Oyeke v Catholic Diocese of Bungoma & another (Environment and Land Case 57 of 2018) [2025] KEELC 8384 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Pecuniary jurisdiction and prematurity objections under the Land Registration Act 2012
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
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.
Limitation of actions in respect of trespass to land
The suit is not statute barred because trespass is a continuing tort giving rise to fresh causes of action daily
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.
Whether the 2nd Defendant trespassed and encroached on the suit land
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
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.
Legal principles established
#- 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
#- 1.The suit against the 1st Defendant is struck out with no orders as to costs
- 2.Declaration that the 2nd Defendant has trespassed into land parcel NO South Teso/Angoromo/9563 by 0.30 Hectares
- 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.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.In default of vacating, the 2nd Defendant shall be evicted from the 0.30 Hectares portion
- 6.Costs to the Plaintiff to be borne by the 2nd Defendant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.