Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedOriginating Summons dated 20th May 2020 (amended 15th November 2021)· [2025] KEELC 1227 (KLR)

Chobe (Suing as the Administrator Ad Litem of the Estate of Kipchobe Arap Murgor - Deceased) v Mibei & another (Environment & Land Case 33 of 2020) [2025] KEELC 1227 (KLR)

Environment and Land Court
13 March 2025
12,063 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~48 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Kericho dismissed a man's claim to own land he had occupied for decades, because he couldn't prove exactly which portion he occupied exclusively.

What this practically means

#

Executive summary

#
The Plaintiff, administrator of the estate of his late father Kipchobe Arap Murgor, brought an Originating Summons under Sections 37 and 38 of the Limitation of Actions Act claiming that his family had occupied LR Nakuru/Olenguruone/Amalo/310 (2.6 Ha) since 1958, that the 2nd Defendant's title had been extinguished by adverse possession, and seeking vesting orders and registration in his name. The 1st Defendant resisted, claiming he purchased the parcel from the 2nd Defendant in 1996 for Kshs. 150,000/=, took possession, constructed houses and fenced it, and that the Plaintiff and his family had forcefully encroached from about 1997. The 2nd Defendant did not enter appearance despite substituted service. The court framed two issues: whether the Plaintiff acquired the suit parcel by adverse possession, and costs. It held that adverse possession cannot run against unregistered land, so the claimed occupation from 1958 to registration in 1978 was excluded. It further found that the Plaintiff failed to identify the specific portion of the parcel in his exclusive possession; the 1st Defendant's uncontroverted evidence of construction on the land showed the Plaintiff occupied only a portion, and the joint surveyor's report quantifying occupation had been set aside by the parties' consent, which worked against the Plaintiff. Records of a 1998 boundary dispute did not involve the Plaintiff or his father. The court also noted that the fact of purchase or completion of payment was immaterial to the Plaintiff's claim, and that the 1st Defendant, having filed no counterclaim, could not sustain a claim for trespass damages. The suit was dismissed with costs to the 1st Defendant.

Key legal issues

#
01

Whether the Plaintiff acquired LR Nakuru/Olenguruone/Amalo/310 by adverse possession

Holding

No. Adverse possession cannot accrue against unregistered land, so the 1958-1978 period is excluded; and the Plaintiff failed to identify the specific portion of the suit land in his exclusive possession, especially after the joint surveyor's report was excluded by consent.

Reasoning

The suit parcel was only registered in 1978 in favour of the 2nd Defendant, so the claimed occupation from 1958 cannot count toward the statutory twelve years. Further, the 1st Defendant's uncontroverted evidence showed he constructed houses on part of the land, meaning the Plaintiff occupied only a portion. Having by consent set aside the order adopting the joint survey report which alone quantified the acreages, the Plaintiff could not prove the specific portion in his exclusive possession, as required by Ogak v Auma and Githu v Ndele.

p. 22
02

Whether the boundary dispute records implicated the Plaintiff's family in 1997-1998

Holding

No. The Boundary Dispute Summons and the Land Registrar's letter of 1998 named Kibehome Murgor and Kipkorir A. Cheptalam, not the Plaintiff or his father, so the alleged 1997/1998 dispute did not involve the Plaintiff.

Reasoning

The 1st Defendant's evidence was that he was in dispute with the Plaintiff in 1997-1998, yet the documents he produced to prove interruption of possession did not mention the Plaintiff or his deceased father. The court therefore deduced that any dispute in that period did not involve the Plaintiff or the estate of his father.

p. 21
03

Costs of the suit

Holding

Costs awarded to the 1st Defendant as the successful party, following the general rule under Section 27 of the Civil Procedure Act that costs follow the event.

Reasoning

The court applied the general rule that a successful party should ordinarily be awarded costs unless there is good reason to direct otherwise. The Plaintiff's suit having been dismissed, costs went to the 1st Defendant.

p. 22

Legal principles established

#
  • Adverse possession cannot begin to run against land that is unregistered; time only runs from registration of the land in the name of another
  • The burden is on the claimant of adverse possession to prove the specific identifiable portion of land in his exclusive possession
  • In an adverse possession claim, whether the purchaser of the land completed payment or obtained transfer is immaterial
  • Without a counterclaim, a claim for trespass and damages for trespass cannot be sustained

Court orders

#
  1. 1.Suit dismissed with costs to the 1st Defendant

Authorities

#

Legislation

  • Limitation of Actions Act (Cap 22)Sections 37, 38(1) & (2), 7, 13, 41
  • Civil Procedure RulesOrder 37 Rule 3
  • Evidence ActSections 107, 112
  • Civil Procedure Act (Cap 21)Section 27
  • Land Registration ActSection 26
  • Trespass ActSection 3(1)
  • Halsbury's Laws of EnglandVolume 17, paragraphs 13 & 14

Cases cited (20)

  • Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & another
    [2005] 1EA 334
  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • Wambugu v Njuguna
    [1983] KLR 172
  • Mbira v Gachuhi
    [2002] 1 EALR 137
  • Trust Bank Limited vs Paramount Universal Bank Limited & 2 Others
    [2009] eKLR
  • Dina Management Limited vs County Government of Mombasa & 5 Others
    (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR)
  • Nyakwana vs Cleophas Bwana Ongaro
    [2015] eKLR
  • Ongwen & another v Kenya & another
    (Environment & Land Case E027 of 2021) [2023] KEELC 279 (KLR)
  • John Eutick vs Nathan Carrington & others
  • M'Tuamwari v Kenya Power and Lighting Company
    (Environment & Land Case E023 of 2021) [2023] KEELC 21498 (KLR)
  • Park Towers Ltd vs John Mithamo Njika
    [2014] eKLR
  • Philip Aluchio vs Crispinus Ngayo
    [2014] eKLR
  • Hosea Nyandika Mosagwe & 2 Others vs County Government of Nyamira
    [2021] eKLR
  • Daniel Gikundi M'Impwi & 7 others v Charles Mutura Njau
    [2019] eKLR
  • Erick Chepkwony Aengwo Vs Jonathan Rutto Kibiesang
    ELC 743 of 2012
  • Ogak v Auma & another
    (Environment & Land Case 11 of 2021) [2023] KEELC 65 (KLR)
  • Githu v Ndele
    [1984] KLR 776
  • Gerishon Muindi Baruthi v Willays Gatinku Mukobwa & another
    CA No 98 of 1998
  • Charles Mwangi Kiiru & 2 others v Boniface Maina Gichomo & another
    [2021] eKLR
Jurisdiction invoked
Sections 37 & 38 of the Limitation of Actions Act and Order 37 Rule 3 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Chobe (Suing as the Administrator Ad Litem of the Estate of Kipchobe Arap Murgor - Deceased) v Mibei & another (Environment & Land Case 33 of 2020) [2025] KEELC 1227 (KLR)", Case Analysis (2025). Originating Summons dated 20th May 2020 (amended 15th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1227/eng@2025-03-13

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