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ELCPartially AllowedAppeal against judgment in Lamu Principal Magistrate ELC Case Number 8 of 2019

Omar v Muhaji (Environment and Land Appeal E019 of 2022) [2026] KEELC 1191 (KLR)

Environment and Land Court
25 February 2026
4,825 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled courts, not land committees or registrars, decide disputes over duplicate land titles once titles are issued.

What this practically means

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Executive summary

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The appellant appealed against the judgment of T.A. Sitati, Principal Magistrate, delivered on 16th May 2022 in Lamu PM ELC Case No. 8 of 2019, which dismissed the appellant's suit over plot Lamu/Wiyoni Scheme/568 for want of jurisdiction while allowing the 1st respondent's counterclaim. The dispute concerned two titles issued over the same parcel, the appellant's title having been issued first but never released, and the 1st respondent claiming purchase from one Banguro and relying on a County Disputes Resolution Team decision of 28th May 2019 in her favour. The appellant argued the magistrate had jurisdiction under Article 162(2)(b) of the Constitution, Section 13 of the Environment and Land Court Act and Section 101 of the Land Registration Act, and that only a court could cancel or rectify a register under Sections 26 and 80 of the Land Registration Act. The respondent maintained the magistrate correctly found the disputes committee had jurisdiction and that the appellant had not exhausted the dispute-resolution mechanism. The ELC at Malindi, per Mwangi Njoroge J, held the dispute was properly before the magistrate and should have been resolved substantively; that the magistrate's finding of no jurisdiction was inconsistent with his decision to grant the counterclaim; that an original suit and a counterclaim are separate suits; that the magistrate erred in treating the respondent's purchase from Banguro as undisputed; and that the appellant's title having issued first, the Land Registrar lacked power to cancel it. The appeal was allowed, the trial judgment and decree set aside, and the suit remitted for hearing de novo before a magistrate other than Hon T.A. Sitati, with costs of the appeal borne by the respondents jointly and severally.

Questions the Court framed

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

  1. 1.Did the learned trial magistrate err by holding that the dispute resolution committee had jurisdiction to hear and determine objections where title had issued while only the ELC had jurisdiction to hear and determine disputes emanating from the adjudication process?
  2. 2.Did the learned trial magistrate ignore the fact that the appellant's title had been issued before the 1st respondent's title and that the Land Registrar lacked power to cancel it, and thus arrived at a wrong conclusion?
  3. 3.Did the learned trial magistrate fail to appreciate the import of the Land Registrar's recall of the 1st respondent's title?
  4. 4.Was the issue of whether or not the 1st respondent bought the suit land from Banguro disputed and was the learned trial magistrate in error in holding it was not?
  5. 5.Did the learned trial magistrate consider matters or evidence not placed before him and also fail to appropriately consider all evidence placed before him and thus arrive at a wrong conclusion?
  6. 6.What orders should issue?

Key legal issues

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01

Jurisdiction over disputes on land arising from the adjudication process after titles have issued

Holding

The dispute was properly before the magistrate; the magistrate erred in holding he lacked jurisdiction, as under Article 162(2)(b), Section 13 of the ELC Act and Section 101 of the Land Registration Act the dispute relating to title fell to be determined substantively.

Reasoning

The court held that where two titles had issued over the same parcel to different persons, the dispute was one relating to title to land within the ELC/subordinate courts' jurisdiction. The trial magistrate wrongly downed his tools on exhaustion grounds without noting the statutory scheme vesting title disputes in the courts, and his refusal of jurisdiction was inconsistent with his decision to grant the counterclaim in the same judgment.

p. 9
02

Whether a court lacking jurisdiction may still determine the counterclaim

Holding

No. The counterclaim is a separate suit standing on its own; deciding it while declining jurisdiction over the main suit was erroneous and impermissible.

