Mathlida Odemba Owino v Juma Duberia
The bottom line
#A Kenyan court threw out a magistrate's land ruling because magistrates cannot decide adverse possession claims—only the Environment and Land Court can.
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 was vested with jurisdiction to determine the Respondent's counterclaim for adverse possession
- 2.Whether the facts and evidence justify the claim for adverse possession and the order of the trial court
- 3.Whether the trial Magistrate failed to consider the Appellant's arguments, pleadings and evidence
- 4.Who bears the costs of the appeal
Key legal issues
#Jurisdiction of Magistrates' Courts over adverse possession claims
Magistrates' Courts lack jurisdiction to adjudicate claims founded on adverse possession; such claims are exclusively for the ELC/High Court under Sections 37 and 38 of the Limitation of Actions Act and Article 162(2)(b)
Section 9(a) of the Magistrates' Courts Act lists matters gazetted magistrates may hear, but adverse possession is not among them. Sections 37 and 38 of the Limitation of Actions Act confer power on the High Court and ELC alone. The Court of Appeal in Pauline Sugawara so clarified, and ELC decisions (Mboya J; Yano J) support the position. A void judgment cannot be cured by re-evaluation of evidence.
Remedy where the trial court lacked jurisdiction over the counterclaim
The proper course was to set aside the trial judgment in its entirety and leave parties to pursue their claims afresh before the ELC, since the plaintiff's claim and counterclaim cannot be severed
The court held that pronouncing on the merits or remaining grounds would breathe life into a void judgment. The plaintiff's claim was properly before the magistrate's court, but the claim and counterclaim share the same subject matter and cannot be severed, so the entire judgment fell with the jurisdictional defect.
Court's power to raise jurisdiction suo motu on appeal
The court may raise a jurisdictional issue on its own motion at any stage, but parties must be accorded an opportunity to be heard
Relying on Kenya Revenue Authority v Hemed, the judge noted the jurisdictional issue was raised neither as a preliminary objection before the trial court nor in the appeal, so she deferred judgment and invited supplementary submissions; only the Respondent complied.
Legal principles established
#- Magistrates' Courts do not have jurisdiction to determine claims of adverse possession, which are reserved to the High Court/ELC under Sections 37 and 38 of the Limitation of Actions Act
- A jurisdictional point may be raised at any stage, including on appeal and by the court suo motu, and parties must be heard on it
- Proceedings and determinations by a court without jurisdiction are nullities
Court orders
#- 1.The Appeal be and is hereby dismissed.
- 2.The Judgment of Hon. E. Tsimonjero, Senior Resident Magistrate delivered on 27th June, 2024 in Ukwala PM ELC No. E045 of 2021 be and is hereby declared a nullity and set aside in its entirety for want of jurisdiction.
- 3.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
- Ukwala Principal Magistrates' Court (ELC)
- ELC No. E045 of 2021
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Sections 13 and 26(3) and (4) of the Environment and Land Court Act; Sections 37 and 38 of the Limitation of Actions Act
Relief refused
#Allowance of the appeal
Although the trial judgment was set aside as a nullity, the appeal itself was dismissed; the court declined to review the merits of the adverse possession finding
Costs of the appeal borne by the Respondent
The jurisdictional defect was not attributable to either party
Costs
Each party 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.
The Magistrates' Courts do not have jurisdiction to determine claims of adverse possession. Therefore, the judgement of Hon Tsimonjero cannot stand.
The Judgment of Hon. E. Tsimonjero, Senior Resident Magistrate delivered on 27th June, 2024 in Ukwala PM ELC No. E045 of 2021 be and is hereby declared a nullity and set aside in its entirety for want of jurisdiction.
The parties to bear their own costs of this appeal.
No court can confer jurisdiction upon itself and where a court assumes jurisdiction and proceeds to hear and determine a matter not within its jurisdiction, the proceedings and the determination are nullities.
It is my considered view that this court should decline to review the merits of the trial court's finding on adverse possession or the remaining grounds of appeal touching on the evaluation of the evidence
Issues in the judgment
#Appeal dismissed yet trial judgment set aside in entirety, effectively granting the appellant's principal relief
Appellant's submissions cite Sections 7 and 13 of the Limitation of Actions Act while the court's analysis rests on Sections 37 and 38
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mathlida Odemba Owino v Juma Duberia", Case Analysis (2026). ELC Appeal No. E019 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6132/eng@2026-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.