Kebande v Arasa (Enviromental and Land Originating Summons E004 of 2022) [2025] KEELC 868 (KLR)

The court held the claim was one of adverse possession, not illegal acquisition of title, so it proceeded on the basis that the defendant held legal title. The plaintiff had to prove possession nec vi, nec clam, nec precario for 12 continuous years under the burden in section 107(1) of the Evidence Act. The evidence was one person's word against the other: the plaintiff relied on photographs of rental houses which the defendant said were on adjacent parcel 1987, while the defendant showed her own house with a tenant. Only a surveyor's report could have located the developments on the suit land, and the plaintiff's late application to adduce one was dismissed for trying to fill gaps after closing his case.

Although the plaintiff pressed that the defendant and her predecessors had no entitlement to the ancestral land, the court observed that what was before it was an originating summons for adverse possession. A claim of adverse possession presupposes that legal title is held by another; whether that title was legally or illegally acquired was not the question framed by the pleadings, and the court therefore declined to make any finding on the legality of the chain of registrations dating back to 1973.

After the defendant's case closed and submissions were invited, the plaintiff sought to reopen his case to introduce a surveyor's report that could have located his developments on the suit land. The court dismissed the application, holding that the discretion to allow additional evidence after closure of a hearing is not meant to allow a party to fill gaps in its own case that it created by electing not to produce available evidence.