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ELCOtherELC Appeal No. E019 of 2024· [2026] KEELC 6132 (KLR)

Mathlida Odemba Owino v Juma Duberia

Environment and Land Court of Kenya
2 October 2026
ADA.E. Dena
4,457 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a magistrate's land ruling because magistrates cannot decide adverse possession claims—only the Environment and Land Court can.

What this practically means

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Executive summary

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The appellant appealed against the judgment of Hon. E. Tsimonjero, Senior Resident Magistrate, in Ukwala PM ELC No. E045 of 2021, which had allowed the respondent's counterclaim for adverse possession over parcel East Ugenya/Kathieono 'B'/36 and ordered transfer of the suit parcel to the respondent. The appellant's grounds were that the trial magistrate ignored her arguments, assumed she had no grounds for her plaint, and disregarded constitutional principles of justice; she sought allowance of the appeal, setting aside of the judgment, and costs. Both parties filed written submissions; the appellant attacked the adverse possession finding on interruption of possession, while the respondent maintained the trial court considered all pleadings and evidence and that his occupation exceeded twelve years. Before delivering judgment, the court raised, on its own motion, the question whether the trial magistrate had jurisdiction to entertain an adverse possession counterclaim, deferring judgment and inviting supplementary submissions on which only the respondent complied. Relying on Sections 37 and 38 of the Limitation of Actions Act, Section 9(a) of the Magistrates' Courts Act, and the Court of Appeal's decision in Pauline Chemuge Sugawara, the court held that magistrates' courts have no jurisdiction to determine adverse possession claims, which are reserved to the ELC. Declining to review the merits of a judgment it found void ab initio, the court dismissed the appeal but declared the trial judgment a nullity and set it aside in its entirety, leaving the parties free to pursue their claims afresh before the ELC, with each party bearing its own costs of the appeal.

Key legal issues

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01

Jurisdiction of Magistrates' Courts over adverse possession claims

Holding

Magistrates' Courts lack jurisdiction to adjudicate claims founded on adverse possession; such claims are exclusively for the ELC/High Court under Sections 37 and 38 of the Limitation of Actions Act and Article 162(2)(b)

Reasoning

Section 9(a) of the Magistrates' Courts Act lists matters gazetted magistrates may hear, but adverse possession is not among them. Sections 37 and 38 of the Limitation of Actions Act confer power on the High Court and ELC alone. The Court of Appeal in Pauline Sugawara so clarified, and ELC decisions (Mboya J; Yano J) support the position. A void judgment cannot be cured by re-evaluation of evidence.

p. 15
02

Remedy where the trial court lacked jurisdiction over the counterclaim

Holding

The proper course was to set aside the trial judgment in its entirety and leave parties to pursue their claims afresh before the ELC, since the plaintiff's claim and counterclaim cannot be severed

Reasoning

The court held that pronouncing on the merits or remaining grounds would breathe life into a void judgment. The plaintiff's claim was properly before the magistrate's court, but the claim and counterclaim share the same subject matter and cannot be severed, so the entire judgment fell with the jurisdictional defect.

p. 21
03

Court's power to raise jurisdiction suo motu on appeal

Holding

The court may raise a jurisdictional issue on its own motion at any stage, but parties must be accorded an opportunity to be heard

Reasoning

Relying on Kenya Revenue Authority v Hemed, the judge noted the jurisdictional issue was raised neither as a preliminary objection before the trial court nor in the appeal, so she deferred judgment and invited supplementary submissions; only the Respondent complied.

p. 9

Legal principles established

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  • Magistrates' Courts do not have jurisdiction to determine claims of adverse possession, which are reserved to the High Court/ELC under Sections 37 and 38 of the Limitation of Actions Act
  • A jurisdictional point may be raised at any stage, including on appeal and by the court suo motu, and parties must be heard on it
  • Proceedings and determinations by a court without jurisdiction are nullities

Court orders

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  1. 1.The Appeal be and is hereby dismissed.
  2. 2.The Judgment of Hon. E. Tsimonjero, Senior Resident Magistrate delivered on 27th June, 2024 in Ukwala PM ELC No. E045 of 2021 be and is hereby declared a nullity and set aside in its entirety for want of jurisdiction.
  3. 3.The parties to bear their own costs of this appeal.
On appeal from
Ukwala Principal Magistrates' Court (ELC)
ELC No. E045 of 2021
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Sections 13 and 26(3) and (4) of the Environment and Land Court Act; Sections 37 and 38 of the Limitation of Actions Act

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, "Mathlida Odemba Owino v Juma Duberia", Case Analysis (2026). ELC Appeal No. E019 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6132/eng@2026-10-02

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