Osebe v Omaore & 2 others (Civil Appeal 102 of 2019) [2026] KECA 1138 (KLR)
The bottom line
#The Court of Appeal upheld the land boundary findings but ordered that the landowner's adverse possession claim must be fully heard in court before anyone can be evicted.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the doctrine of exhaustion deprived the superior court of jurisdiction
- 2.Whether the ELC properly determined the boundary dispute
- 3.Whether the learned Judge erred in failing to determine the appellant's counterclaim for adverse possession
Key legal issues
#Whether the doctrine of exhaustion barred the ELC's jurisdiction over the dispute
The doctrine of exhaustion did not deprive the ELC of jurisdiction because the dispute included a counterclaim for adverse possession outside the Land Registrar's mandate, and the objection was waived by the appellant's participation and consent to the statutory process.
The court reaffirmed the doctrine as settled but emphasized it is not absolute. The pleadings disclosed a substantive adverse possession counterclaim which the Land Registrar could not determine. Further, the appellant never raised the objection before the ELC and consented to the reference of the matter to the Land Registrar. Having invoked and submitted to the statutory process, he could not approbate and reprobate by challenging jurisdiction only after an adverse outcome; the objection was waived by his conduct.
Whether the ELC properly determined the boundary dispute based on the Land Registrar's and County Surveyor's reports
The boundary ascertainment was conducted in substantial compliance with sections 18 and 19 of the Land Registration Act, and the learned Judge was entitled to rely on and adopt the findings as regards the boundary dispute.
The exercise was undertaken pursuant to a consent order. Both officers visited the properties, took ground measurements, considered the Registry Index Map and ground features, and filed reports. The parties were afforded an opportunity to comment; only the respondents submitted. The appellant did not cooperate in the exercise and filed no submissions or objections before the ELC, and could not impeach the outcome on appeal on account of his own non-participation.
Whether the learned Judge erred in failing to determine the appellant's counterclaim for adverse possession
The appeal succeeds on this ground: the ELC could not finally dispose of the adverse possession counterclaim by adopting the Registrar's report; the counterclaim remained undetermined and had to be heard and decided on its merits.
The Land Registrar and County Surveyor were mandated only to ascertain and fix boundaries. Their reports addressed encroachment and boundaries but could not determine a claim to ownership by adverse possession, which fell squarely within the court's purview. By entering judgment solely on the reports and ordering eviction without addressing the counterclaim, the court left a properly pleaded, central claim unresolved. On that limited ground the court set aside that part of the decision and remitted the counterclaim for hearing before a judge other than Mutungi, J.
Legal principles established
#- The doctrine of exhaustion is not absolute; it does not apply where the dispute extends beyond the statutory mandate of the alternative dispute-resolution body, and a litigant who participates in proceedings without objection cannot raise exhaustion for the first time on appeal.
- A claim for adverse possession falls outside the statutory mandate of the Land Registrar under sections 18 and 19 of the Land Registration Act and must be adjudicated by the court on its merits.
- A court may not enter final judgment disposing of a properly pleaded counterclaim without addressing it; an undetermined substantive claim must be heard and decided on its merits.
- A litigant who consents to and participates in a statutory process without objection cannot later impeach the outcome of that process on appeal.
Court orders
#- 1.The appellant's grounds challenging the boundary ascertainment process and the jurisdiction of the Environment and Land Court are dismissed
- 2.The ruling of the Environment and Land Court dated 12th October, 2018, is set aside only to the extent that it finally disposed of the appellant's counterclaim for adverse possession without determining the same
- 3.The Suit is remitted back to the Environment and Land Court at Kisii for hearing and determination of the appellant's counterclaim dated 24th April, 2015, on its merits before a Judge other than Mutungi, J.
- 4.Each party shall bear their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Kisii
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction
Relief refused
#Setting aside the boundary ascertainment findings and the boundary determination based on the Land Registrar's and County Surveyor's reports
The exercise was undertaken in substantial compliance with sections 18 and 19 of the Land Registration Act pursuant to a consent order, and the appellant failed to participate or object
The appellant's jurisdictional challenge founded on the doctrine of exhaustion
The dispute was not confined to boundary ascertainment, as the counterclaim for adverse possession fell outside the Land Registrar's statutory mandate; further, the objection was waived by participation and consent
Costs
Each party shall bear their own costs of the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The doctrine of exhaustion is a rule of judicial restraint designed to ensure that prescribed statutory mechanisms are first utilized.
The right to object (if at all) was waived by the appellant's conduct and cannot be entertained at this stage of the proceedings.
They did not, and indeed could not, determine the appellant's claim to ownership by adverse possession. That claim fell squarely within the purview of the court and required adjudication on its merits.
The ruling of the Environment and Land Court dated 12th October, 2018, is set aside only to the extent that it finally disposed of the appellant’s counterclaim for adverse possession without determining the same.
The Suit is remitted back to the Environment and Land Court at Kisii for hearing and determination of the appellant’s counterclaim dated 24th April, 2015, on its merits before a Judge other than Mutungi, J.
Issues in the judgment
#The judgment records the appellant's counterclaim as dated 11th May, 2015 in the narrative, but the final orders remit for hearing of a counterclaim dated 24th April, 2015 - an internal inconsistency in dates.
The judgment states the respondents' submissions were filed on 16th April, 2018, in response to directions given on 22nd June, 2018 - the dates appear inconsistent.
The judgment does not state the case number of the appeal or of the suit in the ELC, and no neutral citation is given.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osebe v Omaore & 2 others (Civil Appeal 102 of 2019) [2026] KECA 1138 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1138/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.