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)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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
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