Muchomba & 2 others v Kirugura (Land Case Appeal E009 of 2023) [2026] KEELC 5319 (KLR)
The bottom line
#The Environment and Land Court dismissed the appeal, confirming that adverse possession claims must be filed in the right court and pleaded from the start.
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 erred in failing to find that the appellants had made out a tenable case and proved that they had acquired ownership of the suit land through adverse possession by dint of the provisions of the Limitation of Actions Act
- 2.Whether the trial court erred in failing to find that the appellants had made out a tenable case and proved that they had acquired ownership of the suit land from the respondent by dint of the doctrine of constructive trust
- 3.Whether the respondent made out a case for the injunctive order that was sought in the primary suit
Key legal issues
#Whether the appellants proved acquisition of the suit land by adverse possession
The trial court did not err; it lacked jurisdiction over adverse possession claims and the appellants wished the jurisdiction question away instead of moving the ELC under Section 38 of the Limitation of Actions Act.
Adverse possession is legislated in Sections 7 and 17 of the Limitation of Actions Act, and declaratory or vesting orders must be sought in the Environment and Land Court under Section 38. The Court of Appeal in Sugawara v Kiruti held that magistrate courts lack jurisdiction over adverse possession claims. The respondent had pleaded the jurisdiction defect, yet the appellants took no steps to place their claim before a competent court. The trial court's handling of the issue was therefore unimpeachable.
Whether the appellants acquired the suit land by constructive trust
The trial court did not err; constructive trust was never pleaded by the appellants before the trial court and was raised for the first time as a ground of appeal.
A review of the pleadings showed the appellants never pleaded constructive trust nor raised it in their trial submissions; they introduced it only through the memorandum of appeal. Citing the Supreme Court in Raila Amolo Odinga v IEBC, parties are bound by their pleadings and evidence cannot be considered in the absence of pleadings. An issue not pleaded was not before the trial court, so its failure to determine it was not an error.
Whether the respondent proved entitlement to a permanent injunction
Yes; the respondent was the adjudicated and registered owner, the fraud allegations were unproved, and the injunction issued was properly granted.
The respondent demonstrated he was the adjudicated and registered proprietor of the suit land. The appellants alleged the adjudication was fraudulent but established no element of fraud and offered no satisfactory explanation for ignoring the redress mechanisms under the land adjudication laws. Their adverse possession plea was lodged in a court without jurisdiction. The court was satisfied the respondent was entitled to the protection of Article 40 of the Constitution and Sections 24, 25 and 26 of the Land Registration Act.
Legal principles established
#- A magistrate's court lacks jurisdiction to entertain claims of adverse possession; such claims require vesting orders under Section 38 of the Limitation of Actions Act in the Environment and Land Court
- A first appellate court must re-evaluate the whole evidence and arrive at its own independent conclusions
- Parties are bound by their pleadings; a court cannot determine an issue not pleaded
- A registered owner loses title to a trespasser in unchallenged possession for an uninterrupted period of 12 years
- There could be no adverse possession prior to or during land adjudication
Court orders
#- 1.The appeal is rejected and dismissed for lack of merit
- 2.The appellants shall bear costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court at Marimanti
- Marimanti PMC E & L Case No. E012 of 2020
- Jurisdiction invoked
- First appeal to the Environment and Land Court under the Environment and Land Court Act against the judgment of the Principal Magistrate's Court at Marimanti
Relief refused
#Order allowing the appeal and setting aside the judgment of the lower court
The appellants pleaded adverse possession before a court without jurisdiction to entertain it and never pleaded constructive trust; the respondent proved his claim
Costs
The appellants shall bear costs of the 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.
The appeal is rejected and dismissed for lack of merit. The appellants shall bear costs of the appeal.
made a binding pronouncement to the effect that a magistrate Court does not have jurisdiction to entertain claims of adverse possession
it is neither desirable nor permissible for a court to frame an issue not arising on pleadings
There could not have been adverse possession prior to or during land adjudication.
the respondent properly proved that he was entitled to the protection afforded to him by Article 40 of the Constitution and Sections 24, 25 and 26 of the Land Registration Act
Issues in the judgment
#The name of the respondent (plaintiff in the trial court) is never stated anywhere in the judgment, so parties are identified only by role
Dates of delivery of judgment conflict: the header says 17th August 2026 while the trial court proceedings and appeal chronology reference submissions dated 1/10/2025 and 4/10/2025, and the judgment recites an appeal filed in 2023 against a 23/11/2023 decision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muchomba & 2 others v Kirugura (Land Case Appeal E009 of 2023) [2026] KEELC 5319 (KLR)", Case Analysis (2026). Chuka ELC Case No. E009 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5319/eng@2026-08-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.