Reasoning

The court found the trial magistrate effectively tried a matter he had determined he lacked jurisdiction over. He also ignored the uncontroverted fact that the appellant's title was issued before the respondent's, and that the Land Registrar had no power to cancel a title, that power resting only in a court under Section 26 of the Land Registration Act.

p. 9
03

Whether the respondent's purchase from Banguro was undisputed

Holding

It was disputed; the magistrate erred in listing it as undisputed, contrary to the appellant's pleading that the sale concerned a different parcel.

Reasoning

The appellant pleaded in paragraph 5 of the plaint that the transaction between Banguro and the 1st respondent occurred in respect of a different parcel of land. The magistrate's classification of that issue as undisputed contradicted the pleadings and evidence, evidencing failure to consider all the evidence placed before him.

p. 9

Legal principles established

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  • Disputes relating to title to land fall under the jurisdiction of the Environment and Land Court, and a court seized of a dispute over duplicity of titles must resolve it substantively rather than decline jurisdiction on the basis of the adjudication dispute-resolution mechanism.
  • A court that finds it lacks jurisdiction cannot, in the same judgment, decide the counterclaim; an original suit and counterclaim are separate suits and each stands on its own.
  • Once title has issued, absolute ownership vests in the proprietor and the title can only be nullified on the grounds stated in Section 26 of the Land Registration Act; only a court of law may cancel or rectify it.

Court orders

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  1. 1.The appeal is hereby allowed
  2. 2.The judgment and decree of T.A. Sitati, Principal Magistrate delivered on 16/5/2022 in Lamu Principal Magistrate ELC Case Number 8 Of 2019 and all consequential orders are hereby set aside
  3. 3.The suit Lamu Principal Magistrates ELC Case Number 8 of 2019 is referred back to the Magistrate's Court at Lamu to be heard de novo by any magistrate other than Hon T.A. Sitati, Principal Magistrate
  4. 4.The costs of the present appeal shall be borne by the respondents jointly and severally

The bench

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

majority

Wrote the judgment

On appeal from
Principal Magistrate's Court, Lamu
Lamu Principal Magistrate ELC Case Number 8 of 2019
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act; Section 101 of the Land Registration Act

Relief refused

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Appellant's plea that this court substitute its own judgment allowing the plaint dated 29th October 2019

Not all the merits of the suit were considered by the trial magistrate; the suit requires a hearing de novo

p. 9

Costs

The costs of the present appeal shall be borne by the respondents jointly and severally

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.

It is clear from the above cited provisions that the dispute was properly before the magistrate for determination and he ought to have resolved the same substantively rather than reject it on the basis that he lacked jurisdiction.
p. 9Jurisdiction of ELC and subordinate courts over title disputes
In this court's view, if the court found that it lacked jurisdiction, it ought to have not made any decision on the counterclaim too.
p. 9Impermissibility of deciding a counterclaim after declining jurisdiction
The judgment and decree of T.A. Sitati, Principal Magistrate delivered on 16/5/2022 in Lamu Principal Magistrate ELC Case Number 8 Of 2019 and all consequential orders are hereby set aside;
p. 10Final orders - setting aside of trial judgment
The suit Lamu Principal Magistrates ELC Case Number 8 of 2019 is hereby referred back to the Magistrate's Court at Lamu to be heard de novo by any magistrate other than Hon T.a. Sitati, Principal Magistrate;
p. 10Final orders - hearing de novo before a different magistrate

Issues in the judgment

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minor

The trial magistrate's judgment contains an internal contradiction noted by this court: it declined jurisdiction over the main suit yet granted the counterclaim on the same facts.

minor

The Land Registrar gave contradictory evidence on the ownership findings of the County Disputes Resolution Team, which he could not explain.

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, "Omar v Muhaji (Environment and Land Appeal E019 of 2022) [2026] KEELC 1191 (KLR)", Case Analysis (2026). Appeal against judgment in Lamu Principal Magistrate ELC Case Number 8 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1191/eng@2026-02-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.