Amollo & 2 others v Obetto & 2 others (Environment and Land Appeal E003 of 2025) [2026] KEELC 3954 (KLR)
The bottom line
#Magistrates' courts in Kenya cannot decide adverse possession claims, and land sold without succession authority can be void.
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 trial court had jurisdiction to hear and determine the claim for adverse possession
- 2.Whether the Plaintiffs/Respondents proved the claim for adverse possession
- 3.Whether having made a finding that the Appellants had succeeded in their counterclaim, the Learned Magistrate erred in law and in fact by awarding the 1st and 2nd Respondents the suit land
- 4.What reliefs ought to issue
- 5.Who bears the costs of this appeal?
Key legal issues
#Jurisdiction of the Magistrates' Court over adverse possession claims
The trial Magistrate had no jurisdiction to determine the claim for adverse possession; only the Environment and Land Court is seized of such claims under Section 38 of the Limitation of Actions Act, and the objection could be raised for the first time on appeal
The Court of Appeal in Sugawara v Kiruti restated that Section 9(a) of the Magistrates' Court Act does not confer jurisdiction over adverse possession claims. The court held the Court of Appeal merely restated the law as it had always been rather than changing it, so the prospective-operation argument fails. Following Desai v Warsama, a judgment without jurisdiction is void, and a jurisdictional defect goes to the root of the proceedings and can be raised at any stage, even on appeal.
Validity of the sale agreements over the deceased's land and intermeddling
The two sale agreements over parcel Siya/Got Agulu/940, executed while the land was registered in the name of a deceased person with no grant of representation, were illegal ab initio and unenforceable; the subdivisions and resultant titles were properly cancelled
Section 45 of the Law of Succession Act prohibits dealing with a deceased's free property without authority. Authorities relied on hold that an agreement to sell land registered in a deceased's name without a grant is void for all purposes and that contracts contravening a statute are illegal ab initio. Evidence showed the vendors lacked authority, supporting rectification and cancellation of the titles under Section 80 of the Land Registration Act.
Counterclaim and the purchaser limb of the claim
The claim as bona fide purchasers was not allowed by the trial court, which rested its decision on adverse possession alone; consequently the Appellants' counterclaim could not be sustained except on the jurisdictional ground
The trial court expressly concluded that the Plaintiffs proved adverse possession and not the sale agreements, so its analysis was largely silent on the purchaser limb. Since the adverse possession finding fell away for want of jurisdiction, the counterclaim's challenge survived only to that extent, and the Appellants' contention that the counterclaim should have been upheld could not stand on the trial court's actual findings.
Interim protection of the Plaintiffs' occupation
Because the Plaintiffs are in occupation pursuant to the purported sale, they may assert claims as possible creditors in the succession proceedings, and the status quo as to their occupation is to be maintained until confirmation of the grant
The court noted the Plaintiffs remain in occupation of part of the suit property by dint of the purported sale and occupation. Rather than ordering eviction, it granted a time-bound status quo order preserving their occupation pending confirmation and distribution of the deceased's estate, within which they may pursue creditor claims.
