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ELCDismissedNotice of Motion dated 10th June 2025 in an Originating Summons dated 18th December 2024 (adverse possession of 1 acre out of LR Muhito/Gaturia/26)

Karobere v Mutu & 2 others (Environment and Land Case E019 of 2024) [2026] KEELC 1947 (KLR)

Environment and Land Court
26 February 2026
4,608 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that succession courts cannot decide land ownership disputes, so an adverse possession claim proceeds despite a prior succession ruling.

What this practically means

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Executive summary

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By a Notice of Motion dated 10th June 2025, the 3rd Defendant sought (i) setting aside of ex parte orders issued on 19th December 2024 restraining him from interfering with the Plaintiff's occupation of one acre of LR Muhito/Gaturia/26, and (ii) striking out or staying of the suit on the ground that the same issues had been conclusively determined in Mukurwe-ini Principal Magistrate's Court Succession Cause No. MCSUCC/E049/2024, where the Plaintiff's Summons for Revocation of Grant was dismissed by a ruling delivered on 14th March 2025. Counsel for the 3rd Defendant invoked Section 7 of the Civil Procedure Act on res judicata, the duty of full and frank disclosure in ex parte applications, and Order 2 Rule 15 on striking out. The Plaintiff opposed, contending that this suit is founded on adverse possession under Order 37 Rule 7 and Section 38 of the Limitation of Actions Act - a distinct cause of action - and that full disclosure of the Succession Cause had been made. The Court framed two issues: whether the ex parte orders should be set aside, and whether the suit should be struck out. It found that the Succession Cause concerned revocation of a grant and redistribution, not adverse possession; that the questions were not directly and substantially in issue in the former suit; and that the Succession Court, whose mandate is limited to distribution of the estate, lacked jurisdiction over adverse possession claims, which lie exclusively in the Environment and Land Court. The application to set aside the ex parte orders was also premature, awaiting inter partes determination of the application dated 18th December 2024. The application was dismissed with costs to the Plaintiff/Respondent.

Questions the Court framed

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

  1. 1.Whether the temporary ex parte orders issued on 19th December 2024 should be set aside, vacated and/or discharged.
  2. 2.Whether the suit against the 3rd Respondent should be struck out in light of Mukurwe-ini Principal Magistrates Court Succession Cause No. MCSUCC/E049/2024.

Key legal issues

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01

Whether the ex parte orders of 19th December 2024 should be set aside under Order 40 Rule 7 and Order 51 Rule 15 of the Civil Procedure Rules

Holding

The application to set aside was declined; the question of confirming or discharging the temporary orders should await the inter partes hearing of the application dated 18th December 2024.

Reasoning

The orders of 19th December 2024 were temporary, issued pending inter partes hearing of the application dated 18th December 2024. Full disclosure of the Mukurwe-ini Succession Cause and the certificate of confirmation of grant was made in the supporting affidavit, defeating the non-disclosure complaint. There were conflicting versions of occupation of the one acre, and the inter partes application - which had already been served, responded to and directed to submissions - should determine whether to confirm or discharge the orders. The present application did not establish sufficient cause to set them aside.

p. 6
02

Whether the present suit is res judicata in light of Mukurwe-ini Principal Magistrate's Court Succession Cause No. MCSUCC/E049/2024

Holding

The suit is not res judicata; the issues were not directly and substantially in issue in the Succession Cause and that court lacked jurisdiction over adverse possession claims.

Reasoning

Applying Section 7 of the Civil Procedure Act and the Supreme Court's conditions in Communications Commission of Kenya v Royal Media Services, the Court found the substantive prayer in the Succession Cause was revocation of a confirmed grant and redistribution, not occupation or acquisition of land by adverse possession. The Succession Court held the Plaintiff was not a beneficiary and her purchase was an illegality with refund as her remedy. Moreover, the Magistrates' Court sitting as a Succession Court was not competent to determine adverse possession, injunction and inhibition claims, which belong to the Environment and Land Court under Article 162(2)(b).

p. 7
03

Whether the suit should be struck out under Order 2 Rule 15 as an abuse of court process

Holding

Striking out was refused because the suit is founded on a distinct cause of action (adverse possession under Order 37 Rule 7 and Section 38 of the Limitation of Actions Act) outside the Succession Cause.

Reasoning

The Plaintiff instituted this suit by Originating Summons under Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act claiming adverse possession since 1992, whereas the Mukurwe-ini proceedings were a Succession Cause seeking revocation of a grant under the Law of Succession Act. The two proceedings involved different causes of action and different jurisdictions. Authorities of Musyoka J confirm that probate courts cannot determine ownership or third-party disputes, so no abuse of process arose.

Legal principles established

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  • A Succession Court's mandate is limited to distribution of the estate and does not extend to determining questions of ownership, adverse possession or third-party disputes over estate property
  • Claims for adverse possession fall within the exclusive jurisdiction of the Environment and Land Court, to the exclusion of the Magistrates' Courts

Court orders

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  1. 1.The application dated 10th June 2025 lacks merit and is dismissed with costs to the Respondent.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Sections 13(1) and (2) of the Environment and Land Court Act No. 19 of 2011

Relief refused

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Setting aside, vacating and/or discharging the ex parte orders of 19th December 2024

The Court found the applicant had not established sufficient cause and that the question should await inter partes determination of the application dated 18th December 2024

p. 6

Striking out or staying the suit against the 3rd Respondent as res judicata

The matters in issue in the Succession Cause were not directly and substantially in issue in this suit, and the Succession Court was not competent to determine adverse possession claims

p. 9

Costs of the application to the 3rd Defendant/Applicant

The application was dismissed with costs awarded to the Respondent instead

p. 9

Costs

The application dated 10th June 2025 is dismissed with costs to the Respondent.

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 final order of the court is that the application dated 10th June 2025 lacks merit and is dismissed with costs to the Respondent.
p. 9disposition - dismissal of the 3rd Defendant's application
From the foregoing, it is clear that the matters in issue in the present suit were not directly and substantially in issue in Mukurwe-ini Succession Cause E049 of 2024.
p. 7res judicata not established
the hearing and determination of matters of adverse possession was specifically limited to the Environment and Land Court to the exclusion of the Magistrates' Court.
p. 8exclusive jurisdiction of the ELC over adverse possession claims
The primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the court’s work would be complete.
p. 9limits of probate court jurisdiction
the Court is satisfied that the Applicant herein has not established suficient cause to warrant setting aside the orders issued on 19th December 2024.
p. 6refusal to set aside ex parte injunction

Issues in the judgment

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minor

The judgment inconsistently dates the Summons for Revocation of Grant - the 3rd Defendant's affidavit says 16th October 2024 while the Court's analysis refers to a Summons dated 25th September 2024

minor

The judgment inconsistently dates the Mukurwe-ini Succession Cause, referring at one point to 'E049 of 2023' and elsewhere to E049 of 2024

minor

Text appears garbled/repeated in paragraph 46, where Article 50(1) wording is erroneously interpolated into the discussion of Article 162(2)(b)

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, "Karobere v Mutu & 2 others (Environment and Land Case E019 of 2024) [2026] KEELC 1947 (KLR)", Case Analysis (2026). Notice of Motion dated 10th June 2025 in an Originating Summons dated 18th December 2024 (adverse possession of 1 acre out of LR Muhito/Gaturia/26). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1947/eng@2026-02-26

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