https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3188

Kigoi v Kabiru (Environment and Land Appeal E011 of 2023) [2026] KEELC 3188 (KLR) (19 May 2026) (Judgment) Neutral citation: [2026] KEELC 3188 (KLR) Republic of Kenya In the Environment and Land Court at Muranga Environment and Land Appeal E011 of 2023 MN Gicheru, J May 19, 2026 Between Thomas Irungu Kigoi Appellant and Julius Maina Kabiru Respondent (Being an Appeal from the whole Judgment delivered by Honourable S. MWANGI the Senior Resident Magistrate on the 16th August 2023) Judgment 1.In the memorandum of appeal dated 11/9/2023, two Appellant seeks the following reliefs.a.The appeal be allowed.b.The judgment of the Honourable Senior Resident Magistrate be set aside and this Court be pleased to substitute it with a judgment in favour of the Appellant against the Respondent dismissing the entire civil case with costs.c)The costs of the appeal be granted to the Appellant. 2.The Appellant has set out eleven (11) grounds of appeal.The learned Senior Resident Magistrate erred in law-i.and in fact in failing to take into consideration the Appellant's written submissions on record which she relied on in making her judgment;ii.and in fact in admitting jurisdiction of this case without carrying out a valuation of land whose value is more than Kshs. 20 million. This (that) court had no jurisdiction to entertain this suits;iii.and in fact in finding that this case was one of adverse possession yet the trial suit was one for orders of eviction.iv.and in fact in failing to recognize and acknowledge that there were previous suits pertaining this land in different courts between himself and the father to the Defendant;v.in finding that the claim for adverse possession has been proved as the defendant and his family have not lived on the suit land quietly and the Plaintiff himself and his father before him have been pursuing their right over the land in previous years;vi.and in law in admitting that the defendant in the suit land had locus standi to defend this suit as he was never involved in the previous cases there were between the Appellant and the Respondent's deceased father. The Respondent would not be privy to the information adduced by the Appellant as evidence including the notices of eviction that had been issued;vii.and in fact in finding that the Respondent had always been in continuous occupation and/or exclusive possession of the suit land, a fact that he did not prove;viii.and in fact by completely ignoring the evidence of the Respondent in his examination in which he indeed acknowledged having been served with eviction notices by the Appellant. Further he acknowledged that the father was a guarantor to a loan taken from KCB Bank. This all goes to prove that indeed land was acquired through public auction from KCB which need not to be proved further;ix.and in fact for failing to consider the ruling attached declining the substitution of the Respondent in place of the deceased father;x.and in fact in determining that occupation by the Respondent defeated the good title held by the Appellant. Registration was proved by the Appellant, a fact which was not denied by the Respondent andxi.in fact in failing to admit evidence of existence of a charge that discharged in favour of the Appellant. 3.The facts of the case according to the Appellant are as follow:Firstly, he is the registered owner of L.R. Loc.20/Gikindu/Mirira/746. He acquired the suit land through purchase at a public auction. The land was sold by the Kenya Commercial Bank after the registered owner, Kibiru Ng'ang'a failed to service a loan he had obtained by charging the suit land. The Plaintiff became the registered owner on 25/10/1996 when he was issued with a title deed. Secondly, the Defendant filed an application in ELC Misc Application No. 6 of 2019 for substitution in the place of his father but his application was dismissed on 28/4/2022.Thirdly, the Respondent has been unlawfully encroaching upon the suit land and interfering with the Appellant’s quiet possession of his land without any lawful cause or excuse. The Respondent has no registrable interest in the suit land and in the suit in lower court, he sought for the Respondents eviction from the suit land. 4.The facts of the case according to the Respondent are as follows: One, his late father Kibiru Kang'ara was registered as the owner of the suit land in 1971. He was the first registered owner of the land. After acquiring the land he took possession and developed the suit land.Two, in the year 1996, the land was auctioned and the person who got registered as the owner did not bother to have the Respondent and his father evicted. Three, the Respondent has consequently acquired the suit land through adverse possession because he has lived on it for over 12 years without force, without permission and as of right. 5.In his reply to the defence and defence to counter claim, the Appellant disputed the competence of the lower court to entertain a claim for adverse possession. He also denied that the Respondent had been in uninterrupted possession of the suit land for twelve years. 