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ELCAllowedNot stated on the face of the judgment· [2025] KEELC 3188 (KLR)

Chepkwony v Terer (Enviromental and Land Originating Summons E005 of 2023) [2025] KEELC 3188 (KLR)

Environment and Land Court
8 April 2025
AOAntony O. Ombwayo
4,741 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Nakuru court declared a man who openly farmed land since 1994 its rightful owner, stripping the registered titleholder of ownership after 30 years of inaction.

What this practically means

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Executive summary

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The plaintiff, Benard Chepkwony, brought an originating summons against Jonah Kibet Terer seeking a declaration of title by adverse possession over parcel Nakuru/Tinet/Sotik Settlement Scheme/2102, a vesting order, cancellation of the defendant's registration, rectification of the register, issuance of title and costs. He claimed open, continuous and unpermitted occupation and farming since 1994. The defendant, a Government allottee titled in 2005, denied the plaintiff ever occupied the parcel, asserting his own possession from 1997 until 2017, when third parties (Alice Too, Reuben Koech and Edwin Rotich) allegedly evicted him; he obtained eviction orders in Molo MCELC 39 of 2018 and contended the plaintiff actually lives on parcel 2104. The defence relied on section 26 of the Land Registration Act (indefeasibility) and the adverse possession requirements in the Limitation of Actions Act, supported by authorities including Wambugu v Njuguna and Ongwen v Keya. After a site visit by the Deputy Registrar that revealed confusion over parcel numbers, the court found the plaintiff's evidence consistent and proved on a balance of probability that he occupied 2102 openly, continuously, exclusively, actually and non-permissively since 1994. The defendant failed to prove the plaintiff was on 2104, and Alice Too was not called. Applying the five-element test, the court declared the plaintiff owner by adverse possession, issued a vesting order, cancelled the defendant's registration, ordered rectification of the register and issuance of a title to the plaintiff, and awarded costs to the plaintiff. Judgment dated 8 April 2025, delivered by Hon. Justice Antony O. Ombwayo at Nakuru.

Key legal issues

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01

Whether the plaintiff proved adverse possession of parcel 2102

Holding

Yes. The plaintiff proved open, continuous, exclusive, actual and non-permissive possession since 1994, exceeding the 12-year statutory period, and title was declared in his favour.

Reasoning

The court found the plaintiff's evidence consistent and unshaken on cross-examination, supported by photographs of his home. DW3 admitted possession then retracted. The defendant alleged the plaintiff occupied parcel 2104 but did not call a surveyor; Alice Too, alleged to occupy 2102, was not called. The defendant obtained title in 2003/2005 and had until 2017 to sue for eviction but did not, so the claim succeeded.

p. 8
02

Burden of proving the identity of the parcel claimed

Holding

The court held that on the evidence the plaintiff occupied 2102, and the defendant failed to discharge his rebuttal burden of showing the plaintiff was on 2104.

Reasoning

A Deputy Registrar's site visit found confusion over parcel numbers, but the plaintiff consistently asserted occupation of 2102. The defendant contended the plaintiff lived on 2104 yet produced no surveyor or expert evidence to establish the discrepancy. The defendant's own witnesses were inconsistent, with DW3 admitting the plaintiff was in possession of 2102 before changing his evidence.

p. 7

Legal principles established

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  • Adverse possession requires proof of open and notorious, continuous, exclusive, actual and non-permissive possession for the statutory period
  • A title holder must have been dispossessed or discontinued possession for the statutory period for a claimant to acquire title by adverse possession

Court orders

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  1. 1.The plaintiff is declared to have acquired title by adverse possession of the suit land known as Nakuru/Tinet/Sotik/Settlement Scheme/2102
  2. 2.A vesting order is granted on account of adverse possession in respect to parcel land known as Nakuru/Tinet/Sotik Settlement Scheme/2102
  3. 3.The registration of Johan Kibet Terer as proprietor of Nakuru/Sotik/Settlement Scheme/2102 and of any persons deriving title from him be and is hereby cancelled forthwith and the District Land Registrar Nakuru do rectify the register to enter the name of the Plaintiff as registered proprietor in place of the Defendant or anyone deriving title from him
  4. 4.The District Land Registrar upon registering the name of the plaintiff do issue a title to the plaintiff
  5. 5.The costs of the proceedings be borne by the Defendant
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim for title by adverse possession under the Limitation of Actions Act (Cap 22) and the Land Registration Act (No. 3 of 2012)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Chepkwony v Terer (Enviromental and Land Originating Summons E005 of 2023) [2025] KEELC 3188 (KLR)", Case Analysis (2025). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3188/eng@2025-04-08

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