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ELCPartially AllowedELCA No. E003 of 2025

Korgorin v Kikwai & 2 others (Environment and Land Appeal E003 of 2025) [2026] KEELC 1385 (KLR)

Environment and Land Court
5 March 2026
6,593 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled magistrates cannot decide adverse possession claims, voiding a Bomet land judgment — but nobody won costs.

What this practically means

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Executive summary

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The Appellant, registered proprietor of Kericho/Kapsimbiri/464, sued the Respondents before the Magistrate's Court at Bomet for eviction, permanent injunction, mesne profits and damages. The Respondents denied his claim and counterclaimed for a declaration of adverse possession over 0.9 acres, asserting their late father bought the portion from the Appellant in 1979, paid the full price of Kshs 6,570/=, and occupied it openly by growing tea until an eviction demand in March 2023. On 28th January 2025 Hon. Boke CM dismissed the suit and allowed the counterclaim. On first appeal to the Environment and Land Court at Kericho, the Appellant argued the Respondents lacked locus standi and that adverse possession failed because their possession was permissive under a sale agreement. The Court held the Respondents properly defended and counterclaimed in their personal capacities and needed no letters of administration. On its own motion, the Court examined the trial court's jurisdiction and, guided by the Court of Appeal's decision in Sugawara v Kiruti, found that Magistrates' Courts have no jurisdiction over claims of adverse possession, such claims being reserved to the Environment and Land Court under Article 162(2)(b). Grounds not supported by submissions were deemed abandoned. The Court set aside the trial judgment but, having raised the jurisdictional issue suo motu, directed each party to bear its own costs of the appeal. The merits of the adverse possession claim remain undetermined and unremitted.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Learned Trial Magistrate erred in allowing the Counterclaim and yet the Respondents did not have the locus standi to file it
  2. 2.Whether the Learned Trial Magistrate erred in finding that the Respondents acquired a portion of land parcel No. Kericho/Kapsimbiri/464 by way of adverse possession
  3. 3.What is the fate of the other grounds of Appeal
  4. 4.Who should bear costs of the appeal

Key legal issues

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01

Locus standi of the Respondents to counterclaim

Holding

The Respondents defended and counterclaimed in their personal capacities, the same capacity in which they were sued, so no letters of administration were required and the trial court erred not in entertaining the counterclaim on this ground

Reasoning

The Appellant sued the Respondents as defendants and occupiers, not as legal representatives of their deceased father's estate. The defence of adverse possession and the declaratory orders flowed from their personal position as occupants. The abandoned preliminary objection had not raised locus standi in any event, having only complained of a pleaded violation of Order 2 Rules 1-5 of the Civil Procedure Rules. The ground of appeal therefore failed.

p. 29
02

Jurisdiction of the trial Magistrate's Court over adverse possession

Holding

The trial Magistrate lacked jurisdiction to determine the Respondents' claim of adverse possession, a claim reserved to the Environment and Land Court

Reasoning

Raising the question suo motu as permitted by the Supreme Court in Nasra Ibrahim Ibren, the Court relied on the Court of Appeal's decision in Sugawara v Kiruti, which construed the relevant provisions as vesting jurisdiction over adverse possession claims exclusively in the Environment and Land Court established under Article 162(2)(b). Section 9(a) of the Magistrates' Courts Act does not list adverse possession claims among matters assigned to Magistrates' Courts.

p. 41
03

Unsubmitted grounds of appeal

Holding

Grounds 1, 2, 5, 6, 7, 8 and 9 of the Memorandum of Appeal were deemed abandoned for want of submissions

Reasoning

Neither party had submitted on these grounds. Following authority that grounds not supported by submissions stand abandoned, the Court deemed them abandoned rather than determining them on the merits.

p. 45
04

Costs

Holding

Each party to bear its own costs of the appeal because the dispositive jurisdictional question was raised suo motu

Reasoning

Although costs follow the event under section 27 of the Civil Procedure Act, the Court, following Kimimgi v Onuko, declined to award costs since it raised and determined the jurisdictional issue on its own motion rather than at the instance of a party.

p. 45

Legal principles established

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  • Magistrates' Courts lack jurisdiction to hear and determine claims for adverse possession, which are reserved to the Environment and Land Court
  • A court may raise the issue of jurisdiction suo motu at any stage of the proceedings, even on appeal
  • A defendant sued in a personal capacity may mount a defence of adverse possession without letters of administration
  • Grounds of appeal not supported by submissions are deemed abandoned

Court orders

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  1. 1.The judgement delivered in Bomet CM ELC Case No. E010 of 2023 is hereby set aside
  2. 2.Each party shall bear own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Magistrate's Court at Bomet (ELC)
Bomet CM ELC Case No. E010 of 2023
Jurisdiction invoked
Appeal to the Environment and Land Court from a Magistrates' Court (ELC) decision

Relief refused

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Costs of the appeal to any party

The Court raised the jurisdictional question suo motu, so costs were not awarded to the successful Respondents

p. 45

Costs

Each party shall bear own costs of the appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The judgement delivered in Bomet CM ELC Case No. E010 of 2023 is hereby set aside.
p. 46disposition - setting aside of trial judgment
I find that the Learned Trial Magistrate lacked jurisdiction to hear and determine the question of adverse possession.
p. 46jurisdiction of Magistrates' Courts over adverse possession
it is only the Environment and Land Court established under Article 162(2)(b) that is mandated to hear these cases
p. 39exclusive jurisdiction of the ELC over adverse possession claims
Jurisdiction is such an important matter that it can be raised at any stage of the proceedings even on appeal.
p. 37jurisdiction may be raised at any stage
Each party shall bear own costs of the appeal.
p. 45costs order
it was not necessary for the Respondents to obtain letters of administration before mounting the defence of adverse possession as they did so in their personal capacities; the same capacity in which they were sued
p. 29locus standi - personal capacity defence

Issues in the judgment

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minor

The judgment is dated 5th March 2026, which post-dates the 2025 filing and hearing dates; possibly a typographical year error

minor

The Memorandum of Appeal repeatedly refers to the trial 'Ruling' of 28th January 2025 although the trial decision was a judgment

minor

The trial court record as reproduced shows the preliminary objection dated 17th July 2023 attacked the counterclaim's compliance with Order 2 Rules 1-5, while the Respondents' submissions describe it as raising locus standi; the Court noted this discrepancy

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, "Korgorin v Kikwai & 2 others (Environment and Land Appeal E003 of 2025) [2026] KEELC 1385 (KLR)", Case Analysis (2026). ELCA No. E003 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1385/eng@2026-03-05

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