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ELCPartially AllowedAppeal from Bondo PM ELC No. 060 of 2022

Odoje v Mikolo (Environment and Land Appeal E015 of 2024) [2025] KEELC 6645 (KLR)

Environment and Land Court
2 October 2025
2,490 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Siaya Environment and Land Court ruled that magistrates' courts cannot decide adverse possession land claims, voiding a Bondo court's judgment.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Siaya against the judgment of Hon. Paul Nandi in Bondo PM ELC No. 060 of 2022 delivered on 17 May 2024, in which the trial magistrate declared the respondent (plaintiff) entitled to a portion of the appellant's land on the basis of adverse possession. The appellant raised five grounds, principally that adverse possession was never pleaded, that the acreage of 0.6Ha had no evidential basis, that the claim was time barred, and that the 60% costs award was unjustified. The appeal proceeded by written submissions. Justice A.E. Dena framed the main issue as whether the appeal was merited. On pleading, the court found that paragraph 4 of the plaint had raised some ingredients of adverse possession, and applying Odd Jobs vs Mubia, held that a court may infer and decide an unpleaded issue left to it on the evidence. However, following the Court of Appeal's decision in Pauline Chemuge Sugawara, the court held that magistrates' courts lack jurisdiction under section 9(a) of the Magistrates' Court Act to determine adverse possession claims, only the Environment and Land Court having such jurisdiction. Jurisdiction may be raised at any stage, even on appeal. The court therefore allowed the appeal and set aside the trial judgment granting the respondent a portion of the suit land by adverse possession, declined a retrial, and ordered each party to bear its own costs both at the trial and on appeal, citing the retrospective application of Sugawara as a special circumstance.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal is merited
  2. 2.Whether the trial court was right to infer and grant adverse possession
  3. 3.What is the acreage in occupation by the Respondent
  4. 4.Whether the award of costs was justified
  5. 5.What reliefs ought to issue
  6. 6.Who bears the costs of this Appeal

Key legal issues

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01

Whether the trial court could infer adverse possession though not expressly pleaded

Holding

Some ingredients of adverse possession having been pleaded in paragraph 4 of the plaint, adverse possession could be inferred under the Odd Jobs principle; the failure was not one of pleading but of jurisdiction.

Reasoning

The plaint pleaded peaceful possession and occupation, satisfying some ingredients of adverse possession. Relying on Odd Jobs vs Mubia and its progeny, the court held an unpleaded issue may be decided where evidence and argument leave it to the court. Thus the plea that adverse possession was never pleaded failed, but the trial court's decision could not stand because magistrates lack jurisdiction over adverse possession claims.

p. 5
02

Whether the magistrates' court had jurisdiction to grant adverse possession

Holding

The trial court had no jurisdiction to enter judgment on the basis of adverse possession; only the Environment and Land Court may determine such claims, and the judgment was set aside on that basis alone.

Reasoning

Following Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiruti, section 9(a) of the Magistrates' Court Act does not include adverse possession claims. Jurisdiction may be raised at any stage, including on appeal. The court was bound by the Court of Appeal decision and set aside the judgment notwithstanding the confusion existing at the time of the trial court's decision.

p. 5
03

Costs of the suit and the appeal

Holding

The trial court's costs award was set aside and each party ordered to bear its own costs at both levels, because adverse possession was properly inferrable from the pleadings but the jurisdictional decision applied retrospectively.

Reasoning

Costs normally follow the event, but the court found special circumstances: the appellant succeeded purely on a point of jurisdiction settled retrospectively by Sugawara, while the respondent had pleaded facts sufficient to found an adverse possession claim. Fairness therefore dictated that each party shoulder its own expenses at both the trial and the appeal.

p. 6

Legal principles established

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  • It is only the Environment and Land Court which has jurisdiction to hear and determine claims for adverse possession; magistrates' courts lack such jurisdiction under section 9(a) of the Magistrates' Court Act.
  • A point on jurisdiction may be raised at any stage of proceedings, even on appeal where it was not raised at trial.
  • A court may base its decision on an unpleaded issue if it appears from the course followed at the trial that the issue was left to the court for decision.

Court orders

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  1. 1.The appeal is allowed on the basis that the trial court lacked jurisdiction to enter judgment on adverse possession
  2. 2.The judgment of the trial court granting the Respondent a portion of the suit property on the basis of adverse possession is set aside
  3. 3.The proposal for a retrial is declined
  4. 4.The award of costs of the suit at the trial court is set aside and replaced with an order that each party bears its own costs at the trial court and on appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Bondo Principal Magistrate's Court (ELC)
ELC No. 060 of 2022
Jurisdiction invoked
Section 78 of the Civil Procedure Act (first appellate jurisdiction)

Relief refused

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Retrial of the primary suit

Issues of how the grant was obtained lie with the court that handled the succession

p. 6

Costs of the appeal against the Respondent

Given the retrospective application of the jurisdictional decision in Sugawara, each party was ordered to bear its own costs

p. 6

Costs

Each party to bear its own costs both at the trial court level and on this appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I will also be guided by the case of Selle Vs. Associated Motor Boat Co. (EA.123) where the court stated thus; '……Briefiy put this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.'
p. 4Duty of a first appellate court
My hands are therefore tied by the decision of the Court of Appeal and I must set aside the judgement granting the Respondents a portion of the suit property on the basis of adverse possession. The trial court lacked jurisdiction.
p. 6Setting aside the trial judgment for want of jurisdiction
I would set aside the award and replace it with orders that each party should bear its own costs both at the trial court level and this appeal.
p. 6Final orders on costs

Issues in the judgment

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minor

The trial court's judgment, as reproduced, gives inconsistent measurements of the portion awarded (0.60Ha and 0.060Ha) in successive sentences.

minor

The pleadings indicate the appellant's witness statement referred to 0.06Ha which was changed to 0.6Ha, and no survey report was produced; the exact acreage was never conclusively determined.

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, "Odoje v Mikolo (Environment and Land Appeal E015 of 2024) [2025] KEELC 6645 (KLR)", Case Analysis (2025). Appeal from Bondo PM ELC No. 060 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6645/eng@2025-10-02

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