Okeyo v Thanya's Plaza Ltd (Environment and Land Case E035 of 2025) [2026] KEELC 4816 (KLR)
The bottom line
#The Environment and Land Court refused to stop an adverse possession claim, confirming that a signed settlement agreement is not binding unless a court formally adopts it as an order.
What this practically means
#Executive summary
#Key legal issues
#Whether an unadopted consent can be enforced as a court order
No. The consent dated 7th May 2025 was never adopted by the Magistrates' Court, so no consent judgment or order came into existence; the authorities on consent judgments concern orders already entered by the court.
The court surveyed Flora N. Wasike v Destimo Wamboko, Brooke Bond Liebig v Mallya and KCB v Specialised Engineering, all of which concern consent judgments or orders already entered by the court. Since the parties' consent was never adopted, no consent judgment or consent order came into existence, and the prayer for its enforcement was incompetent.
Whether this Court can compel compliance with orders in separate proceedings before another court
No. The ELC was neither sitting on appeal nor exercising supervisory jurisdiction over the Magistrates' Court; under section 34 of the Civil Procedure Act questions relating to execution of a decree belong to the court executing it.
The Respondent sought enforcement of an order allegedly made in MCCC No. E5257 of 2023 pending before a different court. Citing section 34 of the Civil Procedure Act, the court held that questions of execution, discharge or satisfaction of a decree must be determined by the court executing the decree, and it would be procedurally improper for this Court to compel compliance in an independent suit.
Whether the suit is res judicata
No. An indispensable element of res judicata is that the former suit must have been heard and finally determined; MCCC No. E5257 of 2023 has neither proceeded to judgment nor resulted in an adopted consent.
Relying on the Supreme Court in IEBC v Maina Kiai, the court identified final determination of the former suit as an essential ingredient of res judicata under section 7 of the Civil Procedure Act. Constructive res judicata under Henderson v Henerson equally presupposes a final determination. In the absence of that ingredient, res judicata cannot arise.
Whether the Applicant ought to have pleaded adverse possession in the Magistrates' Court
No. Magistrates' Courts lack jurisdiction to determine adverse possession claims; such jurisdiction is reserved to the Environment and Land Court, and proceedings rendered without jurisdiction are a nullity.
Relying on Sugawara v Kiruti and section 38 of the Limitation of Actions Act, and on the jurisdictional principle in Samuel Kamau Macharia and Owners of the Motor Vessel 'Lillian S', the court held that a party cannot be required to advance before a court lacking jurisdiction a claim only the ELC is competent to determine.
Whether judicial estoppel and approbation and reprobation justify striking out
No. The prior tenancy plea and the present adverse possession claim are not necessarily irreconcilable, and the Applicant obtained no judicial advantage from a judgment or adopted consent in the earlier suit; these are contested questions of fact for trial.
The court held it conceivable that a party may lawfully occupy one parcel as a tenant while asserting long occupation of an adjoining parcel owned by another. Citing John Florence Maritime Services, it held the doctrines could not justify striking out where the earlier proceedings did not culminate in a judgment or consent order conferring any advantage on the Applicant.
Whether the Originating Summons should be struck out under Order 2 Rule 15
No. Striking out is a draconian remedy exercised sparingly; the pleadings disclose a bona fide adverse possession claim raising substantial triable issues that can only be determined after a full hearing.
Applying DT Dobie v Muchina and Yaya Towers v Trade Bank, and the adverse possession principles in Wambugu v Njuguna and Kasuve v Mwaani Investments, the court held that a claim for adverse possession is fact-intensive and cannot be determined on affidavit evidence at an interlocutory stage.
Legal principles established
#- A consent only becomes a binding consent judgment or order upon formal adoption by the court; an unadopted draft consent cannot be enforced as though it were a decree of the court
- By virtue of section 38 of the Limitation of Actions Act, Magistrates' Courts lack jurisdiction to hear and determine claims for adverse possession, such jurisdiction being reserved to the Environment and Land Court
- Questions relating to the execution, discharge or satisfaction of a decree shall be determined by the court executing the decree and not by a separate suit
- Striking out is a draconian remedy to be exercised sparingly and only in the clearest of cases; a suit raising even a semblance of a cause of action or a single bona fide triable issue should proceed to trial
Court orders
#- 1.The Notice of Motion dated 11th February 2026 is dismissed in its entirety
- 2.The Originating Summons dated 23rd June 2025 shall proceed to hearing on its merits
- 3.The Respondent shall have the costs of the application
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and the Environment and Land Court Act - jurisdiction of the Environment and Land Court over adverse possession claims under section 38 of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okeyo v Thanya's Plaza Ltd (Environment and Land Case E035 of 2025) [2026] KEELC 4816 (KLR)", Case Analysis (2026). ELC Case No E035 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4816/eng@2026-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.