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ELCPartially AllowedMemorandum of Appeal dated 28th March 2024 (trial court suit over land parcel Kamagambo/Kanyajuok/454; appeal from judgment delivered 1st March 2024)

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)

Environment and Land Court
15 July 2025
3,269 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal against a magistrates' court judgment delivered on 1st March 2024 in which the Respondent, Rose Okeyo Achieng, widow and administratrix of the estate of Michael Ojwang Ongoma, succeeded in a claim that she and her deceased husband had acquired title to land parcel Kamagambo/Kanyajuok/454. Her husband had bought the land in 1976 from Oloo Onjwere under an unwritten sale agreement for Kshs. 9,000/- and remained in occupation until his death; the Appellants, including the vendor's son who obtained title through succession in 2005, contended they were registered proprietors and innocent purchasers. The Appellants argued on appeal that the suit was time-barred, that the sale agreement became void under the Land Control Act, and that the trial court lacked jurisdiction. The High Court, re-evaluating the record as a first appellate court, held that although adverse possession was not specifically pleaded, the plaint and the trial court's finding on 45 years of occupation showed the claim was premised on adverse possession. Applying the Court of Appeal's decision in Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kirut (2024), the court held that magistrates' courts have no jurisdiction to determine adverse possession claims under section 38 of the Limitation of Actions Act. The appeal was allowed: the trial judgment of 1st March 2024 was set aside and the suit struck out for want of jurisdiction, without prejudice to filing in the proper forum, with each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether adverse possession was pleaded by the Respondent before the trial court
  2. 2.Whether the trial court had jurisdiction to entertain the suit founded on adverse possession

Key legal issues

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01

Whether the claim was founded on adverse possession

Holding

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.

Reasoning

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.

p. 6
02

Whether the trial court had jurisdiction to entertain the suit

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The judgment delivered on 1st March 2024 is set aside
  2. 2.The suit in the trial Court is struck out for want of jurisdiction
  3. 3.The Plaintiff is at liberty to move the right forum to decide the dispute on merits
  4. 4.Each party shall bear its own costs of the suit in the trial court and this appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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Appellants' prayer that the appeal be allowed with costs

Appeal succeeded but the court ordered each party to bear its own costs

p. 7

Costs

Each party shall bear its own costs of the suit in the trial court and this appeal.

Quotable passages

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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.
p. 6Final orders - setting aside trial judgment and striking out suit
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.
p. 6Liberty to file in the correct forum
Each party shall bear its own costs of the suit in the trial court and this appeal.
p. 7Costs
at no point in time did the Magistrates' Court have the jurisdiction to determine adverse possession claims.
p. 6Want of magistrates' jurisdiction over adverse possession

Issues in the judgment

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minor

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.

minor

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.

minor

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

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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, "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.