Ajemo & another v Ojala (Civil Appeal E029 of 2024) [2025] KEELC 5072 (KLR)
The bottom line
#Kenya's High Court ruled that magistrates' courts cannot decide adverse possession land claims—only the Environment and Land Court can—so the ownership judgment was cancelled.
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 respondent had acquired title to the whole of the suit property by adverse possession
- 2.Whether the trial court had jurisdiction to hear and determine a claim for adverse possession under section 38 of the Limitation of Actions Act
Key legal issues
#Jurisdiction of the Magistrates' Court over adverse possession claims
The trial magistrate's judgment was a nullity because the Magistrates' Court lacked jurisdiction to hear and determine claims under section 38 of the Limitation of Actions Act
The court reasoned that jurisdiction is a creature of statute and cannot be arrogated or assumed. Relying on the Supreme Court's decision in Okoiti v Portside Freight Terminals and the Court of Appeal's holding in Sugawara v Kiruti, the court found that section 38 of the Limitation of Actions Act specifically confers jurisdiction over adverse possession claims on the High Court/Environment and Land Court, not the Magistrates' Court. The trial court should have satisfied itself of jurisdiction before proceeding to determine the claim.
Scope of adverse possession - whole parcel versus portion occupied
The appellants did not dispute that adverse possession had been gained, only the extent; the land claimed must be definitely identifiable, and the respondent had pleaded and claimed the whole parcel
The court noted that the appellants did not contest that the respondent had acquired title by adverse possession, only whether the whole parcel as opposed to the portion occupied was correctly decreed. It observed that the respondent pleaded and claimed the entirety of the suit property and his evidence on uninterrupted occupation since 1987 was uncontroverted. However, this finding became academic once the jurisdictional defect was established.
Legal principles established
#- A court must independently satisfy itself that it has jurisdiction before determining a dispute; without jurisdiction it must down its tools
- Hearing and determination of claims under section 38 of the Limitation of Actions Act is limited to the Environment and Land Court, to the exclusion of the Magistrates' Court
- On a first appeal, the court is duty bound to evaluate the evidence before the trial afresh and come to its own independent findings
Court orders
#- 1.The appeal is allowed and the judgment of the trial court is set aside
- 2.The suit in the trial court is struck out for want of jurisdiction
- 3.No order as to costs; each party to bear own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court
- Primary suit over Land Parcel No. Kanyamwa/Kayambo-Kwamo/1064
- Jurisdiction invoked
- First appeal under Order 42 Rule 4 of the Civil Procedure Rules 2010; question of jurisdiction arising from section 38 of the Limitation of Actions Act, CAP 22
Relief refused
#Respondent's declaration of adverse possession over the whole suit property
The trial court lacked jurisdiction to entertain the claim, as section 38 of the Limitation of Actions Act confers such jurisdiction on the Environment and Land Court, not the Magistrates' Court
Costs
No order as to costs; each party to bear 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 instant appeal lodged by way of a memorandum of appeal dated 28th May 2024 is hereby allowed, and the judgment of the trail Court set aside. Further, the suit in trial court is struck out with no order as to costs because it was filed in a Court without jurisdiction. Each party to bear own costs of this Appeal.
it is the finding of this court that the learned trial magistrate's judgment was faulty in the sense that it was made by a Court which did not have jurisdiction. I proceed to set it aside.
hearing and determination of such matters was specifically limited to the Environment and Land Court to the exclusion of Magistrates' Court.
Issues in the judgment
#Grounds of appeal do not expressly raise jurisdiction; the court invokes Order 42 Rule 4 to determine a jurisdictional issue said to arise 'indirectly' from the fourth ground
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ajemo & another v Ojala (Civil Appeal E029 of 2024) [2025] KEELC 5072 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 28th May 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5072/eng@2025-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.