Kerario v Seria (Sued as the Representative of Seria Boroye Sinda - Deceased) (Enviromental and Land Originating Summons E028 of 2021) [2025] KEELC 3570 (KLR)
The bottom line
#A Kenyan court gave a buyer full ownership of 7.5 acres he occupied for over 12 years, because the registered owner never challenged him or showed up to testify.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff acquired the 7 1/2 acres of Bukira/Buisaboka/77 by adverse possession
Yes - the Plaintiff proved open, uninterrupted, quiet and continuous occupation adverse to the registered owner since 2000, exceeding the 12-year statutory period, so his title by adverse possession was declared and the Defendant's title extinguished
The Plaintiff purchased the land in 2000 from the Defendant's father, paid the full purchase price, and took open possession which he maintained without permission and without any hostility or court process against him for over 12 years. Guided by Kweyu v Omutut, the court found the elements of adverse possession proved on a balance of probabilities. The Defendant did not testify, so his allegations of intermeddling and hostility were unproved.
Burden of proof where a party files pleadings but does not testify
Unproved pleadings are mere allegations; the Defendant, having not testified, failed to prove the allegations in his Replying Affidavit, and the suit proceeded as formal proof with the Plaintiff still required to prove his case on a balance of probabilities
Relying on Section 107 of the Evidence Act and Netah Njoki Kamau v Eliud Mburu Mwaniki, the court held that a Replying Affidavit not adopted as evidence and not tested by cross-examination remains a mere allegation. The Defendant did not testify, so his claims of intermeddling and hostile occupation failed, and the case proceeded as though formal proof.
Legal principles established
#- Where a party files pleadings but does not testify or adduce evidence in support of them, they remain mere allegations which the Court cannot rely on
- Adverse possession requires possession that is peaceful, open, continuous, hostile and continued over the statutory period (12 years), proved on a balance of probabilities
Court orders
#- 1.A declaration that the rights of the defendant to recover the portion of land being part of Bukira/Buisaboka/77 measuring 7 1/2 acres occupied by the Plaintiff and his title thereto are extinguished, and the Plaintiff has acquired the portion by adverse possession
- 2.The suit land to be surveyed, at the cost of the Plaintiff, and subdivided forthwith to excise the portion measuring approximately 7 1/2 acres and the said portion be transferred in the name of the plaintiff
- 3.A permanent injunction restraining the Defendant, his agents, servants, employees and family members, or any other person claiming under him, from alienating, transferring, entering, re-entering, trespassing, disposing of in any way, or interfering with the Plaintiff's possession or occupation and quiet enjoyment of the portion measuring 7 1/2 acres
- 4.The Defendant directed to execute the relevant instruments to effect the transfer of the subdivision in favour of the Plaintiff within thirty days from the date of survey, in default the Deputy Registrar of the Court to execute the said documents and instruments
- 5.The costs of the Originating Summons to be borne by the Defendant
- Jurisdiction invoked
- Order 37 Rule 7 of the Civil Procedure Rules; Section 38 of the Limitation of Actions Act; Section 28 of the Land Registration Act; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kerario v Seria (Sued as the Representative of Seria Boroye Sinda - Deceased) (Enviromental and Land Originating Summons E028 of 2021) [2025] KEELC 3570 (KLR)", Case Analysis (2025). Originating Summons dated 29th June 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3570/eng@2025-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.