https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4534

**REPUBLIC** **IN THE ENVIRONMENT AND LAND COURT AT KISII** **ELCLA E010 OF 2025** KENNEDY MOKAYA ONDIEKI ……………………….. APPELLANT VERSUS RUTH MORAA NYABENGI …………………………… RESPONDENT **(Being an appeal from the judgment and Decree of the CM's Court Kisii delivered on 26th February 2025 in CMELC No. 125A of 2021)** **JUDGMENT** 1. The appellant, not being satisfied with the decision of the learned trial magistrate raised the following grounds in his appeal: 2. The Trial Magistrate erred in law and fact by failing to properly consider and weigh the evidence on record, particularly the fact that the Appellant is the registered owner of the parcel of land in dispute. The Appellant submitted unchallenged evidence to this effect, but the Trial Magistrate did not give due weight to this critical fact in the judgment. 3. The Trial Magistrate erred in law by granting the Respondent's counterclaim for adverse possession. The Appellant contends that the dispute concerning adverse possession should have been determined by the High Court, not the Chief Magistrate's Court. As adverse possession involves complex legal principles and could affect the title to land, it is a matter more appropriately heard and determined by the High Court rather than a Magistrate's Court. 4. The Trial Magistrate's Court failed to give due consideration to the registered ownership of the land by the Respondent as established in the evidence before the court. The Respondent's title to the land is protected by law, and no evidence was presented to challenge the validity of the registration. Consequently, the Magistrate erred in granting relief on the basis of adverse possession without considering the legal implications of the Respondent's registered title. 5. The Trial Magistrate's Court erred by granting the Respondent's counterclaim in full without addressing the fundamental issue of jurisdiction. The counterclaim or adverse possession raises a substantive legal issue that requires careful examination of the evidence, including the parties' occupation and ownership of the land. Given the complexity of the claim, it should not have been decided at the Magistrate's Court level. 6. The Appellant further contends that the award of costs in favor of the Respondent was unjust and should be reconsidered. In light of the failure to properly apply the law and the fact that the Appellant's claim had merit, the costs order should be set aside. 7. Consequently, the Appellant urges the court to grant him the following reliefs: 8. **The Appeal herein be allowed and the judgment and decree if the learned trial magistrate dated 26th February, 2025 be set aside, quashed and/or varied.** 9. **Dismiss the Respondent's counterclaim for adverse possession.** 10. **Reconsider the award of costs and make an appropriate order regarding costs.** 11. **The cost of this appeal and costs incurred in the subordinate court with respect to the main suit and counterclaim be borne by the Respondent.** 12. **Such further and/or other relief(s) as the court may deem just and expedient.** 13. The Appellant had in the subordinate court pleaded that at all material times he was the registered owner of land parcel number West Kitutu/Mwamonari/2775. He pleaded that he had applied for and obtained letters of administration of his late father's estate on behalf of his siblings. Thereafter, he used the grant to acquire the suit title measuring 2.0ha in his name. 14. It was the Appellant’s case that the Respondent was married to his deceased brother called Micah and that the Respondent had been staying on the said piece of land. However, now that the Appellant was the registered owner, he wanted to use the suit land. He asked the Respondent to move out, but she refused, necessitating the filing of the case for orders of eviction and/or vacant possession. 15. The Respondent opposed the claim by her statement of defence dated 23rd February, 2018, which was amended on 14th December, 2023 to introduce a counterclaim. She avers that she was unaware that the Appellant had obtained a grant of letters of administration, and that the same was obtained through fraud, deceit and/or illegality. She added that she had filed an application to have the grant issued in High Court succession cause no 24 of 2011 revoked. 16. The Respondent stated that she was surprised the Appellant wanted her evicted despite his admission that the Respondent was his brother’s wife. She asserted that the Appellant was not the rightful owner of the suit land and that the title deed he presented had been obtained through fraud, forgery, and deceit. She contended that the suit property is her land and home as she has no other home. The Respondent urged for the dismissal of the Appellant’s case with costs and judgment be entered in her favour in the counterclaim. 