Serem v Serem
The bottom line
#A Kericho court ruled that a family member who openly occupied 3.8 acres of land for over 12 years owns it, despite the registered owner's title.
What this practically means
#Executive summary
#Key legal issues
#Res judicata on the issue of fraud
The Defendant's claim of fraudulent transfer of the suit land to Bernard Serem was res judicata, having been heard and dismissed in ELC Case No. 42 of 2014 (Paulo Kipserem A Chepkwony v Annah Chebet Serem)
The court applied the test of sameness of parties, title/claim, concurrence of jurisdiction and finality. The previous suit, between the same parties litigating under the same title, had fully tried the fraud allegation and dismissed it; that decision had not been overturned on appeal. The Defendant could not evade the doctrine by re-litigating the same issue in a counterclaim.
Whether the suit property was family property forming part of the estate of the late Kipserem Chepkwony
No - the Plaintiff, registered through transmission, was the absolute and indefeasible owner under Section 26 of the Land Registration Act
Since fraud in the registration to Bernard had been negatived in the previous suit, the subsequent transmission to the Plaintiff was lawful. Her title could only be challenged on the grounds in Section 26(1)(a) and (b), both of which had been dealt with and not proved in the earlier suit.
Whether the Defendant was entitled to 3.8 acres by adverse possession
Yes - the Defendant proved actual, open, exclusive and hostile possession of 3.8 acres for well over 12 years, extinguishing the Plaintiff's title to that portion
The Defendant was born on the land, occupied 3.8 acres openly and exclusively, built a permanent home and planted tea bushes over 20 years old. The Plaintiff admitted he had been on the land since 1984. The possession was nec vi, nec clam, nec precario; upon expiry of 12 years the proprietor's title stood extinguished and Section 38 permits registration of the adverse possessor.
Whether eviction and permanent injunction should issue
No - the suit was dismissed because the Defendant's adverse possession defeated the claim for eviction
Having found that the Defendant's occupation of 3.8 acres was adverse and had extinguished the Plaintiff's title to that portion, the Plaintiff could not obtain eviction or an injunction over land in which she no longer held title.
Legal principles established
#- A claim for adverse possession may properly be raised in a defence and counterclaim to an action for eviction; it need not be brought by originating summons
- The combined effect of sections 7, 13 and 17 of the Limitation of Actions Act extinguishes the proprietor's title at the expiry of 12 years of adverse possession
- An issue of fraud in the transfer of land already heard and finally decided between the same parties is res judicata and cannot be relitigated
Court orders
#- 1.The Plaintiff's suit is dismissed with no costs as these are family members
- 2.The Defendant's counterclaim that he is entitled to a share of 3.8 acres comprised in the subject property being No. Kericho/Kipchimchim/756 succeeds as prayed
- 3.The Plaintiff shall transfer a portion measuring 3.8 acres comprised in the subject property No. Kericho/Kipchimchim/756 to the Defendant at the latter's expense within 30 days from the date hereof failing which the Deputy Registrar of this court shall execute on behalf of the Defendant all the necessary transfer documents
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to title and possession of land (Article 162(2)(b) of the Constitution, as the court is the Environment and Land Court at Kericho)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwangi v Vision Afrika Housing Co-operative Society Ltd & 3 others (Land Case Appeal 21 of 2024) [2026] KEELC 4018 (KLR)[2026] KEELC 4018 (KLR)2 Jul 2026
- Elgon House (2010) Ltd v Meya Agri Traders Limited (Land Case 121 of 2018) [2026] KEELC 911 (KLR)[2026] KEELC 911 (KLR)20 Feb 2026
- Macharia v Muturi (Environment and Land Appeal E009 of 2025) (Environment and Land) [2026] KEELC 917 (KLR)[2026] KEELC 917 (KLR)19 Feb 2026
- Atebe v County Government of Nairobi & 4 others (Environment and Land Judicial Review Case E042 of 2025) [2026] KEELC 904 (KLR)[2026] KEELC 904 (KLR)16 Feb 2026
- Langat (Suing on Behalf of the Estate of the Late Sophia Chelimo Kerio) v Cheruiyot & 2 others (Environment & Land Case E011 of 2022) [2024] KEELC 3402 (KLR)[2024] KEELC 3402 (KLR)25 Apr 2024
Cite this brief
#Cite this brief
Caselaw, "Serem v Serem", Case Analysis (2023). Environment and Land Case Civil Suit E007 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21693/eng@2023-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.