6.In her judgment dated 16/8/2023 , the learned trial magistrate found that the Respondent had proved his claim of adverse possession. She ordered the cancellation of the Appellant's title to the suit land among other orders. 7.Counsel for the parties filed written submissions dated 3/3/2026 and 01/4/2026. The issues raised in the said submissions are as follows:a.Failure to consider Appellant’s written submissions.b.Lack of pecuniary jurisdiction of the trial court.c.Issue of adverse possession.d.Failure to recognize and acknowledge previous suits.e.Lack of locus standi.f.Failure to consider evidence by the Respondent.g.Wrongful substitution.h.Failure to consider indefeasible title. 8.I have carefully considered the appeal in its entirety including the records, the grounds, the written submissions, the issues as framed and the case law. I find that the issues as identified will resolve the dispute. 9.I find that the judgment dated 16/8/2023 addressed the Appellant’s submissions especially on the critical question of jurisdiction. The trial magistrate at pages 8,9 and 10 of the judgment justified the position that magistrates’ courts have jurisdiction in adverse possession cases. 10.Regarding the pecuniary jurisdiction of the trial Court, I have perused the record and in the reply to defence and defence to counter claim, there is no mention of the pecuniary jurisdiction of the court. No mention is made of the value of the land. This was the appropriate place to mention the lack of jurisdiction of the trial court . In fact at paragraph 13 of the reply to defence to the counter claim the Appellant states-“The jurisdiction of this honourable court to dismiss the counter claim is admitted.”The Appellant cannot therefore be heard to say on appeal that the trial court had no pecuniary to deal with the case. He should have said it at the right time and place. 11.As for failure to recognise and acknowledge previous suits, I think both parties are guilty of this failure. The plaint at paragraph 11 mentions that there was only one previous case between the parties which was ELC Miscellaneous application No. 6 of 2019 at Murang'a. During the hearing on 6/6/2023, it turned out that there was a case filed in Nyeri in the year 2014 over the suit land. The Appellant ought to have mentioned this Nyeri case in his pleadings. It is a mandatory requirement of the law of pleadings. The Respondent is not any less guilty because in his counterclaim, he ought to have made an averment of any previous suits but he did not do so. That too, is a serious omission on his part and it undermines a fair determination of the dispute because all the facts are not pleaded by the parties. 12.I will not speculate on locus standi because all the relevant facts in this dispute have not been pleaded but a party in possession of land and who claims an interest in that land cannot, in my view, be said to be without locus standi. This findings covers the other issues of failure to consider the evidence by the Appellant, wrongful substitution and failure to consider indefeasible title. 13.I finally come to the issue which is the elephant in the room, so to speak. This is the issue of jurisdiction of the lower court to deal with cases of adverse possession. As stated earlier, the learned trial magistrate defended her jurisdiction to handle the counterclaim which concerned adverse possession. At pages 8-10 of the judgment, she found that she had jurisdiction to entertain such a claim. It is now trite law that the learned trial magistrate was wrong. In the case of Pauline Chemuge Sugawara vs Nairuko Eve Mutarakwa Kiruti and 3 others Civil Appeal No. E141 of 2022 the Court of Appeal held that magistrates Court do not have jurisdiction to deal with cases of adverse possessions. The key provision of law that ousts the jurisdiction of lower court in cases of adverse possession is Section 38 (1) of the Limitation of Actions Act. It provides as follows.38(1)“ When 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” 14.From the decision in the Sugawara case (Supra) and Section 38(1) of the Limitation Actions Act, it is obvious that the learned trial magistrate lacked jurisdiction to entertain the Respondent's claim which was based on adverse possession. Yet she cancelled the Appellants title deed for the suit land on the assumption that she had the requisite jurisdiction. 15.In conclusion and for the reasons already given, I find that the trial magistrate lacked jurisdiction to entertain the counter claim. I allow the Appellant's appeal and set aside the judgment dated 16-8-2023. The Appellant is therefore reinstated as the registered owner of the suit land. I also award the Appellant the costs of the suit in the lower Court and in this appeal.The claim for adverse possession may be filed afresh before a court of competent jurisdiction.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 19TH DAY OF MAY, 2026.M.N. GICHERU JUDGE.Delivered online in the presence of; -Court Assistant – Mutunga.Appellant's Counsel – Mr. T M Njoroge.Respondent's Counsel – Mr. Makura.