17. The trial proceeded before the various magistrates who handled the matter with the Appellant relying on his sole evidence while the Respondent called three (3) witnesses. To avoid repetition, I will refer to the evidence adduced under the paragraphs in my determination. 18. Directions were issued for prosecuting the appeal by way of written submissions. The Appellant filed submissions dated 5th February, 2026, while the Respondent’s are dated 30th April, 2026. 19. The Appellant submits that the appeal challenges the judgment of the Chief Magistrate's Court primarily on the ground that the trial court lacked jurisdiction to entertain and determine a claim founded on adverse possession. He argued that jurisdiction is the foundation of every judicial proceeding and that once it is absent, any proceedings conducted and the resulting judgment are a nullity. According to the Appellant, the trial court assumed jurisdiction where none existed, proceeded to hear the dispute, entered judgment, and awarded costs, thereby rendering the entire proceedings legally unsustainable. 20. The Appellant contends that claims for adverse possession are governed by section 38 of the Limitation of Actions Act, which reserves jurisdiction to the Environment and Land Court. It is submitted that although the magistrates' courts exercise limited jurisdiction in land matters under section 9(a) of the Magistrates' Courts Act, that jurisdiction does not extend to determining claims for adverse possession. The Appellant therefore maintains that the subordinate court acted outside its statutory mandate by adjudicating the dispute. 21. In support of this argument, reliance is placed on the case of **Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1**, where the Court of Appeal held that jurisdiction is everything and that a court must immediately down its tools once it finds it lacks jurisdiction. The Appellant also cites **Kisumu County Council v Nyakango & Another [2017] eKLR**, where the Court of Appeal stated that a claim for adverse possession is a special statutory jurisdiction that must be invoked in the manner prescribed by law. 22. Further reliance is placed on **Samuel Miki Waweru v Jane Njeri Richu [2007] eKLR**, in which the Court of Appeal held that adverse possession is not an ordinary land dispute but a claim for acquisition of title by operation of law that must be commenced through the proper statutory procedure before a court vested with jurisdiction. 23. The Appellant further relies on **Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] eKLR**, where the Court of Appeal held that claims for adverse possession fall within the jurisdiction of the Environment and Land Court and that subordinate courts lack authority to issue declaratory orders vesting title through adverse possession. Reference is also made to **Peter Thuo Kairu v Kuria Gacheru [2018] eKLR**, in which the Environment and Land Court held that jurisdiction is determined from the pleadings and that once a claim is founded on adverse possession, a magistrate's court lacks jurisdiction to determine it. 24. On the consequences of want of jurisdiction, the Appellant submits that any proceedings conducted without jurisdiction are void ab initio and incapable of conferring legal rights. In addition to **Republic v Karisa Chengo & 2 Others [2017] eKLR**, the Appellant relies on **Desai v Warsama [1967] EA 351**, where the appellate court held that it must intervene where proceedings are fundamentally defective, and **Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169**, in which Lord Denning stated that an act done without legal authority is a nullity and every proceeding founded upon it is equally void. The Appellant therefore urges the appellate court to set aside the entire judgment as having been rendered without jurisdiction. 25. Without prejudice to the jurisdictional objection, the Appellant argues that even if the trial court had jurisdiction, it erred in finding that the Respondent had established adverse possession. He averred that the evidence failed to prove open, exclusive, continuous, hostile and uninterrupted possession for the statutory period of twelve years. The Appellant contends that the trial court relied on speculation and inference rather than the strict evidentiary standard required to establish adverse possession, thereby reaching an erroneous conclusion. 26. Finally, the Appellant challenges the award of costs to the Respondent, submitting that costs cannot properly be awarded in proceedings conducted without jurisdiction. Reliance is placed on **Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR**, where the Supreme Court held that although costs are discretionary, the discretion must be exercised judicially and in accordance with the interests of justice. 