County Government of Migori & another v Ogada & another (Environment and Land Appeal E045 of 2021) [2025] KEELC 7382 (KLR)
The bottom line
#Kenya's Environment and Land Court scrapped a Kshs. 9.2 million trespass award, ruling landowners cannot sue for trespass that happened before they bought the land.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal is merited
- 2.Who should bear the costs of the appeal
Key legal issues
#Whether the trespass claim was time barred
The tort of trespass fell under Section 4(2) of the Limitations of Actions Act requiring suit within three years; suit filed in 2019 over a 2012 trespass was statute barred
The alleged trespass occurred in 2012 while the land was registered in the name of the deceased, who never complained. The 1st Respondent acquired title in June 2014 and filed suit in 2019, five years after the trespass. Section 4(2) bars actions founded on tort after three years, so the claim for damages for trespass could not issue notwithstanding that a claim for recovery of land would enjoy twelve years.
Whether the 1st Respondent had locus standi to claim compensation for a trespass committed before he acquired title
He did not; the deceased owner acquiesced to the construction, and the subsequent owner took the land with notice of the 'encumbrance'
The 1st Respondent became proprietor only in 2014, two years after the hospital was built. The deceased permitted the construction and never objected. A subsequent owner must carry out due diligence and takes the property with its visible 'problem'; ownership is prospective only. The claimant also admitted using the facility, undercutting any compensation claim.
Whether the award of Kshs. 9,200,000 was justified
The trial magistrate misdirected himself in awarding compensation since the suit was statute barred and the claim was not proved
Having found the claim statute barred and the respondent lacking locus standi, the court held the trial magistrate erred in grounding the award solely on the valuation report and in awarding compensation on a claim that could not stand. The entire judgment was therefore set aside and the claim dismissed.
Legal principles established
#- Only the owner of land at the time of a trespass has locus standi to complain of it; ownership cannot act retrospectively to found a claim for a trespass committed before acquisition
- A claim in tort for trespass must be brought within three years under Section 4(2) of the Limitations of Actions Act; a suit filed outside that period is statute barred
Court orders
#- 1.Setting aside the learned trial magistrate's judgment delivered on 9th November, 2021
- 2.Substituting it with an order dismissing the 1st Respondent's claim in the trial Court
- 3.No orders as to costs both in the lower court and this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court, Migori
- Migori ELC No. 69 of 2019
- Jurisdiction invoked
- First appeal from the Senior Principal Magistrate's court under the court's appellate jurisdiction
Relief refused
#Appellants' prayer for striking out of the 1st Respondent's claim (as distinct from dismissal)
The court dismissed the claim rather than striking it out
Costs
No orders as to costs both in the lower court and this appeal (each party to bear their own costs)
Quotable passages
#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 proceed to set aside the learned trial magistrate's judgment delivered on 9th November, 2021. I substitute it with an order dismissing the 1st Respondent's claim, in the trial Court, with no orders as to costs both in the lower court and this appeal.
The ownership of the suit land could not act retrospectively as to found a complaint about the alleged trespass.
I find that the same was beyond the statutory limit of 3 years and therefore statute barred.
By their conduct, the deceased, gave the permission of the appellants to put up the hospital on the suit land.
Issues in the judgment
#The judgment gives conflicting dates for the trial court's judgment: it was 'delivered on 9th November, 2021' in paragraph 1 and the final orders, yet paragraph 6 refers to 'his judgment dated 19th April, 2023'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Government of Migori & another v Ogada & another (Environment and Land Appeal E045 of 2021) [2025] KEELC 7382 (KLR)", Case Analysis (2025). Migori ELC Appeal (Memorandum of Appeal dated 7th December, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7382/eng@2025-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.