Kariuki v Njomo (Environment and Land Case E015 of 2023) [2026] KEELC 2663 (KLR)
The bottom line
#A Kenyan court confirmed you can file an adverse possession claim in the Environment and Land Court even if a magistrate's court earlier dismissed it, because magistrates lack jurisdiction.
What this practically means
#Executive summary
#Key legal issues
#Whether the adverse possession claim is res judicata given the Embu CMCC judgment
No. The magistrate's court expressly declined jurisdiction over the adverse possession counterclaim, so the issue was never heard and finally decided; res judicata does not apply.
The court examined the judgment of Hon. Lucy Ambasi, CM, in Embu CMCC 210 of 2013, in which the magistrate held that an adverse possession claim can only be handled by a superior court under Section 38 of the Limitation of Actions Act. Because that court found itself lacking jurisdiction, the issue was not 'heard and finally decided' as Section 7 of the Civil Procedure Act requires. The court aligned itself with the Court of Appeal in Sugawara v Kiruti, which held that magistrates' courts lack jurisdiction over adverse possession claims. The ELC is therefore the only competent forum.
Whether res judicata is properly raised as a preliminary objection
Res judicata is a jurisdictional issue and a pure point of law that may be raised as a preliminary objection, but only where it rests on uncontested facts.
Relying on Mukisa Biscuit and Lillian S Caltex Oil, the court accepted that res judicata, being jurisdictional, can be raised as a preliminary point of law since a court without jurisdiction must down its tools. However, citing Gikonyo J in Khaemba v Standard Chartered Bank, the court noted that whether res judicata applies may require probing of evidence. Here the court was able to determine the matter on the pleaded facts and the annexed lower-court judgment without contested factual inquiry, because the lower court's own judgment showed it had declined jurisdiction.
Legal principles established
#- Magistrates' Courts do not have jurisdiction to determine claims of adverse possession; such claims lie only in the superior courts under Section 38 of the Limitation of Actions Act
- Res judicata cannot found where the former court lacked jurisdictional competence to hear and finally decide the issue
Court orders
#- 1.The Defendant's Notice of Preliminary Objection dated 12th February 2024 is dismissed
- 2.Costs of the preliminary objection to the Plaintiff
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act - the Environment and Land Court as the superior court clothed with jurisdiction to determine claims of adverse possession
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki v Njomo (Environment and Land Case E015 of 2023) [2026] KEELC 2663 (KLR)", Case Analysis (2026). Not stated in judgment (Originating Summons dated 28th December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2663/eng@2026-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.