https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3297

Ahono v Ayiemba (Environment and Land Appeal E015 of 2025) [2026] KEELC 3297 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEELC 3297 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Appeal E015 of 2025 E Asati, J May 28, 2026 Between Zedekiah Ouko Ahono Appellant and Elvis Ayiemba Respondent (Being an appeal from the ruling of the learned trial Magistrate G.N. Barasah (SRM) dated 20th February, 2025, in KISUMU CMC ELC NO. E111 OF 2023) Judgment Background 1.The record of appeal filed herein dated 30th July, 2025, shows that the Appellant was the Plaintiff and the Respondent, the Defendant in Kisumu CMC ELC NO. E111 OF 2023 (the suit). A copy of the plaint, which is on pages 3 to 4 of the record, shows that the Appellant had sued the Respondent in the suit over a parcel of land known as Kisumu/Kadongo/541 (the suit land). 2.The Appellant’s complaint in the suit was that the Respondent had trespassed onto the suit land and fenced it off with barbed wire and posts, planted fruits and trees, and constructed a tin/mabati house on the land. He sought orders of permanent injunction, eviction, general damages for trespass to property, and costs of the suit. 3.The record shows that in response to the claim, the Respondent filed a defence and counterclaim dated 30th June, 2024. The Respondent denied the Appellant’s claim. He averred that he had been in possession of the suit land since time immemorial, together with his father, and that he had been cultivating the land for a period of more than 12 years. He further averred that registration of the suit land in favour of the Appellant was procured by fraud. 4.He therefore counterclaimed for a declaration that he was a entitled to the suit land by adverse possession, a declaration that the Appellant’s proprietary rights over the suit land had become extinguished and that the Appellant was now holding the title in trust for the Respondent, a declaration for revocation and cancellation of title held by the Appellant and transfer of the suit land in favour of the Respondent, an order of permanent injunction and costs of the suit. 5.The record shows that in the pendency of the suit, the Respondent filed a Notice of Motion application dated 4th July, 2024, which was, by leave of court, amended and replaced with the Amended Notice of Motion application dated 18th September, 2024, seeking orders that;a.the matter be certified as urgent and heard ex parte in the 1st instance.b.pending the hearing and determination of this Application inter partes, this Honorable Court be pleased to issue a temporary injunction restraining the Respondent, whether by himself, his employees, servants, agents or otherwise, from disposing, carrying on any development, constructing, disturbing the Defendant/Applicant’s quiet possession or dealing with all that parcel of land known as Kisumu/Kadongo/5412A. pending the hearing and determination of this Application interpartes, this Honorable Court, be pleased to issue a temporary injunction restraining the Respondent whether by himself, his employees, servants, agents or otherwise howsoever from disposing, carrying on any development, constructing, disturbing the Defendant/Applicants quiet possession or dealing with all that parcel of land known as Kisumu/Kadongo/541 or any portion thereof in any manner prejudicial to the interest of the Defendant/Applicant.c.pending the hearing and determination of this suit, this Honorable Court be pleased to issue a temporary injunction restraining the Respondent, whether by himself, his employees, servants, agents, or otherwise, from disposing, carrying on any development, constructing, disturbing the Defendant/Applicant’s quiet possession, or dealing with all that parcel of land known as Kisumu/Kadongo/5413A. pending the hearing and determination of this suit, this Honorable Court be pleased to issue a temporary injunction restraining the Respondent whether by himself, his employees, servants, agents or otherwise howsoever from disposing, carrying on any development, constructing, disturbing the Defendant/Applicants quiet possession or dealing with all that parcel of land known as Kisumu/Kadongo/541 or any portion thereof in any manner prejudicial to the interest of the Defendant/Applicant.d.the Officer Commanding Station, Holo Police Station, do assist in compliance of these orders and further to restrain and/or prevent any other person from wrongfully entering and/or continuing to wrongfully enter and/or evicting and/or demolishing and/or harassing and/or interfering in any manner with the Defendant/Applicant’s possession of all that parcel of land known as Land Reference No Kisumu/Kadongo/541.e.the costs of this Application be provided for. 6.The record shows that in response to the application, the Appellant filed a Replying Affidavit and Further Affidavit sworn by the Appellant on 19th October, 2024. 