Legal principles established
#- It is only the Environment and Land Court, and not the Magistrates' Court, that has jurisdiction to hear and determine claims for adverse possession under Sections 37 and 38 of the Limitation of Actions Act
- A judgment rendered without jurisdiction is void and cannot be cured by the passage of time or the acquiescence of the parties
- Transactions disposing of a deceased person's property without a grant or authority amount to intermeddling and are null and void
- A court may order rectification of the register where a registration was obtained or made by fraud or mistake
- The duty of a first appellate court is to re-evaluate, re-assess and re-analyse the evidence on record and draw its own conclusions while making allowance for not having seen or heard the witnesses
Court orders
#- 1.The Appeal be and is hereby allowed to the extent that the claim presented by the 1st and 2nd Respondent be dismissed
- 2.An order directing the Land Registrar Bondo to cancel titles over parcels No. Siya/Got Agulu/1629 and 1630 in the names of Stephen Odhiambo Amollo & Joshua Omondi Amollo and Manasses John Obetto & Eagle - Eyed Investigators and revert them to the original land being No. Siya/Got Agulu/940 in the name of the late Booker Amollo Omondi
- 3.An order of status quo in terms of the Plaintiffs' occupation on the ground pending confirmation of grant and distribution of the estate of the late Booker Amollo Omondi with regard to parcel No. Siya/Got Agulu/940, terminating on the date the grant is confirmed
- 4.The parties to bear their own costs of this 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 (PMCELCC)
- PMCELCC No. 025 of 2023
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Magistrates' Court in environment and land matters; the judgment relies on Section 78 of the Civil Procedure Act and addresses jurisdiction under Article 162(2)(b) of the Constitution, Section 13 of the Environment and Land Court Act, Section 9(a) of the Magistrates' Court Act and Sections 37 and 38 of the Limitation of Actions Act
Relief refused
#Claim for adverse possession by the 1st and 2nd Respondents as upheld by the trial Magistrate
The trial Magistrate lacked jurisdiction under Section 38 of the Limitation of Actions Act to entertain a claim for adverse possession; a judgment without jurisdiction is void and cannot be saved by the passage of time or the parties' silence
Orders compelling the defendants to commence succession proceedings to transfer the suit land to the Plaintiffs
These orders collapsed with the finding that the trial court had no jurisdiction over the adverse possession claim; distribution of a deceased's estate is a matter for the probate court
Appellants' request that the entire judgment be set aside including the cancellation of titles
The subdivision of the deceased's land without succession was illegal; the cancellation of titles was properly founded on rectification of the register under Section 80 of the Land Registration Act
Costs of the appeal and of the lower court to the Appellants
Although costs follow the event, they are discretionary and in the circumstances of the case each party was left to bear its own costs
Costs
Each party to bear their own costs of this appeal (the parties to bear their own costs of 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.
It is the finding of this court that the trial court lacked jurisdiction to determine the claim for adverse possession.
A judgment given without jurisdiction is void; it cannot be sanctified by the passage of time or the silence of the parties.
The Appeal be and is hereby allowed to the extent that the claim presented by the 1st and 2nd Respondent be dismissed.
An order of status quo hereby issues in terms of the Plaintifis occupation on the ground pending the confirmation of grant and distribution of the estate of the late Booker Amollo Omondi with regard to the parcel No. Siya/Got Agulu/940.
That an order is hereby issued directing the Land Registrar Bondo to cancel titles over parcels No. Siya/Got Agulu/1629 and 1630 in the names of Stephen Odhiambo Amollo & Joshua Omondi Amollo and Manasses John Obetto & Eagle - Eyed Investigatorsand be reverted to the original land being No. Siya/Got Agulu/940 in the name of the late Booker Amollo Omondi.
Indeed, transactions founded on intermeddling of deceased’s estates are untenable in law, null and void.
Issues in the judgment
#The appeal's own case number in the Environment and Land Court is not stated anywhere in the judgment; only the lower court case (Bondo PMCELCC No. 025 of 2023) is identified.
The trial court's judgment is described both as delivered on 17/12/2024 and as 'prepared and delivered after the judgement of the Court of Appeal' of 11/10/2024, while the parties also argue the Court of Appeal decision 'came after' the trial judgment; the chronology of the Sugawara decision relative to the trial judgment is internally inconsistent.
The Appellants' names appear as the registered owners of the cancelled titles yet they are also described as having succeeded in their counterclaim at trial; the judgment's characterisation of the counterclaim outcome is not clearly reconciled with its holding that the Plaintiffs' suit failed only on jurisdiction.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amollo & 2 others v Obetto & 2 others (Environment and Land Appeal E003 of 2025) [2026] KEELC 3954 (KLR)", Case Analysis (2026). Not stated in the judgment (first appeal against Bondo Principal Magistrate's Court PMCELCC No. 025 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3954/eng@2026-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.