REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT BUSIA
ELC CIVIL APPEAL NO. 3AA OF 2020
ERIC ADOME …………………….………….….……. 1ST APPELLANT
DAVID ADOME ……………………..………………… 2ND APPELLANT
= VERSUS =
TOM OWUOR KOBE ………………………...…... 1ST RESPONDENT
LEONIDA OGUTU …………………………….…... 2ND RESPONDENT
(Being an appeal from the Ruling of HON L. AMBASI CHIEF MAGISTRATE delivered on 27th February 2020 in Busia CMC ELC Case NO 77 of 2019)
J U D G E M E N T
1. The Appellants have appealed against the Ruling of the Honourable Chief Magistrate delivered on 27.2.2020 in BUSIA CMC ELC Case NO 77 OF 2019 TOM OWUOR KOBE and ANOTHER VS ERIC ADOME & ANOTHER on the following grounds:
1) The Learned Trial Magistrate erred in Law in holding that the Appellants had no Locus Standi in this suit, contrary to the statutory provisions of the rights of A Registered Proprietor to land.
2) The Learned Trial Magistrate erred in Law in arriving at a decision which did not determine the issue of proprietorship of the suit property, thus leaving the parties in darkness.
2. By their plaint dated 24.6.2019, the Plaintiffs sought the following orders against the Defendants:
a) An order of permanent injunction restraining the Defendants by themselves, their servants, workers, agents, or any other person claiming through them from interfering with the Plaintiffs’ free use of L.R NOS BUSIA MUNICIPALITY/135.
b) An order compelling the Defendants to sub-divide the property and transfer half of it comprising their 2 shops to the Plaintiffs, ALTERNATIVELY an order compelling the Defendants to compensate the Plaintiffs to the current market value of a half of L.R NO BUSIA MUNICIPALITY/135.
c) Costs of this suit and interest.
d) Any other relief this Honourable Court may deem just and fit to grant.
3. In a joint statement of defence and counter-claim, the Defendants south the following orders against the Plaintiffs in their counterclaim:
a) Dismissal of the Plaintiffs’ suit with costs.
b) Mesne profits in terms of paragraphs 6 above.
c) Interest on (b) at Court rates
d) Costs.
4. The Defendants also filed a notice of Preliminary Objection dated 28.01.2026 on the grounds:
a) That the Plaintiffs lacked the locus standi to institute the suit.
b) That the suit is time barred.
5. The learned magistrate heard arguments on the Notice of Preliminary Objection and delivered her ruling on 27.2.2020. It is against this ruling that the Defendants have appealed.
6. The Plaintiffs’ suit and the counterclaim were both dismissed on the basis that the Plaintiffs lacked the locus standi and that the suit was filed out of time and without leave.
7. It is important to note that the Plaintiffs in the lower Court have not appealed against the learned magistrate’s orders and findings that they had no locus standi to bring the suit that they did and also that their suit was time barred.
8. The learned magistrate while dismissing the Appellants counter-claim stated as follows at page 6 of the judgement:
“The plaint is filed on 24.6.2019. Six years from that date would have been in 1995; while 12 years would have lapsed in 2001. Almost a decade or two later. Thus, without even foregoing into the facts of this case, and in the absence of any averment that leave to file suit out of time, the same is clearly way out of time as provided in the Limitations of Actions Act.
Further to the aforegoing, the Defendants’ claim as contained in the counter-claim must also fail for the same reasons.”
Further at page 7 and 8 of the judgment, the learned magistrate delivered herself as follows:
“In light of the above and taking into account the pleadings, submissions of counsel, the applicable law and precedents, I hereby uphold the preliminary objection and the suit is struck out in its entirety with orders of costs to the Defendants. The, counter claim is also dismissed with no orders as to costs.”
9. It is apparent that the counter claim and the suit were both dismissed for similar reasons. The Plaintiffs’ case was dismissed firstly on the basis that the Plaintiffs did not have the locus standi to bring the suit as they were not parties to the sale agreement giving rise to the suit and neither had they obtained letters of administration for the Estate of any of the parties to the sale agreement. The Defendants in the lower Court had counter claimed against the Plaintiffs for mesne profits and orders of eviction. Under Section 2 of the Civil Procedure Act, mesne profits in relation to property, means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but does not include profits due to improvements made by the person in wrongful possession.
10. The issue of whether or not the Plaintiffs were in wrongful possession of the suit premises and whether therefore they were liable to pay mesne profits could not have been determined by way of a Preliminary Objection. This is more so considering the content of paragraphs 2 and 3 of the reply to defence and defence to counter claim where it is stated:
2: “The Plaintiffs contend that the Defendants are not entitled to any remedy or relief in line with paragraphs 7 and 8 of the counter claim, the contents whereof are denied in toto and the Defendants put in strict proof.”
3: “The Plaintiffs further contend that the Defendants counter claim is vague and without merit and the same ought to be dismissed with costs.”
11. The judgment of the learned Court did not interrogate the Defendants’ capacity or lack thereof to bring the claim and in my view, the Court could not merely state that because the Plaintiffs did not have capacity to bring the suit, the Defendants also lacked the locus standi to sue the Plaintiffs. The Plaintiffs did not require to be related in any manner to the parties in the original sale agreement to enable the Defendants to make a claim of mesne profits and eviction against them, precisely so because the Defendants’ counter claim is based on the wrongful occupation of the suit land by the Plaintiffs.
12. It is also correct to state that the counter claim was dismissed on the basis that it was time barred. The issues surrounding when the land was allegedly purchased and when the Plaintiffs’ entered into the land if at all they did, are all matters of fact which the Court could not have determined on the basis of a preliminary objection. I also do not find the ruling of the learned magistrate to have addressed this issue of limitation directly against the Defendants’ claim and what particularly were the challenges of such a claim.
13. I am of the view therefore, that the learned magistrate erred in dismissing the Applicants’ counter claim in the manner that she did and I proceed to allow the appeal by the Appellants. The learned magistrate ought to have allowed the Defendants counter claim to proceed for hearing even after dismissing the Plaintiffs’ case. In this regard, Order 7 Rule 13 of the Civil Procedure Rules provides as follows:
“If, in any case in which the Defendant sets up a counterclaim the suit of the Plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.”
14. In view of the foregoing findings, I dispose of the appeal by making the following orders:
a) That the order dismissing the Appellants’’ counter claim is hereby set aside.
b) That the Appellants’ counter claim in the lower Court will be heard and determined by a magistrate other than Hon. L. Ambasi Chief Magistrate.
c) The Appellants will have the costs of this appeal.
C. MUGAMBI
JUDGE
9TH JULY 2026
Judgment dated, signed and delivered in open Court on this 9th day of July 2026.
C. MUGAMBI
JUDGE
9TH JULY 2026
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