27. The respondent submits that the appeal is misconceived because the appellant has raised a jurisdictional objection only in relation to the respondent's counterclaim for adverse possession. According to the respondent, the authorities relied upon by the appellant do not support the proposition that a subordinate court lacks jurisdiction to determine such a claim. 28. The respondent begins by distinguishing the case of **Samuel Miki Waweru v Jane Njeri Richu (2007) eKLR**. She argued that the appellant has misrepresented the decision by attributing to it findings that were never made. The respondent explains that the case arose from an appeal against a High Court decision, and the Court of Appeal was not called upon to determine whether subordinate courts have jurisdiction to hear claims founded on adverse possession. Instead, the ratio of the case was confined to the principles governing adverse possession, including that a claim cannot succeed where possession is enjoyed with the permission of the registered owner or pursuant to a sale agreement or lease. 29. The respondent further submits that the appellant has selectively quoted the decision, omitting the Court of Appeal's express statement that adverse possession claims may be asserted either by originating summons or by way of a defence and counterclaim in an existing suit. She cited **Wabala v Okumu (1997) LLR 609 (CAK), which was cited with approval in Samuel Miki Waweru v Jane Njeri Richu (2007) eKLR** to support the proposition that adverse possession may properly be pleaded in a defence and counterclaim. According to the respondent, this demonstrates that the appellant's interpretation of the authority is inaccurate. 30. The respondent also distinguishes **Bosire Ogero v Royal Media Services Ltd (2015) eKLR**, arguing that the case merely concerned an application for transfer of proceedings and did not determine the jurisdiction of magistrates' courts over claims for adverse possession. Similarly, the respondent submits that **Re Estate of Mwaura Mutungi alias Mwaura Gichimu (Deceased) (2019) eKLR** addressed the jurisdiction of succession courts and therefore is irrelevant to the present dispute. 31. In answer to the jurisdictional argument, the respondent relies on **Gulam Miriam Noordin v Julius Charo Karisa, Civil Appeal No. 26 of 2015 (2025) KECA 486 (KLR)**, where the Court of Appeal affirmed that, following the enactment of the **Magistrates' Courts Act, 2015**, magistrates designated to hear Environment and Land Court matters possess jurisdiction to determine claims for adverse possession, provided the value of the subject matter falls within the statutory pecuniary limits. 32. The respondent further cites **Chevron (K) Ltd v Harrison Charo Wa Shutu (2016) eKLR**, where the Court of Appeal held that adverse possession may be pleaded as a defence or counterclaim and is not restricted to commencement by originating summons. The respondent argues that the decision underscores the procedural flexibility available in adverse possession claims and supports the propriety of the counterclaim filed in the trial court. 33. Additionally, she relied on **Mombasa Bricks & Tiles Ltd & Others v Arvind Shah & Others (2019) eKLR**, in which the Court of Appeal reiterated that the Environment and Land Court and designated magistrates' courts exercise concurrent jurisdiction over land disputes within their respective pecuniary limits. According to the respondent, the authority confirms that jurisdiction is determined by statute and pecuniary value rather than by the nature of the relief sought. 34. On the basis of these authorities, the respondent maintains that the trial magistrate had both territorial and pecuniary jurisdiction to hear the respondent's counterclaim for adverse possession. The respondent urges the court to dismiss the appeal with costs, contending that the impugned judgment was rendered by a court properly vested with jurisdiction and in accordance with the applicable legal principles. **Analysis and Determination**: 1. This is a first appeal; hence, it is trite law for this court to re-evaluate the evidence adduced before the subordinate court in determining whether the learned trial magistrate came to a wrong conclusion or otherwise. In doing so, the court must be alive to the fact that it did not have the opportunity to evaluate the witnesses' demeanour. In the case of in **Abok James Odera t/a A. J. Odera & Associates v. John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR**, where this Court pronounced itself as follows: - ***“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority vs Kustron (Kenya) Limited 2000 2EA 212.”*** 1. I shall adopt the grounds listed in the memo of appeal as the points arising for determination of the appeal which are briefly summarised thus; 2. ***Whether registration constituted sufficient proof of the Appellant’s case.