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ELCPartially AllowedKandara Magistrate's Case No. MCL and E 4 of 2021 (appeal therefrom)· [2025] KEELC 7545 (KLR)

Ndung’u alias Francis Kabuti Ndung’u v Njuguna & another (Suing as the Registered Trustees of Christian Fellowship Church) Currently Grace Commission Global Church) (Environment and Land Appeal E046 of 2024) [2025] KEELC 7545 (KLR)

Environment and Land Court
4 November 2025
954 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed that magistrates' courts cannot decide adverse possession claims, so the Kandara judgment was set aside.

What this practically means

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Executive summary

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The Appellant appealed against the judgment of Hon. M. Mutunga (PM) delivered on 6-9-2022 in Kandara Magistrate's Case No. MCL and E 4 of 2021, in which the trial court found the Respondent entitled to 0.1 Ha of L.R. No. Loc.4/Ngararia/1934 by adverse possession. The Respondent claimed to have bought the 0.1 Ha in 2008 for Kshs. 50,000/=, paid the full price and built a church on it, occupying from 2006 to 2021; the Appellant maintained the Respondent was only a monthly tenant of temporary structures whose request to purchase was refused. The appeal raised ten grounds, but the court declined to consider them. Relying on the Court of Appeal decision in Sugawara vs Kiruti (11-10-2024), which held that by virtue of Section 38 of the Limitation of Actions Act only the High Court has jurisdiction over adverse possession claims, the court found the magistrate's court lacked jurisdiction. Applying Owners of Motor Vessel 'Lilian S', it held a court without jurisdiction cannot take a further step. The court set aside the judgment of 6-9-2022 together with all consequential orders, allowed the appeal on the jurisdictional ground alone, and deliberately made no findings on the ten grounds so that the Respondent could file the suit afresh in the Environment and Land Court, which has original jurisdiction, and receive a fair hearing. Because the Respondent should not pay costs for a suit the lower court should never have entertained, each party was ordered to bear its own costs in both courts. Judgment delivered virtually at Murang'a on 4th November 2025 by M.N. Gicheru J.

Key legal issues

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01

Jurisdiction of magistrates' courts over adverse possession claims

Holding

The lower court had no jurisdiction to entertain the adverse possession claim; the judgment was set aside on that ground alone

Reasoning

The Court of Appeal in Sugawara vs Kiruti settled the question, holding that Section 38 of the Limitation of Actions Act vests jurisdiction over adverse possession claims exclusively in the High Court. Before that decision the Environment and Land Court had been split. Applying Owners of Motor Vessel 'Lilian S', a court without jurisdiction cannot take a single further step, so the magistrate's judgment was a nullity and had to be set aside without considering the ten grounds of appeal.

p. 2
02

Whether the court should determine the ten grounds of appeal on the merits

Holding

The court declined to determine the grounds, preserving the Respondent's right to file the suit afresh in the Environment and Land Court

Reasoning

Because the Environment and Land Court has original jurisdiction in adverse possession cases, the Respondent may refile the claim, which would come before the same judge. To ensure a fair hearing in any fresh suit, the judge deliberately refrained from making findings on the ten grounds of appeal, which would otherwise prejudice the parties in the refiled case.

p. 3

Legal principles established

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  • Magistrates' courts do not have jurisdiction to determine claims of adverse possession; by virtue of Section 38 of the Limitation of Actions Act only the High Court does
  • A court without jurisdiction must down its tools and cannot take any further step in the proceedings

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment of the lower court dated 6-9-2022 and all consequential orders are set aside
  3. 3.Each party to bear its own costs in the lower court and in this court
On appeal from
Kandara Magistrate's Court
MCL and E 4 of 2021
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (vesting original jurisdiction over adverse possession claims in the High Court/Environment and Land Court on appeal)

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, "Ndung’u alias Francis Kabuti Ndung’u v Njuguna & another (Suing as the Registered Trustees of Christian Fellowship Church) Currently Grace Commission Global Church) (Environment and Land Appeal E046 of 2024) [2025] KEELC 7545 (KLR)", Case Analysis (2025). Kandara Magistrate's Case No. MCL and E 4 of 2021 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7545/eng@2025-11-04

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