Ombewa v Oloo (Land Case Appeal E010 of 2025) [2026] KEELC 2269 (KLR)

The plaint dated 25/09/2023 sought a permanent injunction and general damages for trespass over Title No. EAST Alego/Masumbi/543. Counsel argued magistrates' jurisdiction over land matters under section 26 of the ELC Act and section 7(1)(c) of the Magistrates Courts Act on pecuniary limits. The court agreed the suit as filed was properly before the trial court in all respects.

Relying on the Court of Appeal's decision in Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiruti, the court held that claims for adverse possession under sections 37 and 38 of the Limitation of Actions Act fall outside magistrates' courts' jurisdiction and only the ELC can determine them. The counterclaim sought declaration of ownership by adverse possession, so the trial court correctly downed its tools on it.

Although a counterclaim is a standalone suit, the trial court could not adjudicate the plaint alone because both claims were pegged on the same property. Any determination of adverse possession by the magistrates' court would have contravened the Court of Appeal's clarification. Upholding the ruling and transferring the plaint to the ELC preserved both parties' rights to be heard.

Following Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tours & Travel, the court held that nothing comes out of a nullity; an incompetent suit cannot be sanctified by transfer. Parties cannot confer jurisdiction by consent, and overriding objective or Article 159 cannot cure want of jurisdiction.