*** 3. ***Whether or not the subordinate court lacked jurisdiction to entertain a claim for adverse possession*** 4. ***What reliefs this court deems just to grant.*** 5. ***Who bears the costs of the appeal*** 6. The Appellant argues that the learned magistrate erred in disregarding the fact that he held a title in his name and proceeded to dismiss his suit and enter judgment for the Respondent. From the evidence adduced on record, it is not in dispute that the Appellant is the registered owner of the suit property. 7. In defending the root of his title, the Appellant pleaded and stated that he had acquired the land through transmission, which is a legitimate process. He referred to the certificate of confirmation of grant issued to him in High Court succession cause no. 24 of 2011, in the estate of Ondieki Onsongo, deceased. 8. The Respondent filed a defence and counterclaim challenging the ownership of the suitland by the Appellant. She had pleaded that she was staying on the suitland, a fact which the Appellant admitted in paragraphs 8 and 10 of the Plaint. At paragraph 8 of the plaint, the Appellant stated that the Respondent was married to his deceased brother called Micah. Further, in paragraph 5 he pleaded thus; **“The Plaintiff did receive a confirmation of the said grant of representation of the estate of the late Ondieki Onsongo deceased on behalf of his siblings”** (underline mine for emphasis). 1. The trial magistrate in considering this matter found that the Appellant did not present any evidence to show that he was the legal administrator of his deceased father’s estate. The learned magistrate stated that DW3 noted elements of fraud and forgery during the succession proceedings, and that there was also a criminal case. 2. It was a misdirection by the trial magistrate to hold that the Appellant failed to show evidence that he was the legal representative of his father’s estate, even though the Appellant had produced a copy of the certificate of the confirmed grant dated 17th December 2012. Secondly, what was referred to as criminal proceedings was only a letter from the DCI. 3. This court observes that, from the Appellant’s own pleadings, it is clear that his registration did not confer on him absolute ownership. He pleaded that he took out the letters of administration on behalf of his siblings. One of the siblings is Micah-deceased, whom he stated was the husband of the Respondent. He also affirmed that the Respondent had been in possession even before he took out letters of administration. On this basis, I do not find merit in grounds 1 and 3 of the appeal, which fault the trial magistrate for not relying on the title deed at face value to hold in favour of the Appellant. 4. The Appellant, in grounds 2 and 4 of the appeal, faults the trial magistrate for allowing the counterclaim brought under the heading of adverse possession when there was no evidence adduced to support it and, in the alternative, that the trial court did not have jurisdiction to hear the said claim. 5. In arguing the lack of jurisdiction, the Appellant cited inter alia the case of **Owners of Motor Vessel Lilian S versus Caltex Oil Kenya Ltd (1989) KLR 1** where the Court of Appeal held that Jurisdiction is everything and without it, there is no basis for continuation of proceedings pending other evidence. 6. Section 38 of the [Limitation of Actions Act](https://new.kenyalaw.org/akn/ke/act/1968/21) provides:“(1)Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, 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. This section has not been amended to read the Environment and Land Court despite the operationalisation of this court in the year 2012. 7. The question of jurisdiction was not raised by the Appellant before the trial court. In any event, previous decisions from the Environment and Land Court was mixed on the jurisdiction of the Magistrate’s court to hear and determine adverse possession claims. For instance, in the case of [**Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & another**](https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3911) **[2020] eKLR** DO Ohungo, J held: **“Based on the express provisions of section 26(3) and (4) of the** [**Environment and Land Court Act**](https://new.kenyalaw.org/akn/ke/act/2011/19)**, 2011 and section 9(a) of the** [**Magistrates’ Courts Act**](https://new.kenyalaw.org/akn/ke/act/2015/26)**, 2015, the principles of interpretation of the** [**Constitution**](https://new.kenyalaw.org/akn/ke/act/2010/constitution) **as well as the principles of the** [**Constitution**](https://new.kenyalaw.org/akn/ke/act/2010/constitution) **such as devolution, access to services and access to justice for all persons, to find as I hereby do, that so long as presided over by a magistrate who is duly gazetted under section 26(3) of the** [**Environment and Land Court Act**](https://new.kenyalaw.org/akn/ke/act/2011/19)**, 2011 and who has the requisite pecuniary jurisdiction, magistrates’ courts have jurisdiction and power to handle cases involving claims of adverse possession.”