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ELCPartially AllowedUkwala Magistrates Court ELC No. 47 of 2018 (Appeal)· [2026] KEELC 480 (KLR)

Makokha v Khasede & another (Environment and Land Appeal E021 of 2024) [2026] KEELC 480 (KLR)

Environment and Land Court
4 February 2026
2,890 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that Magistrates Courts cannot decide adverse possession land claims, voiding a Ukwala court's judgment.

What this practically means

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Executive summary

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This was an appeal from the judgment and decree of the Senior Principal Magistrates Court at Ukwala (Hon. E. Tsimonjero) delivered on 24th June 2024 in Ukwala ELC No. 47 of 2018, in which the Respondents had successfully claimed the suit parcels Ugenya/Denga/524 and 552 by adverse possession. The Appellant's nine grounds attacked the trial court's treatment of adverse possession, the non-existence of parcel 524 (having been subdivided), non-joinder of new owners, family/permission issues, and alleged land grabbing. The appeal was canvassed by written submissions. The Appellant submitted, relying on the Court of Appeal decision in Sugawara v Nairuko Ene Mutarakwa Kiruti (Civil Appeal E141 of 2022, decided 11/10/2024), that the Magistrates Court had no jurisdiction over adverse possession claims. The Respondents contended the claim was proved and that the trial court was clothed with jurisdiction under sections 7 and 38 of the Limitation of Actions Act. The court settled the jurisdictional question first, holding it could be raised even for the first time on appeal. Adopting the Court of Appeal's holding that adverse possession claims are reserved to the Environment and Land Court under sections 37 and 38 of the Limitation of Actions Act, the court found the trial court lacked jurisdiction, rendering the entire proceedings a nullity. The judgment and proceedings of the trial court were set aside and the suit recalled to the ELC for hearing de novo under section 18 of the Civil Procedure Act. The court declined to determine the other grounds of appeal. Each party was ordered to bear its own costs on the appeal.

Key legal issues

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01

Jurisdiction of Magistrates Court over adverse possession claims

Holding

The Magistrates Court lacked jurisdiction to hear the adverse possession claim; the entire proceedings were a nullity

Reasoning

The Court of Appeal in Sugawara (Civil Appeal E141 of 2022, decided 11/10/2024) held that despite the expansion of ELC jurisdiction to Magistrates Courts, section 9(a) of the Magistrates Court Act does not include adverse possession claims. The trial court therefore acted without jurisdiction when it heard and determined the Originating Summons under sections 7 and 38 of the Limitation of Actions Act.

p. 5
02

Consequence of lack of jurisdiction on trial proceedings

Holding

The entire proceedings and judgment were a nullity and had to be set aside

Reasoning

Applying the principle that nothing comes from a nullity, the court set aside the judgment and proceedings and recalled the suit to the ELC, the forum in which it was properly filed, for hearing de novo, relying on the jurisdiction of the High Court to transfer suits under section 18 of the Civil Procedure Act.

p. 5

Legal principles established

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  • Magistrates Courts lack jurisdiction to adjudicate claims founded on adverse possession; only the Environment and Land Court has such jurisdiction
  • A judgment given without jurisdiction is a nullity and cannot be cured by time or acquiescence

Court orders

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  1. 1.The judgement of the trial court be set aside together with its proceedings
  2. 2.The suit is recalled back to the Environment and Land Court for hearing de novo
  3. 3.Each party bears its own costs on this appeal
On appeal from
Senior Principal Magistrates Court at Ukwala
Ukwala Magistrates Court ELC No. 47 of 2018
Jurisdiction invoked
Article 162 of the Constitution of Kenya 2010 and section 13 of the ELC Act; appeal under section 18 Civil Procedure Act considerations; Sections 37 & 38 Limitation of Actions 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, "Makokha v Khasede & another (Environment and Land Appeal E021 of 2024) [2026] KEELC 480 (KLR)", Case Analysis (2026). Ukwala Magistrates Court ELC No. 47 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/480/eng@2026-02-04

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