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ELCPartially AllowedELCA No. E003 of 2025· [2026] KEELC 1385 (KLR)

Korgorin v Kikwai & 2 others (Environment and Land Appeal E003 of 2025) [2026] KEELC 1385 (KLR)

Environment and Land Court
5 March 2026
6,593 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled magistrates cannot decide adverse possession claims, voiding a Bomet land judgment — but nobody won costs.

What this practically means

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Executive summary

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The Appellant, registered proprietor of Kericho/Kapsimbiri/464, sued the Respondents before the Magistrate's Court at Bomet for eviction, permanent injunction, mesne profits and damages. The Respondents denied his claim and counterclaimed for a declaration of adverse possession over 0.9 acres, asserting their late father bought the portion from the Appellant in 1979, paid the full price of Kshs 6,570/=, and occupied it openly by growing tea until an eviction demand in March 2023. On 28th January 2025 Hon. Boke CM dismissed the suit and allowed the counterclaim. On first appeal to the Environment and Land Court at Kericho, the Appellant argued the Respondents lacked locus standi and that adverse possession failed because their possession was permissive under a sale agreement. The Court held the Respondents properly defended and counterclaimed in their personal capacities and needed no letters of administration. On its own motion, the Court examined the trial court's jurisdiction and, guided by the Court of Appeal's decision in Sugawara v Kiruti, found that Magistrates' Courts have no jurisdiction over claims of adverse possession, such claims being reserved to the Environment and Land Court under Article 162(2)(b). Grounds not supported by submissions were deemed abandoned. The Court set aside the trial judgment but, having raised the jurisdictional issue suo motu, directed each party to bear its own costs of the appeal. The merits of the adverse possession claim remain undetermined and unremitted.

Key legal issues

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01

Locus standi of the Respondents to counterclaim

Holding

The Respondents defended and counterclaimed in their personal capacities, the same capacity in which they were sued, so no letters of administration were required and the trial court erred not in entertaining the counterclaim on this ground

Reasoning

The Appellant sued the Respondents as defendants and occupiers, not as legal representatives of their deceased father's estate. The defence of adverse possession and the declaratory orders flowed from their personal position as occupants. The abandoned preliminary objection had not raised locus standi in any event, having only complained of a pleaded violation of Order 2 Rules 1-5 of the Civil Procedure Rules. The ground of appeal therefore failed.

p. 29
02

Jurisdiction of the trial Magistrate's Court over adverse possession

Holding

The trial Magistrate lacked jurisdiction to determine the Respondents' claim of adverse possession, a claim reserved to the Environment and Land Court

Reasoning

Raising the question suo motu as permitted by the Supreme Court in Nasra Ibrahim Ibren, the Court relied on the Court of Appeal's decision in Sugawara v Kiruti, which construed the relevant provisions as vesting jurisdiction over adverse possession claims exclusively in the Environment and Land Court established under Article 162(2)(b). Section 9(a) of the Magistrates' Courts Act does not list adverse possession claims among matters assigned to Magistrates' Courts.

p. 41
03

Unsubmitted grounds of appeal

Holding

Grounds 1, 2, 5, 6, 7, 8 and 9 of the Memorandum of Appeal were deemed abandoned for want of submissions

Reasoning

Neither party had submitted on these grounds. Following authority that grounds not supported by submissions stand abandoned, the Court deemed them abandoned rather than determining them on the merits.

p. 45
04

Costs

Holding

Each party to bear its own costs of the appeal because the dispositive jurisdictional question was raised suo motu

Reasoning

Although costs follow the event under section 27 of the Civil Procedure Act, the Court, following Kimimgi v Onuko, declined to award costs since it raised and determined the jurisdictional issue on its own motion rather than at the instance of a party.

p. 45

Legal principles established

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  • Magistrates' Courts lack jurisdiction to hear and determine claims for adverse possession, which are reserved to the Environment and Land Court
  • A court may raise the issue of jurisdiction suo motu at any stage of the proceedings, even on appeal
  • A defendant sued in a personal capacity may mount a defence of adverse possession without letters of administration
  • Grounds of appeal not supported by submissions are deemed abandoned

Court orders

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  1. 1.The judgement delivered in Bomet CM ELC Case No. E010 of 2023 is hereby set aside
  2. 2.Each party shall bear own costs of the appeal
On appeal from
Magistrate's Court at Bomet (ELC)
Bomet CM ELC Case No. E010 of 2023
Jurisdiction invoked
Appeal to the Environment and Land Court from a Magistrates' Court (ELC) decision

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, "Korgorin v Kikwai & 2 others (Environment and Land Appeal E003 of 2025) [2026] KEELC 1385 (KLR)", Case Analysis (2026). ELCA No. E003 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1385/eng@2026-03-05

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