** 1. While, in the case of [**Njoki Wainaina v Josephat Thuo Githachuri & 3 others; National Land Commission & another (Interested Parties)**](https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1553) **[2021]** eKLR Mboya, J held that: **“the magistrate’s court, are not seized with jurisdiction to adjudicate upon claims founded on adverse possession on the face of the explicit provisions contained in sections 37 & 38 of the** [**Limitation of Actions Act**](https://new.kenyalaw.org/akn/ke/act/1968/21)**.”** 1. The question of jurisdiction was settled by the Court of Appeal in the judgment delivered in October, 2024 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 (Civil Appeal E141 of 2022) [2024] KECA 1417 (KLR) (11 October 2024) (Judgment)**. The court of Appeal having noted the conflicting decisions emanating from the ELC held that; **“It is our view that, if it was intended that claims for adverse possession be determined by the Magistrates’ Court, nothing would have been easier than for Parliament to have expressly enacted such a provision. So that in view of the express provisions of the law, a strict interpretation of section 38 would mean that hearing and determination of such matters is specifically limited to the Environment and Land Court to the exclusion of the Magistrates’ Court.”** 1. From the record, the taking of evidence took place between 17th January, 2024 and 27th November, 2024. The Appellant does not submit that he included the above-cited Court of Appeal decision in his submissions before the trial court. If he did not, and the trial court was unaware of the Court of Appeal's finding, he cannot be wholly faulted for making a determination on a claim for adverse possession. However, the claim was originated by the Appellant and adverse possession was not the only issue for determination. 2. Despite lack of knowledge of the Sugwara decision, the fact of want of jurisdiction remains a question of law that must be upheld. It is on this basis that I would set aside the decision entering judgment for the Respondent declaring that she was entitled to the land by virtue of adverse possession. 3. Does this mean that the Respondent has no recourse in law? It is trite law that parties are bound by their pleadings. However, the court can also determine an issue that arose during the trial, even if it was not pleaded, provided the parties dealt with it. In this instance, the question of constructive trust arose because the Appellant pleaded that he acquired title by transmission, the Respondent was on the land, and the Respondent formed part of the family of the deceased estate. 4. The Appellant had pleaded that the Respondent was married to his deceased brother called Micah. He reiterated this in his written statement dated 16th February 2018, the contents of which he adopted as his evidence in chief. Yet, in his oral evidence, the Appellant stated that he did not know the Respondent well and alleged that she was not Micah's wife. During cross-examination, the Appellant was now disowning his statement. 5. Without any amendment to the plaint and the witness statement on record, the denial of any relationship with the Respondent was an afterthought and proof of a dishonest witness. The fact of the Respondent’s marriage to Micah gave her a right to the suit land by way of customary trust. The Appellant confirmed that during the distribution of the estate (documentary evidence not produced), Micah was not given a share yet the Appellant proceeded to register himself on the portion occupied by the Respondent. 6. In the case of Isack Minanga Kiebia v. Isaaya Theuri M’lintari and aontgher (2018)eklr the Supreme Court held that; **It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in *Kiarie v. Kinuthia,* that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are:** **1. The land in question was before registration, family, clan or group land** **2. The claimant belongs to such family, clan, or group** **3. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous.** **4. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.** **5. The claim is directed against the registered proprietor who is a member of the family, clan or group.** 1. The defence mounted by the Respondent met the creteria set out above. This court does find that the Appellant is holding the title to the suit land in trust for the Respondent. He was therefore not entitled to the declaratory orders sought in his plaint. It is on this account that I find no merit in this appeal. 2. The appeal is dismissed with an order that each party bears their respective costs **Dated, Signed and Delivered at Kisii this 9th Day of July 2026** 1. **OMOLLO** **JUDGE**