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ELCStruck OutOriginating Summons dated 25th March 2022 (ELC, Kapsabet)· [2025] KEELC 4043 (KLR)

Litu & 26 others v Bomet (Enviromental and Land Originating Summons E010 of 2022) [2025] KEELC 4043 (KLR)

Environment and Land Court
28 May 2025
2,131 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out an adverse possession claim because the plaintiffs sued over their late parents' land without first obtaining letters of administration.

What this practically means

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Executive summary

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The plaintiffs, by Originating Summons dated 25th March 2022 under Articles 40 and 66 of the Constitution, Sections 17 and 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, sought declarations that the defendant's title to land parcel Nandi/Kapkangani/657 was extinguished by their adverse possession from 1983, that they had acquired freehold interest, and an order directing the Land Registrar Nandi County to register them in place of the defendant. The defendant, served by substituted service in the Daily Nation, neither entered appearance nor filed a defence, and the suit proceeded by formal proof. PW1 adopted his statement and exhibited an official search, a Chief's letter and his ID. The court restated the elements of adverse possession from Wilson Kazungu Katana, noting possession must be open, exclusive and adverse for over twelve years without the owner's permission. However, the search certificate revealed a 1989 charge in favour of Industrial and Commercial Development Corporation and an unresolved caution by non-party Musa Luvisia. The court also found an inconsistency between the pleaded occupation since 1983 and PW1's testimony of twenty years' residence. Critically, the plaintiffs, suing on behalf of their deceased parents' estates, had not obtained grants of letters of administration and thus lacked locus standi. Holding the plaintiffs' capacity and the court's jurisdiction over a claim touching on a charge to be in question, the court struck out the suit with no orders as to costs.

Key legal issues

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01

Whether plaintiffs acquired title by adverse possession

Holding

Claim failed; suit struck out as incompetent because plaintiffs lacked locus standi and the existence of an undischarged charge and an unresolved caution raised jurisdictional questions

Reasoning

Although plaintiffs pleaded occupation since 1983, PW1 testified he lived on the land only twenty years, casting doubt on possession predating the 1989 charge. A caution by non-party Musa Luvisia remains in force and Section 72(2) bars inconsistent dispositions. Further, plaintiffs sued on behalf of their deceased parents' estates without grants of letters of administration, so lacked capacity. On formal proof the burden remained on plaintiffs, which they did not discharge.

02

Elements of adverse possession

Holding

Court restated the Katana elements: land registered in another's name, open and exclusive possession adverse to the owner's title, and occupation in excess of twelve years without permission

Reasoning

The court adopted Wilson Kazungu Katana and added Richard Wefwafwa Songoi's requirement that possession be without the owner's permission, and Wambugu v Njuguna on when possession under a sale agreement becomes adverse. It also noted the claim was over a definite portion of land per Muthuita v Wanoe.

p. 3

Legal principles established

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  • A litigant suing on behalf of a deceased's estate must first obtain a grant of letters of administration to have locus standi
  • The burden of proving a case on a balance of probabilities rests on the plaintiff even where the suit proceeds by formal proof

Court orders

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  1. 1.The instant suit generated by way of Originating Summons dated 25th March 2022 is hereby struck out
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 66, 162(2)(b)
  • Limitation of Actions Act, Cap 22Sections 17, 38
  • Civil Procedure Rules 2010Order 37 Rule 7
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A
  • Land Registration Act, 2016 (2012)Sections 28(g), 28(h), 72(2)
  • Land Act, No. 6 of 2012Section 7(d)

Cases cited (12)

  • Mweu v Kiu Ranching & Farming Co-operative Society Ltd.
    [1985] KLR 430
  • Samson S. Maitai & Anor v African Safari Club Ltd. & Ano.
    [2010] eKLR
  • Wilson Kazungu Katana and 101 others v Abdalla Bakshein and another
    (2015) eKLR
  • Richard Wefwafwa Songoi v Ben Munyitwa Songoi
    [2020] eKLR
  • Muthuita v Wanoe & 2 others
    [2008] 1 KLR (G&F) 1024
  • Titus Ong'ang'a Nyachieo v Martin Okioma Nyauma & 3 others
    [2017] eKLR
  • Wambugu v Njuguna
    [1983] KLR 173
  • Rajesh Pranjivan Chudasama v Vailesh Pranjivan Chudasama
    [2014] eKLR
  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others
    [2017] eKLR
  • Benson Mukuwa Wachira v Assumption Sisters of Nairobi Registered Trustees
    (2016) eKLR
  • Kipkoech Arap Langat & Another v Kipngeno Arap Laboso
    Kericho HCCC No 124 of 2004 (OS)
  • Kirugi and another v Kabiya and 3 others
    [1987] KLR 347
Jurisdiction invoked
Articles 40 and 66 of the Constitution, Sections 17 and 38 of the Limitation of Actions Act, Order 37 Rule 7 of the Civil Procedure Rules 2010

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, "Litu & 26 others v Bomet (Enviromental and Land Originating Summons E010 of 2022) [2025] KEELC 4043 (KLR)", Case Analysis (2025). Originating Summons dated 25th March 2022 (ELC, Kapsabet). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4043/eng@2025-05-28

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