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ELCAllowedOriginating Summons dated 22nd May 2023 (amended 18th October 2023)· [2025] KEELC 229 (KLR)

Kuto v Tum (Enviromental and Land Originating Summons E021 of 2023) [2025] KEELC 229 (KLR)

Environment and Land Court
30 January 2025
1,330 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court handed a farmer ownership of land he had openly occupied and farmed for over 40 years, extinguishing the registered owner's title through adverse possession.

What this practically means

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Executive summary

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By an originating summons dated 22nd May 2023 and amended on 18th October 2023, brought under Sections 17 and 38 of the Limitation of Actions Act (Cap 22), the plaintiff sued the defendant, the registered owner of land parcel Nandi/Kipsigak/187, claiming that his title had been extinguished by adverse possession. The plaintiff averred that he bought the suit land from the defendant in 1978, obtained a land control consent (No. 9366 of 23rd March 1978), and has been in open, continuous, peaceful and physical occupation since 1980, farming tea and maize and rearing cattle, nec vi, nec clam and nec precario. The defendant was duly served, as evidenced by an affidavit of service sworn on 11th January 2024, but failed to enter appearance or defend; his case was deemed closed and the suit proceeded as an undefended (formal proof) hearing on 16th September 2024. The plaintiff testified as PW1 and was corroborated by PW2, the assistant chief of Kipsotoi sub-location, who confirmed the plaintiff had lived and farmed the land for over 27 years while the defendant left the area about 40 years ago. Counsel for the plaintiff filed submissions citing the Limitation of Actions Act and adverse possession authorities. Condensing the issues to whether the plaintiff proved the essential ingredients of adverse possession, the court found the claim firm, consistent and cogent and proved on a balance of probabilities. Judgment was entered for the plaintiff in terms of all orders sought, including declarations extinguishing the defendant's title, vesting freehold interest in the plaintiff, and an order to the Land Registrar Nandi County to register the plaintiff as proprietor. It is so ordered.

Key legal issues

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01

Whether the plaintiff proved the essential ingredients of adverse possession

Holding

Yes - the plaintiff entered openly and peacefully in 1978/1980, has continuously cultivated and possessed the land for over 12 years without the defendant's permission, dispossessing the defendant who left the area about 40 years ago

Reasoning

The court applied the Court of Appeal's enunciation of the ingredients of adverse possession in Elijah O.L Opar and Mtana Lewa. PW1 testified he planted tea, reared cattle and grew maize on the land; PW2, the assistant chief for 27 years, corroborated that the plaintiff had lived and farmed there for over 27 years while the defendant left the area about 40 years ago. The land was registered in the defendant's name (PExhibit 2), satisfying the registration requirement. Possession was open, continuous and uninterrupted, hence title was extinguished under Sections 7, 13, 37 and 38 of the Limitation of Actions Act.

p. 3
02

Whether the suit could proceed undefended upon service

Holding

Yes - the defendant was duly served but failed to respond; the defendant's case was deemed closed and the suit proceeded by way of formal proof

Reasoning

The affidavit of service sworn by authorised process server Moses Osundwa Shikanda on 11th January 2024 established service. The defendant nonetheless failed to enter appearance or file a defence, and the defendant's case was deemed closed on 12th November 2024. The court heard the plaintiff's evidence and submissions on a balance of probabilities even in formal proof, per Kirugi v Kabiya.

p. 2

Legal principles established

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  • The ingredients of adverse possession are open, peaceful entry without the owner's permission and uninterrupted possession for at least 12 years dispossessing the owner and extinguishing title
  • In an adverse possession claim the land must first be registered in the name of a person other than the applicant
  • The burden of proof in civil cases, even in formal proof proceedings, is on a balance of probabilities

Court orders

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  1. 1.A declaration that the rights and title of Kipsogon Arap Tum over land parcel No. Nandi/Kipsigak/187 have been extinguished by operation of the law of adverse possession and are statute barred
  2. 2.A declaration that the plaintiff has acquired freehold interest in the suit land by adverse possession for more than 12 years (from 1980)
  3. 3.An order directing the Land Registrar Nandi County to remove the entries relating to the defendant's title and register the plaintiff as the new registered owner of the suit land
  4. 4.An affirmation that the plaintiff took actual and physical possession of the whole suit land, residing and cultivating it since 1980, nec vi, nec clam and nec precario
  5. 5.Costs of the application provided to the plaintiff

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22, Laws of Kenya)Sections 17 and 38
  • Limitation of Actions Act (Cap 22, Laws of Kenya)Sections 7, 13 and 37
  • Land Registration ActSection 28(h)

Cases cited (12)

  • Mtana Lewa-vs-Kahindi Ngala Mwagandi
    (2015) eKLR
  • Great Lakes Transport Company (U) Ltd-versus-Kenya Revenue Authority
    (2009) KLR 720
  • Wambugu-vs-Njuguna
    (1983) KLR 172
  • Elijah O.L Opar-versus-Tobias Odhiambo Abach
    (2019) eKLR
  • Virginia Wanjiku Mwangi-versus-David Mwangi Jotham Kamau
    (2013) eKLR
  • Wilson Kazungu Katana and 101 others-versus-Salim Abdalla Bakshein and another
    (2015) eKLR
  • Githu-versus-Ndeete
    (1984) KLR 776
  • Gatimu Kinguru-versus-Muya Gathangi
    (1976-80) KLR 317
  • Titus Ong'anga Nyachieo-versus-Martin Okioma Nyauma & 3 others
    (2017) eKLR
  • Tayebali Adamji Alibhai-versus-Abdulhussein Adamji Alibhai
    (1938) 5 EACA 1
  • Kimani Ruchine and another-versus-Swift Rutherford company Limited
    (1976-80) 1 KLR 1500
  • Kirugi & another-vs-Kabiya & 3 others
    (1987) KLR 347
Jurisdiction invoked
Sections 17 and 38 of the Limitation of Actions Act (Cap 22, Laws of Kenya) - originating summons for adverse possession

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kuto v Tum (Enviromental and Land Originating Summons E021 of 2023) [2025] KEELC 229 (KLR)", Case Analysis (2025). Originating Summons dated 22nd May 2023 (amended 18th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/229/eng@2025-01-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.