Athman v Mchanga (Environment and Land Appeal E003 of 2024) [2025] KEELC 3963 (KLR)
The bottom line
#Kenya's Environment and Land Court threw out an adverse possession claim because the claimant's story kept changing, and confirmed magistrates' courts cannot hear such cases.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent proved adverse possession
The Respondent did not prove adverse possession; his evidence on the commencement and nature of possession was inconsistent (1971 in pleadings, 1992 in witness statement, 1998 in testimony), and the court preferred the Appellant's evidence.
The Respondent gave conflicting accounts of when he entered and occupied the suit property. The court found it inclined to believe the Appellant, who bought the property in 2005 and found it vacant. The court inspected the scene and confirmed the property was enclosed by a perimeter wall the Respondent admitted erecting in 2021. Because title was registered in the Appellant's name and the Respondent failed to discharge the burden on a balance of probabilities, it would be unjust to nullify the Appellant's title.
Whether the trial magistrate's court had jurisdiction over adverse possession claims
Magistrates' Courts lack jurisdiction to hear and determine adverse possession claims; such claims are reserved for the Environment and Land Court under section 38 of the Limitation of Actions Act.
Relying on Sugawara v Kiruti (Court of Appeal) and the Supreme Court's decision therein, the court held that Parliament did not expressly confer adverse possession jurisdiction on Magistrates' Courts under section 9(a) of the Magistrates' Courts Act, and pecuniary jurisdiction cannot accommodate claims where land value may be unknown. The trial court therefore lacked jurisdiction to determine the originating summons.
Legal principles established
#- A first appellate court must re-evaluate and re-analyse the evidence afresh and draw its own conclusions, making allowance for the trial court's advantage of hearing and seeing the witnesses.
- A claimant seeking title by adverse possession must prove non-permissive, actual, open, notorious, exclusive and adverse use for the statutory period without interruption, with peaceful and uninterrupted user and animus possidendi.
- The burden of proving adverse possession lies on the plaintiff/claimant on a balance of probabilities.
- Magistrates' Courts do not have jurisdiction to determine claims of adverse possession, which is limited to the Environment and Land Court under section 38 of the Limitation of Actions Act.
Court orders
#- 1.The appeal is allowed as prayed
- 2.Costs of the appeal are awarded to the Appellant
- On appeal from
- Senior Principal Magistrate's Court, Kilifi (Hon. J. Kituku, Senior Principal Magistrate)
- Kilifi ELC Suit No. E100 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's decision; the court discusses section 38 of the Limitation of Actions Act and the Magistrates' Courts Act on jurisdiction over adverse possession claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Athman v Mchanga (Environment and Land Appeal E003 of 2024) [2025] KEELC 3963 (KLR)", Case Analysis (2025). Kilifi ELC Appeal (Memorandum of Appeal dated 19 January 2024, from Kilifi ELC Suit No. E100 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3963/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.