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ELCDismissedJudicial Review application arising from MCELC No. 69 of 2020 (Mombasa) - Notice of Motion dated 28th October 2025· [2026] KEELC 4346 (KLR)

Awadh & another v Mzee (Suing as Trustee of the Wakf of Mohamed Bin Mzee and Ahmed Mzee) (Environment and Land Miscellaneous Case E102 of 2025) [2026] KEELC 4346 (KLR)

Environment and Land Court
9 July 2026
897 words in judgment
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The bottom line

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The Environment and Land Court in Mombasa dismissed an attempt to move a land case to a higher court because the applicants had raised limitation only as a defence, not as a formal adverse possession claim.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Mombasa (Antony O. Ombwayo, J) determines a Notice of Motion dated 28th October 2025 by Mohamed Awadh Galole and Esha Mohamed Awadh, defendants in MCELC No. 69 of 2020 (Mombasa), a suit by Fauzia Mohamed Mzee seeking vacant possession and/or injunctions over Plot No 1585/VI/MN. Having failed in a preliminary objection on limitation decided on 15th August 2025, the Applicants sought either directions that the magistrate's suit be heard alongside their defence on limitation, or alternatively withdrawal of the suit to the ELC, invoking the supervisory jurisdiction under Articles 165(6) and (7) of the Constitution. The Respondent opposed, arguing that the primary suit contained no adverse possession claim, that the preliminary objection was properly determined, and that any adverse possession claim should be brought separately. The court affirmed the settled position, following Sugawara v Kiruti [2024] KECA 1417 (KLR), that subordinate courts lack jurisdiction to determine adverse possession claims under section 38 of the Limitation of Actions Act. However, it noted that the Applicants filed no counter-claim; limitation was raised only as a defence, and the trial court could simply decline to make orders if it found the defence merited but outside its jurisdiction. The application was accordingly dismissed with costs.

Key legal issues

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01

Whether the High Court should intervene in MCELC No. 69 of 2020 on account of a defence of limitation/adverse possession raised before the Magistrates' Court

Holding

The application lacks merit because the applicants raised limitation only as a defence, not a counter-claim for adverse possession, and the trial court can itself stop short of making orders if it finds it lacks jurisdiction.

Reasoning

The court accepted that magistrates' courts lack jurisdiction to determine adverse possession claims per Sugawara v Kiruti under section 38 of the Limitation of Actions Act. However, the applicants filed no counter-claim in the lower court; limitation was pleaded only as a defence. Where a limitation defence is raised, the trial court hearing the matter can simply decline to make orders without determining an adverse possession claim. Transfer or supervisory intervention was therefore unwarranted.

p. 3

Legal principles established

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  • Subordinate courts lack jurisdiction to entertain and determine claims for adverse possession, which are exclusively within the jurisdiction of the Environment and Land Court by virtue of section 38 of the Limitation of Actions Act.

Court orders

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  1. 1.The Notice of Motion application dated 28th October, 2025 is dismissed with costs
Jurisdiction invoked
Articles 165(6) and 165(7) of the Constitution (High Court supervisory jurisdiction) as invoked by the Applicants

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, "Awadh & another v Mzee (Suing as Trustee of the Wakf of Mohamed Bin Mzee and Ahmed Mzee) (Environment and Land Miscellaneous Case E102 of 2025) [2026] KEELC 4346 (KLR)", Case Analysis (2026). Judicial Review application arising from MCELC No. 69 of 2020 (Mombasa) - Notice of Motion dated 28th October 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4346/eng@2026-07-09

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