Ajemo & another v Ojala (Civil Appeal E029 of 2024) [2025] KEELC 5072 (KLR)
The bottom line
#Kenya's High Court ruled that magistrates' courts cannot decide adverse possession land claims—only the Environment and Land Court can—so the ownership judgment was cancelled.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Magistrates' Court over adverse possession claims
The trial magistrate's judgment was a nullity because the Magistrates' Court lacked jurisdiction to hear and determine claims under section 38 of the Limitation of Actions Act
The court reasoned that jurisdiction is a creature of statute and cannot be arrogated or assumed. Relying on the Supreme Court's decision in Okoiti v Portside Freight Terminals and the Court of Appeal's holding in Sugawara v Kiruti, the court found that section 38 of the Limitation of Actions Act specifically confers jurisdiction over adverse possession claims on the High Court/Environment and Land Court, not the Magistrates' Court. The trial court should have satisfied itself of jurisdiction before proceeding to determine the claim.
Scope of adverse possession - whole parcel versus portion occupied
The appellants did not dispute that adverse possession had been gained, only the extent; the land claimed must be definitely identifiable, and the respondent had pleaded and claimed the whole parcel
The court noted that the appellants did not contest that the respondent had acquired title by adverse possession, only whether the whole parcel as opposed to the portion occupied was correctly decreed. It observed that the respondent pleaded and claimed the entirety of the suit property and his evidence on uninterrupted occupation since 1987 was uncontroverted. However, this finding became academic once the jurisdictional defect was established.
Legal principles established
#- A court must independently satisfy itself that it has jurisdiction before determining a dispute; without jurisdiction it must down its tools
- Hearing and determination of claims under section 38 of the Limitation of Actions Act is limited to the Environment and Land Court, to the exclusion of the Magistrates' Court
- On a first appeal, the court is duty bound to evaluate the evidence before the trial afresh and come to its own independent findings
Court orders
#- 1.The appeal is allowed and the judgment of the trial court is set aside
- 2.The suit in the trial court is struck out for want of jurisdiction
- 3.No order as to costs; each party to bear own costs of the appeal
- On appeal from
- Magistrates' Court
- Primary suit over Land Parcel No. Kanyamwa/Kayambo-Kwamo/1064
- Jurisdiction invoked
- First appeal under Order 42 Rule 4 of the Civil Procedure Rules 2010; question of jurisdiction arising from section 38 of the Limitation of Actions Act, CAP 22
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ajemo & another v Ojala (Civil Appeal E029 of 2024) [2025] KEELC 5072 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 28th May 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5072/eng@2025-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.