Oloo & 2 others v Ojwang (Sued as Administratrix of the Estate of John Michael Ojwang Ongoma ) (Environment and Land Appeal E005 of 2024) [2025] KEELC 5607 (KLR)
The bottom line
#Kenya's magistrates' courts cannot decide land-grabbing-by-long-occupation claims, so a widow's 45-year land win was cancelled without deciding who owns the land.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether adverse possession was pleaded by the Respondent before the trial court
- 2.Whether the trial court had jurisdiction to entertain the suit founded on adverse possession
Key legal issues
#Whether the claim was founded on adverse possession
Yes. Despite adverse possession not being specifically pleaded, the plaint (particularly paragraph 8 and the prayer for declaration of title by acquisition) and the trial court's finding on 45 years of occupation showed the claim was premised on adverse possession.
The court read the plaint and reliefs together: the plaintiff sought a declaration that she and her deceased husband had acquired title through long residence, and the trial court determined ownership based on 45 years' occupation. The appellant's own concession that the sale agreement was void under the Land Control Act and time-barred under section 4 of the Limitation of Actions Act meant the purchaser continued in occupation without permission, reinforcing an adverse-possession foundation.
Whether the trial court had jurisdiction to entertain the suit
No. Following Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kirut (2024) KECA 1417 (KLR), magistrates' courts have no jurisdiction to determine adverse possession claims; the trial court acted ultra vires.
Relying on the Court of Appeal's conclusive determination, section 38 of the Limitation of Actions Act vests jurisdiction over adverse possession claims in the Environment and Land Court. Magistrates' courts' jurisdiction is pecuniary under section 7 of the Magistrates' Courts Act, and in adverse possession claims the value of land may be unknown or exceed that pecuniary limit. The appeal therefore succeeded on jurisdiction.
Legal principles established
#- Magistrates' Courts do not have jurisdiction to determine claims of adverse possession, by virtue of section 38 of the Limitation of Actions Act.
- Striking out a suit for want of jurisdiction is not a determination on the merits; the plaintiff may file in the correct forum.
Court orders
#- 1.The judgment delivered on 1st March 2024 is set aside
- 2.The suit in the trial Court is struck out for want of jurisdiction
- 3.The Plaintiff is at liberty to move the right forum to decide the dispute on merits
- 4.Each party shall bear its own costs of the suit in the trial court and this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court
- Jurisdiction invoked
- First appellate jurisdiction over the magistrates' court; jurisdiction of magistrates' courts over adverse possession considered under section 38 of the Limitation of Actions Act and section 7 of the Magistrates' Courts Act
Relief refused
#Appellants' prayer that the appeal be allowed with costs
Appeal succeeded but the court ordered each party to bear its own costs
Costs
Each party shall bear its own costs of the suit in the trial court and this 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 judgment delivered on 1st March 2024 is hereby set aside, and the suit in the trial Court is struck out for want of jurisdiction.
It is that the suit failed on a technicality which is that the Court did not have jurisdiction to handle the matter. They are at liberty to move the right forum to decide the dispute on merits.
Each party shall bear its own costs of the suit in the trial court and this appeal.
at no point in time did the Magistrates' Court have the jurisdiction to determine adverse possession claims.
Issues in the judgment
#The judgment states that adverse possession was not specifically pleaded but then notes paragraph 8 of the Plaint raises adverse possession, and counsel for the Respondent asserted it was specifically pleaded at paragraph 8 - an internal tension in the court's framing.
Date of death of the Respondent's husband is inconsistently stated: PW1 testified he passed on in 1978, while Respondent's counsel submitted he died in 2010.
The judgment does not disclose the appeal case number or the trial court case number; the Memorandum of Appeal is referenced only by date.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oloo & 2 others v Ojwang (Sued as Administratrix of the Estate of John Michael Ojwang Ongoma ) (Environment and Land Appeal E005 of 2024) [2025] KEELC 5607 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 28th March 2024 (trial court suit over land parcel Kamagambo/Kanyajuok/454; appeal from judgment delivered 1st March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5607/eng@2025-07-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.