Ombui & another v Omaiko (Environment and Land Appeal E017 of 2024) [2026] KEELC 1161 (KLR)

Following the Court of Appeal in Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiruti & 3 Others, the court adopted a strict interpretation of Section 38 of the Limitation of Actions Act. Parliament would have expressly enacted such a provision had it intended Magistrates' Courts to determine adverse possession claims. Further, Section 7 of the Magistrates' Courts Act pegs jurisdiction on pecuniary value, which is unworkable where the value of land in an adverse possession claim may be unknown or far exceed the court's pecuniary limits.

The adverse possession claim was properly filed in the High Court in 2011 and transferred to the ELC in 2016. The subsequent transfer to Ogembo Magistrates' Court moved the case from a competent court to an incompetent one. Although the plaint suit (Ogembo MCELC No. E031 of 2021) was filed in a court with jurisdiction, once consolidated with the adverse possession claim it was 'tied to the hip' with it, and both ought to have been heard in the ELC.

Because the Magistrates' Court had no jurisdiction over the adverse possession claim, the judgment founded on that trial could not stand. The court declined to interrogate the merits of the decision, holding it apparent that the whole trial was a mistrial, and set aside the judgment, transferring both consolidated suits to the Environment and Land Court at Kisii for hearing and disposal afresh.