Chepkwony v Lornho Agri-Business East Africa Ltd & another (Enviromental and Land Originating Summons E012 of 2023) [2025] KEELC 3390 (KLR)
The bottom line
#The Eldoret Environment and Land Court dismissed a 23-year land occupier's adverse possession claim because he never fully paid the purchase price, so his occupation stayed permissive.
What this practically means
#Executive summary
#Key legal issues
#Whether adverse possession can arise from an Agreement for Sale
Yes, but only where the purchase price has been paid in full; the Applicant's payments fell short by about KShs. 30,000/-, so time never began to run
The court held that a purchaser allowed into possession is a permissive occupier, and his possession becomes adverse only on completion of payment of the purchase price. The receipts produced totalled KShs. 3,067,000/- against an alleged price of KShs. 3,096,000/-, and no sale agreement was exhibited. Since payment was never completed, the licence to occupy was never terminated and limitation never accrued.
Whether the Applicant met the threshold for adverse possession
The Applicant satisfied openness of possession and the 12-year duration, but failed on the non-permissive element and on proof of the registered title
Photographs showed open development and entry was not by force or stealth. However, because payment was incomplete, occupation remained permissive throughout. Further, no title deed, certificate of official search or other proof of registration in the 2nd Respondent's name was annexed as required by Order 37 Rule 7, so the court could not be sure against whom adverse possession ran.
Whether the pending CMCC suit interrupted the running of time
A suit dismissed for want of prosecution does not stop time from running under the Limitation of Actions Act; the Applicant therefore satisfied the duration requirement
Relying on Kamunge v Waweru and the Lilian Njeri Muranja Mahinda line of authority, the court held that only a suit which is prosecuted interrupts limitation. Eldoret CMCC No. 291 of 2004 lay pending for 11 years and was dismissed for want of prosecution on 14th April 2015, so the parties reverted to their pre-filing position and time continued to run.
Legal principles established
#- Even in an undefended suit or formal proof hearing, the burden remains on the plaintiff to prove the case on a balance of probabilities
- A purchaser's possession becomes adverse only upon full payment of the purchase price; time runs from the date of the last instalment
- Where initial entry is permissive, adverse possession cannot run until the permission is terminated or revoked
- A suit dismissed for want of prosecution does not interrupt the running of time under the Limitation of Actions Act
- An applicant under section 38 LAA must annex a certified extract of title or a certificate of official search showing the registered owner
Court orders
#- 1.The Originating Summons dated 29th May, 2023 is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Section 38(1) of the Limitation of Actions Act (Cap 22) read with Order 37 Rule 7 of the Civil Procedure Rules, invoked by Originating Summons
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chepkwony v Lornho Agri-Business East Africa Ltd & another (Enviromental and Land Originating Summons E012 of 2023) [2025] KEELC 3390 (KLR)", Case Analysis (2025). Originating Summons dated 29th May, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3390/eng@2025-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.