Allan Makhino v Christopher B. Aleke Dondo
The bottom line
#A Kenyan court confirmed that only the Environment and Land Court can decide adverse possession claims, and ordered the occupier to vacate within 90 days.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over adverse possession claims
The trial court had no jurisdiction to determine the appellant's adverse possession counterclaim; it erred in deciding the merits and should have struck the claim out
Relying on section 38 of the Limitation of Actions Act and the Court of Appeal decision in Sugawara v Kiritu, the court held that jurisdiction to hear adverse possession claims is vested exclusively in the Environment and Land Court. Since jurisdiction goes to the heart of the matter, the trial magistrate's determination of the counterclaim on the merits was a nullity and the proper course was striking out for want of jurisdiction.
Respondent's title and the appellant's trespass
The respondent proved lawful registration through succession; the appellant failed to displace the title and is a trespasser
The respondent produced a search certificate showing registration on 30th July 2020 following lawful succession. Under sections 24, 25 and 26 of the Land Registration Act his title is absolute and indefeasible absent fraud, misrepresentation, illegality or corruption. The appellant alleged a 1970 survey error but adduced no evidence; under section 109 of the Evidence Act the evidential burden shifted to him and was not discharged.
General damages for trespass of Kshs. 300,000
The award stands; trespass is actionable per se and the trial court exercised its discretion properly
Trespass is actionable per se without proof of actual damage. Applying Shah v Mbogo, the appellate court will not interfere with discretion unless irrelevant matters were considered, relevant matters ignored, or the award plainly wrong. The trial court considered the size of the land, the period of ownership and the decision in Philip Ayaya v Chrispinus Ngayo, so there was no basis to interfere.
Legal principles established
#- Magistrates' courts have no jurisdiction to hear and determine claims based on adverse possession; such claims are vested in the Environment and Land Court
- A first appellate court must re-assess, re-evaluate and re-analyse the facts and law and reach its own independent conclusions
- Registration vests absolute and indefeasible rights unless obtained through fraud, misrepresentation, illegality, want of procedure or corruption
- An appellate court will not interfere with an award of damages unless the lower court considered irrelevant matters, failed to consider relevant matters, or the award was plainly wrong
Court orders
#- 1.The appellant's counterclaim is struck out with costs for want of jurisdiction
- 2.Judgment entered for the respondent: appellant and his family, servants, agents and/or relatives to vacate land parcel No. Kakamega/Nzoia/965 within 90 days, in default eviction orders to issue
- 3.Order that the appellant is not entitled to enter upon, remain on or use land parcel No. Kakamega/Nzoia/965
- 4.Permanent injunction restraining the appellant, whether by himself, his servants, agents, and or relatives from entering, remaining on or using land parcel No. Kakamega/Nzoia/965, effective after 90 days
- 5.Damages for trespass awarded to the respondent in the sum of Kshs. 300,000/=
- 6.Costs of the suit before the lower court and interest thereon awarded to the respondent
- 7.Each party to bear its own costs of the appeal
- On appeal from
- Chief Magistrate's Court at Kakamega
- Kakamega CMELC Case No. E052 of 2020
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from magistrates' courts in land matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Allan Makhino v Christopher B. Aleke Dondo", Case Analysis (2026). ELC Appeal No. E083 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6070/eng@2026-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.