Okal v Bengo (Environment and Land Appeal E024 of 2024) [2026] KEELC 5078 (KLR) (23 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT HOMA BAY** **ELC APPEAL NO. E024 OF 2024** **CHARLES ONYANGO OKAL** …..………………………..…….. **APPELLANT** **VERSUS** **ELSA AUMA BENGO**……………………………………………**RESPONDENT** *(Being an appeal against the whole judgment of Hon. C.A.S Mutai delivered on the 15th day of March 2024 in Homa Bay Chief Magistrate’s ELC NO. E005 OF 2023)* **JUDGEMENT** 1. This is a first appeal arising from the judgment of the Honourable C.A.S. Mutai (Senior Principal Magistrate) delivered on 15th March 2024 in which the learned trial magistrate dismissed the appellant's suit with costs. 2. Being dissatisfied with the entire judgment, the appellant lodged the present appeal vide a Memorandum of Appeal dated 3rd June 2024 containing fourteen (14) grounds of appeal. The gravamen of the appeal is that the learned trial magistrate misapprehended both the law and the evidence relating to the doctrine of adverse possession and consequently arrived at an erroneous decision. The appellant contends that the trial court failed to properly appreciate the legal principles governing adverse possession and the evidence tendered in support thereof. 3. The record shows that the appellant commenced proceedings before the subordinate court by way of an Originating Summons dated 27th March 2023 brought pursuant to Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act, Cap. 22, Laws of Kenya. In the said Originating Summons, the appellant sought a determination that, having been in open, peaceful, continuous and uninterrupted occupation of approximately two (2) acres comprised in Land Parcel No. **KAGAN/KANGA/KANYARWANDA/750** for a period exceeding thirty (30) years, with the full knowledge of the respondent, he had acquired title thereto by way of adverse possession and ought to be registered as the proprietor of the said portion. 4. In this appeal, the appellant prays that this Court be pleased to: 5. Allow the appeal; 6. Set aside the judgment delivered on 15th March 2024 and substitute it with an order directing the respondent to transfer to the appellant approximately two (2) acres out of Land Parcel No. **KAGAN/KANGA/KANYARWANDA/750**, the appellant having acquired the same by virtue of the doctrine of adverse possession; and 7. Award the appellant the costs of this appeal as well as the costs of the proceedings before the trial court. 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. 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; 4. 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. The bottom-line is that the Chief Magistrates’ court at Homa Bay where CMELC No. E005 of 2023 (O.S) was filed had no jurisdiction to entertain that suit. 3. When a court of law has no jurisdiction to act in the suit or matter its duty is to down its tools by striking out the action with costs to the defendant or respondent as the case may be. That this court should strike out the Originating Summons filed dated 27th March 2023 as being filed in a court with no jurisdiction to hear and determine it with costs to the respondent. 4. This court having already determined that the Chief Magistrates’ Court had no jurisdiction to entertain the suit before it. The only logical conclusion to be made is that the instant appeal fails. Therefore, the appeal is dismissed no order as to costs. JUDGMENT DATED AND DELIVERED VIA TEAMS PLATFORM AT HOMA BAY THIS 23RD DAY OF JULY 2026. **In the Presence of;** 1. Obwanda for the Appellant. 2. Migai for the Respondent. 3. Court Assistant, Ms. Awino. JUSTICE J.W WANYONYI-JUDGE 23/7/2026