Odinga v Ambundo & 2 others (Environment and Land Miscellaneous Application E004 of 2025) [2025] KEELC 4439 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that magistrate's courts cannot decide adverse possession claims, so a Vihiga land dispute was transferred to the ELC.
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 Magistrate's court had jurisdiction to determine the counterclaim based on adverse possession
- 2.Whether Vihiga PM ELC No 17 of 2019 should be transferred to the Environment and Land Court
Key legal issues
#Jurisdiction of magistrate's courts over adverse possession claims
The counterclaim based on adverse possession falls outside the magistrate's court's jurisdiction under section 38 of the Limitation of Actions Act.
The court distinguished the main suit, which was within the magistrate's jurisdiction, from the counterclaim asserting possession for over 12 years. Since adverse possession claims are governed by section 38 of the Limitation of Actions Act, and a prior appeal decision had established that magistrates' courts lack jurisdiction over such suits, the counterclaim could not be tried in the subordinate court.
Transfer of the suit in the interest of justice
Because the suit and counterclaim are intertwined, the whole suit was transferred to the ELC in the interest of justice.
The court noted the defendant was entitled to defend the claim, and adverse possession formed part of his defence. Given the intertwining of claim and counterclaim, severance was inappropriate; the just course was to transfer the entire suit to the Environment and Land Court for trial and determination. The application was unopposed.
Legal principles established
#- Magistrate's courts lack jurisdiction to hear and determine suits based on adverse possession under section 38 of the Limitation of Actions Act
- Where a claim and a counterclaim based on adverse possession are intertwined, transfer to a court with jurisdiction serves the interest of justice
Court orders
#- 1.Vihiga SPMC ELC Case No 17 of 2019, Florence Medina Ambundo & 2 Others vs Joseph Mukuna Odinga, transferred to the Environment and Land Court for hearing and disposal
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction to transfer suits; section 38 of the Limitation of Actions Act (jurisdiction over adverse possession claims)
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.
it was decided in Civil Appeal E141 of 2022 that Magistrate's courts had no jurisdiction to hear and determine suits based on adverse possession.
The suit and the counterclaim are intertwined. The Defendant having been sued was entitled to make his defence against the plaintifis' claim and part of his defence is that he has had adverse possession of the land.
The application is allowed in terms of prayer 1 thereof namely; that Vihiga SPMC ELC Case no 17 of 2019 Florence Medina Ambundo & 2 Others vs Joseph Mukuna Odinga is hereby transferred to this court for hearing and disposal. No orders as to costs.
Issues in the judgment
#Statute misnamed in judgment text as 'Limitation of Sections Act'
Case number of the present application not expressly stated; reference to Civil Appeal E141 of 2022 conflated with the applicant's grounds
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odinga v Ambundo & 2 others (Environment and Land Miscellaneous Application E004 of 2025) [2025] KEELC 4439 (KLR)", Case Analysis (2025). Civil Appeal E141 of 2022 (referenced); Vihiga PM ELC No 17 of 2019 (the suit transferred). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4439/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.