7.The record of appeal further shows that the application was heard before the trial court, which, vide its ruling delivered on 20th February, 2025, made a finding that the trial court did not have jurisdiction to hear claims based on adverse possession, proceeded to make orders that:-“(i)The whole claim and counterclaim are struck out for want of jurisdiction.(ii)Parties are at liberty to file the same before the Environment and Land Court for determination.(iii)Each party to bear their own costs of the suit as the court has made the orders on its own motion.” The Appeal 8.Aggrieved by the ruling dated 20/2/2025, the appellant preferred the present appeal vide the Memorandum of Appeal dated 24th February, 2025, on the grounds that the learned magistrate;1.erred in law and fact claim of the Plaintiff on the ground of want of jurisdiction without properly considering that the Plaintiff’s claim was based on trespass and not adverse possession.2.erred in law and fact in failing to adequately distinguish between the Plaintiff’s claim of trespass and the Defendant’s counterclaim of adverse possession, which requires separate legal jurisdiction.3.the learned Magistrate’s ruling is not in accord with the provisions of Order 21 of the Civil Procedure Rules4.erred in law and fact by addressing issues that were never raised for determination, considering extraneous factors. 9.The Appellant seeks orders that;i.the appeal be allowed, and the ruling delivered by Hon. G.N Barasah on the 20th February, 2025, in Kisumu MCELC NO. E111 OF 2023 be set aside.ii.The Plaintiff's claim be reinstated to hearing and determination on its merits by a court of competent jurisdiction.iii.Costs of the appeal be awarded to the Appellant. Submissions 10.Pursuant to directions given on 30th September, 2025, the appeal was heard by way of written submissions. 11.Written submissions dated 1st December, 2025, were filed by the firm of Omondi, Abande & Company Advocates on behalf of the Appellant. Counsel framed 3 issues for determination in the appeal. On the first issue of whether the learned trial Magistrate erred in law and fact by failing to adequately distinguish between the Plaintiff’s claim of trespass and the Defendant’s counterclaim for adverse possession, which require separate legal jurisdictions, Counsel submitted that the Plaintiff’s claim in the suit was based on trespass. That section 9 of the Magistrate’s Courts Act expressly vests jurisdiction in a Magistrate to hear and determine such private law land dispute, including trespass. That the Plaintiff’s claim in trespass was competently instituted before the trial court and fell within the jurisdictional competence of the learned Magistrate. 12.Relying on, among other authorities, the case of Absalom Mwangi Wamigwi -vs- Simon Mbiriri Wanjiku & Another [2012]eKLR, Counsel submitted that the proper thing that the trial court ought to have done was to decline to exercise jurisdiction over or to strike out the adverse possession claim. Counsel submitted further that the trial court erred in merging the Appellant’s trespass claim with the Respondent’s counterclaim of adverse possession, thereby confusing two separate causes of action. 13.The next issue framed by Counsel for the Appellant is whether the learned trial Magistrate’s ruling is not in accord with the provisions of Order 21 of the Civil Procedure Rules. Relying on the provisions of Order 21, Rules 4 and 5, Counsel submitted that the trial Magistrate did not frame the issues for determination, nor the legal reasoning she applied in the ruling. Counsel submitted that had the trial Magistrate analyzed the evidence on record as provided in Order 21 Rules 4 and 5 of the Civil Procedure Rules, she would have easily appreciated that the Plaintiff’s/Appellant’s case was not grounded in adverse possession but registration, that the Plaintiff moved the court to enforce his rights by seeking orders of eviction and injunction. Counsel urged the court to allow the appeal with costs. 