Odoje v Mikolo (Environment and Land Appeal E015 of 2024) [2025] KEELC 6645 (KLR)
The bottom line
#Kenya's Siaya Environment and Land Court ruled that magistrates' courts cannot decide adverse possession land claims, voiding a Bondo court's judgment.
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 appeal is merited
- 2.Whether the trial court was right to infer and grant adverse possession
- 3.What is the acreage in occupation by the Respondent
- 4.Whether the award of costs was justified
- 5.What reliefs ought to issue
- 6.Who bears the costs of this Appeal
Key legal issues
#Whether the trial court could infer adverse possession though not expressly pleaded
Some ingredients of adverse possession having been pleaded in paragraph 4 of the plaint, adverse possession could be inferred under the Odd Jobs principle; the failure was not one of pleading but of jurisdiction.
The plaint pleaded peaceful possession and occupation, satisfying some ingredients of adverse possession. Relying on Odd Jobs vs Mubia and its progeny, the court held an unpleaded issue may be decided where evidence and argument leave it to the court. Thus the plea that adverse possession was never pleaded failed, but the trial court's decision could not stand because magistrates lack jurisdiction over adverse possession claims.
Whether the magistrates' court had jurisdiction to grant adverse possession
The trial court had no jurisdiction to enter judgment on the basis of adverse possession; only the Environment and Land Court may determine such claims, and the judgment was set aside on that basis alone.
Following Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiruti, section 9(a) of the Magistrates' Court Act does not include adverse possession claims. Jurisdiction may be raised at any stage, including on appeal. The court was bound by the Court of Appeal decision and set aside the judgment notwithstanding the confusion existing at the time of the trial court's decision.
Costs of the suit and the appeal
The trial court's costs award was set aside and each party ordered to bear its own costs at both levels, because adverse possession was properly inferrable from the pleadings but the jurisdictional decision applied retrospectively.
Costs normally follow the event, but the court found special circumstances: the appellant succeeded purely on a point of jurisdiction settled retrospectively by Sugawara, while the respondent had pleaded facts sufficient to found an adverse possession claim. Fairness therefore dictated that each party shoulder its own expenses at both the trial and the appeal.
Legal principles established
#- It is only the Environment and Land Court which has jurisdiction to hear and determine claims for adverse possession; magistrates' courts lack such jurisdiction under section 9(a) of the Magistrates' Court Act.
- A point on jurisdiction may be raised at any stage of proceedings, even on appeal where it was not raised at trial.
- A court may base its decision on an unpleaded issue if it appears from the course followed at the trial that the issue was left to the court for decision.
Court orders
#- 1.The appeal is allowed on the basis that the trial court lacked jurisdiction to enter judgment on adverse possession
- 2.The judgment of the trial court granting the Respondent a portion of the suit property on the basis of adverse possession is set aside
- 3.The proposal for a retrial is declined
- 4.The award of costs of the suit at the trial court is set aside and replaced with an order that each party bears its own costs at the trial court and on appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Bondo Principal Magistrate's Court (ELC)
- ELC No. 060 of 2022
- Jurisdiction invoked
- Section 78 of the Civil Procedure Act (first appellate jurisdiction)
Relief refused
#Retrial of the primary suit
Issues of how the grant was obtained lie with the court that handled the succession
Costs of the appeal against the Respondent
Given the retrospective application of the jurisdictional decision in Sugawara, each party was ordered to bear its own costs
Costs
Each party to bear its own costs both at the trial court level and on 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.
I will also be guided by the case of Selle Vs. Associated Motor Boat Co. (EA.123) where the court stated thus; '……Briefiy put this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.'
My hands are therefore tied by the decision of the Court of Appeal and I must set aside the judgement granting the Respondents a portion of the suit property on the basis of adverse possession. The trial court lacked jurisdiction.
I would set aside the award and replace it with orders that each party should bear its own costs both at the trial court level and this appeal.
Issues in the judgment
#The trial court's judgment, as reproduced, gives inconsistent measurements of the portion awarded (0.60Ha and 0.060Ha) in successive sentences.
The pleadings indicate the appellant's witness statement referred to 0.06Ha which was changed to 0.6Ha, and no survey report was produced; the exact acreage was never conclusively determined.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odoje v Mikolo (Environment and Land Appeal E015 of 2024) [2025] KEELC 6645 (KLR)", Case Analysis (2025). Appeal from Bondo PM ELC No. 060 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6645/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.