Otando & another v Hongo (Environment and Land Appeal E042 of 2024) [2026] KEELC 764 (KLR)
The bottom line
#A Kisumu landowner who waited too long to reclaim land he had abandoned lost it through adverse possession—but full ownership still requires a separate court application.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent acquired the suit property fraudulently and his title should be cancelled
- 2.Whether the Appellants were trespassers on the suit property or had a justifiable cause for occupation
- 3.Whether the Respondent's counterclaim for recovery of land was time-barred under Section 7 of the Limitation of Actions Act and his title extinguished under Section 17
- 4.Whether the lower court had jurisdiction to declare the 1st Appellant the registered owner by adverse possession / to enforce the alleged trust under Sections 7 and 17
Key legal issues
#Fraudulent acquisition of title
The Appellants failed to prove fraud; the Respondent's registration under the Registered Land Act in 1987 was lawful and his title was not impeachable.
The Respondent produced a transfer dated 5th November 1987 executed by the 2nd Appellant, bearing his signature and identity card, neither of which was challenged. LCB consent was affirmed by the Respondent, and the burden of proving absence of consent lay on the Appellants, which they failed to discharge. Fraud was not proved to the required standard, so the trial court could not declare the title null and void.
Limitation of actions - recovery of land
The Respondent's counterclaim for recovery of the portion occupied by the 1st Appellant was time-barred under Section 7, and his title to that portion was extinguished under Section 17 of the Limitation of Actions Act.
The cause of action accrued on 9th November 1987 upon registration; the Respondent cultivated for only 3 years, left for Mombasa, and only sought recovery in 2021. The 1st Appellant's continuous occupation since 1982 was unchallenged. Action should have been brought by 9th November 1999; thereafter the right to recover became time-barred and title extinguished, giving the 1st Appellant a beneficial interest constituting an overriding interest under Section 28(h) of the Land Registration Act.
Trespass and possession
The Appellants were not trespassers; the 1st Appellant had a justifiable cause for continued occupation based on his beneficial interest from long adverse occupation.
As the registered owner, the Respondent was entitled to possession, but the 1st Appellant's occupation was justified by the extinguishment of the Respondent's title over the occupied portion. The trust holding made the occupation lawful, so orders for vacant possession and injunction could not stand.
Jurisdiction of Magistrates' Courts over adverse possession claims
The Magistrates' Court has no jurisdiction to order registration of an adverse possessor as owner; under Section 38(1) of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, such applications lie in the Environment and Land Court.
Sections 7, 17 and 38 of the Limitation of Actions Act must be read together. Section 38 refers to the 'High Court', which per Sugawara v. Kiruti should be construed as the Environment and Land Court under Article 162(2)(b); Section 9(a) of the Magistrates' Courts Act does not include adverse possession claims. The trust claim was in substance an adverse possession claim and could not be enforced in the Magistrates' Court.
Legal principles established
#- Once the registered owner's right to recover land has become time-barred and title extinguished, the occupier acquires a beneficial interest, which is an overriding interest under Section 28(h) of the Land Registration Act, but legal title must be obtained through a Section 38(1) application.
- A Magistrates' Court may declare a claim time-barred under Section 7 or title extinguished under Section 17 of the Limitation of Actions Act, but has no jurisdiction to order registration of an adverse possessor as owner; such claims lie in the Environment and Land Court.
- A trust presented as an alternative claim to avoid a jurisdictional objection, but in substance arising from adverse possession, does not create an enforceable trust cause of action in the Magistrates' Court distinct from Section 38(1).
Court orders
#- 1.The judgment delivered by Hon. Maureen Shimenga SRM on 20th June 2024 and the decree extracted therefrom are set aside.
- 2.Judgment is entered for the Appellants against the Respondent for a declaration that the Respondent holds the portion of Title No. Kisumu/Ojola/688 occupied by the 1st Appellant in trust for the 1st Appellant.
- 3.Each Party shall bear its costs of the lower court suit, while the Appellants shall have the costs of the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Kisumu
- MCELC No. E102 of 2021
- Jurisdiction invoked
- First appeal from the Magistrates' Court to the Environment and Land Court
Relief refused
#Declaration that the Respondent's title was fraudulent, null and void, and cancellation thereof
The Appellants failed to prove fraud; a valid registered transfer of 5th November 1987 with LCB consent was produced and unchallenged.
Order that the suit property be transferred and registered in the name of the 1st Appellant
A Magistrates' Court has no jurisdiction to order registration of an adverse possessor as owner; such an application lies under Section 38(1) of the Limitation of Actions Act in the Environment and Land Court.
Costs
Each Party shall bear its costs of the lower court suit, while the Appellants shall have the costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
1. The judgment delivered by Hon. Maureen Shimenga SRM on 20th June 2024 and the decree extracted therefrom are set aside.
2. Judgment is entered for the Appellants against the Respondent for a declaration that the Respondent holds the portion of all that parcel of land known as Title No. Kisumu/Ojola/688, which is occupied by the 1 st Appellant in trust for the 1st Appellant.
3. Each Party shall bear its costs of the lower court suit, while the Appellants shall have the costs of the appeal.
a Magistrate Court has no jurisdiction under Sections 7 and 17 of the Limitation of Actions Act to order that a person who has occupied land for a period of 12 years be registered as the owner of the land
So long as the trust arises from the beneficial interest acquired through adverse possession, the court with jurisdiction to determine its existence and enforceability is the Environment and Land Court, not the Magistrates’ Court.
The 1 st Appellant’s beneficial interest in the suit property was an overriding interest to which the Respondent’s title was subject under Section 28(h) of the Land Registration Act 2012.
Issues in the judgment
#Signature block suggests two judges (S. Okong'o wrote and signed; E. Asati delivered and countersigned), yet the judgment is written in the first person singular by one judge and no coram lists both judges.
The memorandum of appeal lists five grounds of appeal, but the court states it will consider 'all four grounds of appeal together' without explaining the discrepancy.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otando & another v Hongo (Environment and Land Appeal E042 of 2024) [2026] KEELC 764 (KLR)", Case Analysis (2026). ELCA NO. E042 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/764/eng@2026-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.