14.No submissions were filed on behalf of the Respondent. Directions on the filing of written submissions were taken in the presence of Counsel of the Respondent. Analysis and Determination 15.This being a first appeal, this court has a duty to re-examine the evidence and come to its own conclusion. 16.From the material placed before the court as contained in the record of appeal and the submissions filed by the Appellant, I find that the issues that present themselves for determination are:-i.Whether or not the trial court erred in striking out both the Appellant’s claim and the Respondent's counterclaim.ii.Whether the appeal herein has merit.iii.What order to make on the costs of the appeal? 17.A reading of the plaint, which initiated the suit before the trial court, shows that the Appellant's claim was based on trespass. He pleaded in paragraphs 6 and 7 of the plaint that the Respondent had trespassed onto the suit land, fenced it off, and carried out some activities thereon, including planting fruits, trees, and constructing a structure thereon. The prayers sought, namely an order of permanent injunction, eviction, and general damages for trespass, are remedies for the tort of trespass. 18.As submitted on behalf of the Appellant, the trial court had jurisdiction to entertain the suit based on trespass as long as the value of the suit land was within the monetary and territorial jurisdiction of the court. The Respondent admitted the jurisdiction of the court in paragraph 12 of the defence and counterclaim. There was no contest before the trial court regarding the court’s jurisdiction to entertain the claim in the plaint. 19.I find that the trial court erred in striking out the Appellant’s claim. If the intention of the court was to strike out the claim based on adverse possession, then the orders of the court ought to have addressed the counterclaim only, thereby leaving the claim in the plaint intact to proceed to hearing and determination on merit. 20.A reading of the record shows that it is the counterclaim that introduced the issue of adverse possession into the suit. The Respondent pleaded adverse possession in paragraphs 15, 17, 18, 19, and 20 of the counterclaim. His prayers related to the acquisition of land by adverse possession. It is the law, as restated in the Sugawara case, relied on by the trial court, that in view of the provisions of Section 38 of the Limitation of Actions Act, the Magistrate’s Court has no jurisdiction to entertain adverse possession. 21.A counterclaim, as provided for in Order 7 Rule 3, is a cross-suit by the Defendant against a Plaintiff. It is meant to allow the court to pronounce a final judgment in the same suit on both the original and the cross-claim. It is a claim on its own, which can be detached from the original suit. Like the original claim in the plaint, a counterclaim is to be accompanied with a Verifying Affidavit, witness statements, a list of witnesses to be called at the trial, and copies of the documents to be relied upon (see Order 7, Rule 5 Civil Procedure Rules). So that if the original claim is dismissed or struck out, the counterclaim still proceeds to hearing as a complete suit on its own.The trial court, therefore, erred in treating both the appellant’s suit and the Respondent’s counterclaim as one claim and striking both of them out. 22.The second issue is whether the appeal has merit. By reason of the ruling, the original suit/claim brought by the Appellant was struck out summarily, yet the claim was properly before the court. The Appellant was denied the right to be heard. I find that the appeal has merit. 23.Regarding cost, none of the parties moved the court to make the erroneous ruling. The matter before the court was a prayer for an order of temporary injunction, which the trial court had jurisdiction to hear and determine. In the circumstances, I find it to be in the interest of justice not to burden any of the parties with an order for costs. 24.For the foregoing reasons, I allow the appeal with the result that;i.the ruling of the trial court dated 20/2/2025 is set aside, and the appellant’s suit is reinstated to proceed to hearing and determination on merits.ii.the counterclaim, which was outside the jurisdiction of the court, remains struck out, and the respondent may file it in the appropriate court.iii.Each party shall bear its own costs of the appeal.Orders accordingly. JUDGMENT DATED AND SIGNED AT KISUMU AND DELIVERED VIRTUALLY THIS 28TH DAY OF MAY, 2026.E. ASATI,JUDGE.In the presence of:Atika: Court Assistant.Raburu h/b for M. M. Omondi for the Appellant.Ohayo for the Respondent.