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ELCPartially AllowedKilifi ELC Appeal (Memorandum of Appeal dated 19 January 2024, from Kilifi ELC Suit No. E100 of 2021)· [2025] KEELC 3963 (KLR)

Athman v Mchanga (Environment and Land Appeal E003 of 2024) [2025] KEELC 3963 (KLR)

Environment and Land Court of Kenya
15 May 2025
3,507 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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This was a first appeal to the Environment and Land Court at Malindi against a judgment of Hon. J. Kituku (Senior Principal Magistrate) delivered on 19 December 2023 in Kilifi ELC Suit No. E100 of 2021. The Respondent had successfully claimed title to land (L.R No. 18378/7, Mtwapa Creek, Kilifi) by adverse possession, contending occupation since 1971; the Appellant, who bought the property around 2005 from Josiah Muli Wambua and Robert Zakayo Muli, counterclaimed for a declaration of ownership, permanent injunction and trespass damages. The trial court found adverse possession proved, computing time from the 1996 lease to the Appellant's vendors, and allowed the Originating Summons while dismissing the counterclaim. E.K. Makori J allowed the appeal. First, on the merits, the court found the Respondent's evidence inconsistent as to when possession began (1971, 1992 or 1998) and, having weighed the evidence afresh including a site visit showing the property enclosed by a wall the Respondent admitted building in 2021, held the Respondent failed to discharge the burden of proving continuous, open, exclusive and non-permissive possession for the statutory period. Second, adopting the Court of Appeal and Supreme Court decisions in Sugawara v Kiruti, the court held that Magistrates' Courts lack jurisdiction to determine adverse possession claims, which under section 38 of the Limitation of Actions Act are reserved to the Environment and Land Court. The appeal was accordingly allowed as prayed, with costs to the Appellant.

Key legal issues

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01

Whether the Respondent proved adverse possession

Holding

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.

Reasoning

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.

p. 6
02

Whether the trial magistrate's court had jurisdiction over adverse possession claims

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The appeal is allowed as prayed
  2. 2.Costs of the appeal are awarded to the Appellant

Authorities

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Legislation

  • Limitation of Actions Actsection 38
  • Magistrates' Courts Actsections 7 and 9(a)

Cases cited (12)

  • Mtana Lewa v Kahindi Ngala Mwangandi
    [2015] eKLR
  • Mombasa Teachers Cooperative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others
    [2018] eKLR
  • Okeno v Republic
    [1972] EA 32
  • Pandya v. R.
    [1957] E.A. 336
  • Shantilal M. Ruwala v. R.
    [1957] E.A. 570
  • Peters v. Sunday Post
    [1958] E.A. 424
  • Richard Wefwafwa Songoi v. Ben Munyifwa Songoi
    [2020] eKLR
  • Mbira v Gachuhi
    [2002] IEALR 137
  • Wambugu v Njuguna
    [1983] KLR 173
  • Kim Pavey & 2 others v Loise Wambui Njoroge & another
    [2011] eKLR
  • Sugawara v Kiruti & 3 others
    (Civil Appeal E141 of 2022) [2024] KECA 1417 (KLR) (11 October 2024)
  • Sugawara v Kiruti & 3 others
    [2025] KESC 9 (KLR)
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.