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ELCDismissedOriginating Summons dated and filed on 4th November, 2024 (Eldoret ELC)· [2025] KEELC 3917 (KLR)

Kimaiyo & 5 others v Kimilot (Enviromental and Land Originating Summons 321 of 2016) [2025] KEELC 3917 (KLR)

Environment and Land Court
15 May 2025
6,183 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a family's land claim because living on land with the owner's permission never counts toward the 12 years needed for adverse possession.

What this practically means

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Executive summary

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The Applicants, children of the late Kimaiyo Samoei Kimilot, filed an Originating Summons seeking a declaration that they had acquired 6 acres of L.R. No. Uasin Gishu/Kaptagat/150 (registered in the name of the late Cheruiyot Kimilot, whose estate the Respondent administers) by adverse possession, an order for excision and conveyance of that portion, a permanent injunction, and costs. Their families had lived on the land since 1964 under an arrangement between the deceased proprietors, who were relatives. The Respondent opposed the claim, contending that the entry was permissive (his father having allowed the Applicants' father to cultivate 1, later 2, acres following an elders' agreement of 13th September 2002), that multiple prior suits over the land showed the occupation was never peaceful, and that a 2002 Tribunal award in the Applicants' mother's favour had lapsed. The court framed three issues: adverse possession, the effect of the Tribunal award adopted as CMCC Award No. 52 of 2002, and costs. It held that the Applicants' entry was permissive; permission ended only when the Respondent filed an eviction suit (Eldoret ELC No. 834 of 2012) in 2012, from which point time began to run. Only about 4 years had elapsed when suit was filed, short of the statutory 12 years, and the Applicants also failed to prove the extent of their occupation. The 2002 judgment and decree had lapsed under Section 4(4) of the Limitation of Actions Act, unimplemented, so the portion reverted to the estate. On costs, although the Respondent succeeded, the court declined to condemn the Applicants, being family members facing possible displacement, in the interest of peace and reconciliation. The Originating Summons was dismissed with no orders as to costs.

Key legal issues

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01

Whether the Applicants acquired 6 acres of L.R. No. Uasin Gishu/Kaptagat/150 by adverse possession

Holding

No. Entry was permissive under a familial arrangement; the permission ended only when the Respondent filed an eviction suit in 2012, so the requisite 12 years had not run when the suit was filed

Reasoning

The court found the Applicants' possession was initially with permission of the deceased registered proprietor, and the Respondent later condoned the occupation, even agreeing before elders to allow 2 acres. The Respondent's 2012 eviction suit revoked the permission and started time running. By the filing of this suit only about 4 years had elapsed, well short of 12 years under Sections 7 and 13 of the Limitation of Actions Act. The Applicants also failed to prove the extent (6 acres) of their occupation with a surveyor's report.

p. 9
02

Whether the Applicants could rely on the Burnt Forest Lands Disputes Tribunal award adopted as CMCC Award No. 52 of 2002

Holding

No. The 2002 judgment and decree lapsed under Section 4(4) of the Limitation of Actions Act as they were never implemented

Reasoning

The Tribunal awarded the Applicants' mother 6 acres on 15th May 2002, adopted as a court judgment with a decree issued on 12th July 2002. However, the award was never implemented and no subdivision occurred. Under Section 4(4) of the Limitation of Actions Act, an action may not be brought on a judgment after twelve years, so the judgment and decree had lapsed by operation of law and the portion reverted to the deceased's estate.

p. 10
03

Who should bear the costs of the suit

Holding

No costs awarded; each party to bear their own costs despite the Respondent's success

Reasoning

While costs normally follow the event under Section 27 of the Civil Procedure Act, the court has discretion to depart for good reason. The parties are family members who have fought several legal battles, and the Applicants now face having to find an alternative place of abode. Condemning them to costs would be punitive and undermine the prospects of reconciliation contemplated by Article 159(2)(c) of the Constitution.

p. 11

Legal principles established

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  • A claimant must prove all elements of adverse possession, including possession for over 12 years against a registered owner whose possession has been dispossessed or discontinued
  • Possession initially permissive does not become adverse until the permission is revoked; limitation runs only from the time possession first became adverse
  • Filing of an eviction suit by the owner ends the permission and marks the commencement of adverse possession, but does not itself interrupt physical possession
  • A judgment and decree may not be enforced after twelve years from delivery, and unexecuted judgments lapse by operation of law under Section 4(4) of the Limitation of Actions Act
  • Identification of the specific land in adverse possession is integral to proving the claim
  • Costs follow the event but the court may depart for good reason, considering among others the relationship between the parties and the need to promote reconciliation under Article 159(2)(c) of the Constitution

Court orders

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  1. 1.The Originating Summons dated and filed on 4th November, 2024 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Limitation of Actions Act, CAP 22 Laws of KenyaSection 7
  • Limitation of Actions Act, CAP 22 Laws of KenyaSection 13
  • Limitation of Actions Act, CAP 22 Laws of KenyaSection 38(1)
  • Limitation of Actions Act, CAP 22 Laws of KenyaSection 4(4)
  • Limitation of Actions Act, CAP 22 Laws of KenyaSection 12
  • Civil Procedure ActSection 27(1)
  • Constitution of Kenya, 2010Article 159(2)(c)

Cases cited (12)

  • Odakha & Another vs Lubia
    Environment & Land Case E028 of 2021 (2023) KEELC (KLR)
  • Registered Trustee, Catholic Diocese of Murang'a vs Micere Njau & 3 Others
    (2022) eKLR
  • Mary Wangari Macharia (Suing in her Capacity as the Administratrix of the Estate of Macharia Gutu Thungu (Deceased) vs Edwin Onesmus Wanjau (Suing in his Capacity as the Administrator of the Estates of Kimingi Warieta (Deceased) and Mwangi Kimingi (Deceased)
    (2022) eKLR
  • Mtana Lewa vs Kahindi Ngala Mwagandi
    (2015) eKLR
  • Sisto Wambugu vs Kamau Njuguna
    (1983) eKLR
  • Samwel Nyakenogo vs Samwel Orucho Onyaru
    (2010) eKLR
  • Wilson Kazungu Katana & 101 others vs Salim Abdalla Bakshwein & Another
    (2015) eKLR
  • Githu vs Ndele
    (1984) KLR 776
  • Wambugu vs Njuguna
    Civil Appeal No. 10 of 1982
  • Gabriel Mbui vs Mukindia Maranya
    (1993) eKLR
  • Rodgers Mwambonje vs Douglas Mwambonje
    (2014) KEELC 114 (KLR)
  • Morgan Air Cargo Limited vs Everest Enterprises Limited
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over adverse possession claims to land, founded on the Limitation of Actions Act, CAP 22 Laws of Kenya (Sections 7, 13 and 38)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kimaiyo & 5 others v Kimilot (Enviromental and Land Originating Summons 321 of 2016) [2025] KEELC 3917 (KLR)", Case Analysis (2025). Originating Summons dated and filed on 4th November, 2024 (Eldoret ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3917/eng@2025-05-15

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