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ELCPartially AllowedNot stated in the judgment as provided· [2025] KEELC 8384 (KLR)

Oyeke v Catholic Diocese of Bungoma & another (Environment and Land Case 57 of 2018) [2025] KEELC 8384 (KLR)

Environment and Land Court
28 November 2025
2,866 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled a school must give back 0.30 hectares of a farmer's land within 90 days or buy it, confirming trespass claims never expire.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of land parcel South Teso/Angoromo/9563 measuring 0.646 hectares, sued the Catholic Diocese of Bungoma St. Benedette Ojamii Primary School and the School's Board of Management for trespass, alleging that from about 2005 they encroached on and fenced off part of his land, denying him access, and pleaded fraud. The 2nd Defendant denied trespass, asserting it occupies its own parcel South Teso/Angoromo/11465 which it says shares no boundary with the suit land, and raised two jurisdictional objections: lack of pecuniary jurisdiction and prematurity under the Land Registration Act 2012, plus a plea that the suit was time barred under Section 7 of the Limitation of Actions Act. The court dismissed the jurisdictional objections, holding that as a superior court it cannot lack pecuniary jurisdiction, that the parties' consented recourse to the Land Registrar and Surveyor under Section 18 forecloses the prematurity argument, and that trespass is a continuing tort which cannot be statute barred, applying M'mukanya v M'mbijiwe and Isaack Ben Mulwa v Jonathan Mutunga Mweke. On the merits, the court relied on a court-ordered survey by the County Surveyor showing that parcel 11465 measures 0.78 hectares on the ground against its registered 0.43 hectares, overlapping the plaintiff's parcel by 0.30 hectares, and on the Land Registrar's report confirming the overlap and existing boundary marks. The suit against the 1st Defendant was struck out as duplicative. The court declared the 2nd Defendant a trespasser over 0.30 hectares, ordered vacation within 90 days or, with consent of both parties, an offer to purchase that portion, failing which eviction would issue, with costs to the plaintiff.

Key legal issues

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01

Pecuniary jurisdiction and prematurity objections under the Land Registration Act 2012

Holding

Both objections dismissed; the Environment and Land Court is a superior court not bereft of pecuniary jurisdiction, and the parties' resort to the Land Registrar and Surveyor under Section 18 shows this is not a mere boundary dispute

Reasoning

Counsel for the defendant did not pursue the jurisdiction objection in submissions. The court noted it is a superior court, so a pecuniary jurisdiction deficit was unarguable. The parties consented to the Land Registrar and County Surveyor visiting and reporting on the parcels in accordance with Section 18 of the Land Registration Act, and the report did not disclose a boundary dispute.

p. 4
02

Limitation of actions in respect of trespass to land

Holding

The suit is not statute barred because trespass is a continuing tort giving rise to fresh causes of action daily

Reasoning

Section 7 of the Limitation of Actions Act bars recovery of land after 12 years, but trespass claims fall outside that bar because each continuance of the trespass is a fresh cause of action. The court relied on Clerk & Lindsell on Torts and the Court of Appeal decision in Isaack Ben Mulwa v Jonathan Mutunga Mweke.

p. 4
03

Whether the 2nd Defendant trespassed and encroached on the suit land

Holding

Yes - the 2nd Defendant's parcel 11465 overlaps the plaintiff's parcel 9563 by 0.30 Hectares, established by the court-ordered survey report and the Land Registrar's report

Reasoning

The County Surveyor testified that a court-ordered site survey showed parcel 11465 measured 0.78 hectares on the ground against a registered 0.43 hectares, overlapping into parcel 9563 by 0.30 hectares, leaving the plaintiff's parcel at 0.48 hectares against its registered 0.646 hectares. A 2015 letter from the school acknowledging consultation on the plaintiff's 'share of land' corroborated the encroachment.

p. 5

Legal principles established

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  • Trespass is a continuing tort and a claim in trespass cannot be statute barred
  • Continuous trespass creates fresh causes of action from day to day for as long as it continues

Court orders

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  1. 1.The suit against the 1st Defendant is struck out with no orders as to costs
  2. 2.Declaration that the 2nd Defendant has trespassed into land parcel NO South Teso/Angoromo/9563 by 0.30 Hectares
  3. 3.The 2nd Defendant shall within 90 days of judgment vacate the portion measuring 0.30 Hectares of land parcel NO South Teso/Angoromo/9563
  4. 4.Alternatively, subject to the consent of both parties, the 2nd Defendant may offer to purchase the 0.30 Hectares portion from the Plaintiff at an agreed consideration and commence the sale process within the same period
  5. 5.In default of vacating, the 2nd Defendant shall be evicted from the 0.30 Hectares portion
  6. 6.Costs to the Plaintiff to be borne by the 2nd Defendant

Authorities

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Legislation

  • Land Registration ActSection 18
  • Limitation of Actions ActSection 7
  • Trespass ActNot specified

Cases cited (2)

  • M'mukanya -v- M'mbijiwe
    1984 KLR
  • Isaack Ben Mulwa -v- Jonathan Mutunga Mweke
    2010 eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over claims relating to land (trespass to land); Environment and Land Court Act

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, "Oyeke v Catholic Diocese of Bungoma & another (Environment and Land Case 57 of 2018) [2025] KEELC 8384 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8384/eng@2025-11-28

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