of 2021** are hereby set aside in their entirety. 4. It is hereby declared that the learned trial magistrate erred in law by determining the suit on the basis of adverse possession, a cause of action that was neither properly before the court nor within the jurisdiction exercised in the proceedings. 5. Each party shall bear his own costs. RULING DATED AND DELIVERED AT HOMA BAY VIA TEAMS’ PLATFORM THIS 21ST DAY OF JULY 2026. **In the Presence of;** 1. Adingo for the Respondent – Present 2. Kimberly for the Appellant – Present 3. Ms. Awino, Court Assistant. JUSTICE J.W WANYONYI-JUDGE