Apola & another (Being Sued as Representatives of the Estate of Gertrude Apola) v Obade & 2 others (Environment and Land Appeal E005 of 2024) [2026] KEELC 408 (KLR)
The bottom line
#A Kisumu court cancelled a land claim won through adverse possession because the land belonged to a deceased person and no succession had been done.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondents acquired title by adverse possession after 12 years of continuous, peaceful and uninterrupted occupation
No adverse possession was established because the respondents' entry onto the land in 2005 was founded on a sale by a person who had no capacity to sell, the land being part of a deceased person's estate; the sale, purchase, entry and occupation were acts of intermeddling
The respondents claimed they bought the land in 2005 and occupied it openly since then. However, the death certificate showed the registered owner Gertrude Nyamunga Atieno died on 10/08/2002, so the land was estate property protected by the Law of Succession Act. Under section 45 no person may take possession of or dispose of free property of a deceased person. The sale and occupation were therefore acts of intermeddling and time could not run against the deceased's title. The trial court erred in finding adverse possession.
Whether the magistrate's court had jurisdiction to hear and determine a claim for adverse possession
The trial court had no jurisdiction; section 38 of the Limitation of Actions Act requires adverse possession claims to be made to the High Court, and the Court of Appeal in Sugawara v Kiruti confirmed that magistrate's courts lack such jurisdiction
Section 38 of the Limitation of Actions Act provides that applications for claims based on adverse possession shall be made to the High Court. The Court of Appeal in Sugawara v Kiruti [2024] KECA 1417 (KLR) settled the question, holding that in view of the express provisions of section 38, magistrate's courts do not have jurisdiction over adverse possession claims. The trial court therefore erred in entertaining the Originating Summons.
Whether the filing of suits by the appellants interrupted the running of time for adverse possession
The court did not reach this ground conclusively since the possession claim failed on the intermeddling point, though counsel for the appellants relied on authority that institution of a suit interrupts time
The appellants argued that the filing of Land Case No. 01 of 2016 interrupted time, relying on Benson Mukubwa Wachira v Assumption Sisters of Nairobi Registered Trustees. The court addressed this as part of the 12-year continuous possession ground but resolved the matter on the basis that the respondents' entry was itself invalid as intermeddling with a deceased's estate, making interruption arguments unnecessary.
Legal principles established
#- Magistrates' courts lack jurisdiction to determine claims of adverse possession, which must be brought before the High Court under section 38 of the Limitation of Actions Act
- Time for adverse possession cannot run against the title of a deceased person where entry and occupation constitute intermeddling with the estate
Court orders
#- 1.The appeal is allowed
- 2.The judgment of the trial court is set aside and substituted with a judgment dismissing the respondents' suit
- 3.Costs of the appeal to the appellants
- On appeal from
- Nyando Law Courts (Senior Principal Magistrate's Court)
- NYANDO SPM E&LC NO. E001 of 2022 (OS)
- Jurisdiction invoked
- First appeal to the Environment and Land Court under the Environment and Land Court Act; appeal from a magistrate's court decision on adverse possession
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Apola & another (Being Sued as Representatives of the Estate of Gertrude Apola) v Obade & 2 others (Environment and Land Appeal E005 of 2024) [2026] KEELC 408 (KLR)", Case Analysis (2026). ELC Appeal from NYANDO SPM E&LC NO. E001 of 2022 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/408/eng@2026-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.