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ELCPartially AllowedAppeal from Marimanti PMC Environment & Land Case No E005 of 2023· [2025] KEELC 4069 (KLR)

Nyaga & another v Mugambi (Environment and Land Appeal E014 of 2024) [2025] KEELC 4069 (KLR)

Environment and Land Court
19 May 2025
BEB M Eboso
3,634 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenyan magistrates' courts cannot decide adverse possession claims—only the Environment and Land Court can—so a long-running land judgment was nullified.

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 Chuka against the judgment of the Principal Magistrate's Court at Marimanti (Hon Mbayaki Wafula, PM) delivered on 22/8/2024 in Marimanti PMC E&L Case No E005 of 2023, which allowed the respondent's claim of trespass, declared her owner of LR Tharaka/Chiakariga "A"/1317, and dismissed the appellants' defence and counterclaim founded on adverse possession (asserted occupations of 38 and 28 years). The appeal raised three issues: the magistrate's jurisdiction over the adverse possession defence and counterclaim, whether the appellants had acquired title by adverse possession, and whether they were trespassers. Relying principally on the Court of Appeal's decision in Sugawara v Kiruti, and applying Owners of Motor Vessel "Lillian S", the court held that under Sections 37 and 38 of the Limitation of Actions Act as construed against the Constitution of Kenya 2010, magistrates' courts lack jurisdiction over adverse possession claims, which vest in the Environment and Land Court under Article 162(2)(b). The court further held that once such a defence and counterclaim is raised, the magistrate should either facilitate a transfer under Section 18 of the Civil Procedure Act or strike out the defence and counterclaim and hear the plaintiff's claim as undefended, not decide the adverse possession question on the merits. The appeal was allowed: the trial proceedings and judgment were set aside, the defence and counterclaim were struck out, proceedings were stayed for 120 days to enable the appellants to procure a transfer to the ELC, failing which the magistrate's court is to hear the respondent's claim undefended, with each party bearing their own costs of the appeal. The court declined to rule on the adverse possession and trespass issues to avoid prejudicing the parties.

Key legal issues

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01

Jurisdiction of magistrates' courts over adverse possession claims

Holding

The trial court had no jurisdiction to adjudicate the defence and counterclaim of adverse possession; such claims lie in the Environment and Land Court

Reasoning

Sections 37 and 38 of the Limitation of Actions Act contemplated the High Court hearing adverse possession claims; post-2010 that jurisdiction vests in the Environment and Land Court under Article 162(2)(b). Section 9(a) of the Magistrates' Courts Act does not list adverse possession claims. Following Sugawara v Kiruti, the trial court could not entertain the counterclaim and ought to have downed its tools per Owners of Motor Vessel Lillian S.

p. 6
02

Consequence of raising an adverse possession defence before a court without jurisdiction over it

Holding

The trial court should have transferred the suit to the ELC under section 18 of the Civil Procedure Act, or struck out the defence and counterclaim and heard the plaintiff's claim as undefended

Reasoning

Because the respondent's trespass and injunction claim was initially properly before the magistrate's court, and the adverse possession defence/counterclaim was dominant but outside its jurisdiction, the correct course was transfer or striking out, not a merits determination. Having exceeded its jurisdiction, the trial proceedings and judgment must be set aside and the parties given a chance to relocate the dispute to a competent court.

p. 7
03

Merits of the adverse possession claim and the trespass allegation

Holding

The court declined to make findings on the second and third issues

Reasoning

Having found the trial court lacked jurisdiction over the dominant adverse possession issue, the court declined to rule on whether the appellants had acquired title or were trespassers, because such pronouncements could prejudice the parties when the issues are heard afresh before a competent court.

p. 7

Legal principles established

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  • Under the Limitation of Actions Act read with the Constitution of Kenya 2010, Magistrates' Courts lack jurisdiction to adjudicate adverse possession claims; such jurisdiction vests in the Environment and Land Court
  • Once a defence and counterclaim of adverse possession is raised before a magistrate's court, the court should either allow a transfer under section 18 of the Civil Procedure Act or strike out the defence and counterclaim and dispose of the plaintiff's claim as undefended
  • A first appellate court must re-evaluate the evidence afresh and reach its own conclusions

Court orders

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  1. 1.The trial proceedings and the Judgment in Marimanti PMC E&L Case No 5 of 2023 are set aside on the ground that the trial court did not have jurisdiction to adjudicate the question of adverse possession under the Limitation of Actions Act
  2. 2.The appellants' defence and counterclaim of adverse possession are struck out
  3. 3.Proceedings in Marimanti PMC E&L Case No 5 of 2023 are stayed for 120 days within which the appellants shall procure orders transferring the suit to the Environment and Land Court
  4. 4.In the absence of a transfer order, the Marimanti Principal Magistrate Court shall proceed to hear the respondent's claim as an undefended claim
  5. 5.Each party to bear their respective costs of the appeal

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 37, 38
  • Magistrates' Courts ActSection 9(a)
  • Civil Procedure ActSection 18
  • Constitution of Kenya 2010Article 162(2)(b)

Cases cited (6)

  • Gulam Miriam Noordin v Julius Charo Karisa
    Malindi Civil Appeal No.26 of 2015 (2015) eKLR
  • Rhoda S Kiilu v Jiangxi Watter and Hydropower Construction Kenya Limited
    (2019) eKLR
  • Susan Munyi Vs. Keshar Shiani
    [2013] eKLR
  • Abok James Odera t/a A.J Odera & Associates Vs. John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Sugawara v Kiruti & 3 others
    (Civil Appeal E141 of 2022)[2024] KECA1417 (KLR)
On appeal from
Principal Magistrate's Court at Marimanti
Marimanti PMC Environment & Land Case No E005 of 2023
Jurisdiction invoked
First appellate jurisdiction over a decision of the Principal Magistrate's Court (Environment and Land Court appeal from subordinate court)

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, "Nyaga & another v Mugambi (Environment and Land Appeal E014 of 2024) [2025] KEELC 4069 (KLR)", Case Analysis (2025). Appeal from Marimanti PMC Environment & Land Case No E005 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4069/eng@2025-05-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.