Estate of Lomaria Kotoruk alias Plimo Kotoruk (Deceased) Represented by Susan Cherop v Psinen (Environment & Land Case 54 of 2016) [2025] KEELC 4556 (KLR)
The bottom line
#A Kenyan court confirmed that living on a relative's land for years, even to help their family, does not make you the owner.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.If the plaintiff could file the suit as a legal representative of the estate of the late grandfather
- 2.If the registration of the suit land in the name of the late Lomaria Kotoruk was subject to any overriding or equitable interests
- 3.If the defendant can advance any overriding or beneficial interest on behalf of his late father or his family
- 4.How did the defendant gain entry into, or is justified to remain in occupation, use and possession of the suit land?
- 5.If the plaintiff has proved her claim to the required standards to be entitled to the reliefs sought
- 6.If there is a competent counterclaim before the court
- 7.If the defendant has proved that the registration of the land in the name of Lomaria Kotoruk was subject to any trust and or adverse possession
- 8.What is the order as to costs?
Key legal issues
#Capacity of the plaintiff to sue as legal representative
The plaintiff had capacity, the High Court having confirmed her as the valid holder of the grant and her status as beneficiary
The court relied on the succession cause record and ruling of 20/9/2023, which confirmed the plaintiff as the only beneficiary and valid holder of the grant. In the absence of any appeal or review of that ruling, the court found her competent to advance the estate's claim.
Customary trust claim
Not proved; the ingredients in Kiebia v M'Lintari were not met
The defendant failed to prove the land was clan/family land before registration, that he could have been registered, and produced no evidence from family members. The other brothers acquired their own parcels, undermining the trust narrative.
Adverse possession
Not made out; entry and occupation were permissive given the familial relationship
Occupation must be non-permissive, hostile, exclusive and uninterrupted for 12 years. The defendant's admitted support of the orphans and cultivation after 2006 was goodwill, not adverse possession; a rebuttable presumption of consent applies among relatives.
Ownership of the suit land and boundaries
The suit land belongs solely to the estate; parcels 89, 90 and 429 have distinct boundaries per the RIM and copy of records
The defendant produced no tangible documentary evidence to challenge the RIM Map and copy of records showing distinct parcels; title is prima facie evidence of ownership under Section 26(1) of the Land Registration Act.
Mesne profits and damages
Refused for want of specific pleading and proof, and on equitable considerations
Mesne profits were not specifically pleaded or proved with tangible evidence; given the defendant raised the plaintiff after her mother's death, granting damages would be unconscionable since trespass is actionable per se.
Legal principles established
#- Parties are bound by their pleadings and courts cannot determine issues not pleaded
- A title deed or copy of records is prima facie evidence of ownership and may not be challenged by parole evidence
- Trust must be specifically pleaded and proved with tangible evidence; courts will not infer it unless absolutely necessary
- Permissive or familial occupation cannot found adverse possession; courts are wary of adverse possession claims among close relatives
- A person's goodwill in catering for relatives after their parent's death does not make them an adverse possessor
Court orders
#- 1.A declaration that the land comprised in Title No. West Pokot Keringet “A”/89 solely belongs to the estate of the late Lomaria Kotoruk alias Plimo Kotoruk
- 2.A permanent injunction to restrain the defendant, his agents and or servants from ever again interfering with the plaintiff's land parcel No. West Pokot Keringet “A”/89
- 3.Vacant possession to be handed over within 3 months, failing which eviction orders are to be issued at the expense of the defendant
- 4.The defence and counterclaim are dismissed
- 5.There shall be no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land and environment disputes)
Relief refused
#Mesne profits at Kshs.960,000/= per annum from 2016
Not substantiated through tangible and cogent evidence, not specifically pleaded and prayed; plaintiff was raised by the defendant
General damages for trespass
Trespass is actionable per se; granting damages would be unconscionable given the defendant raised the plaintiff
Defendant's counterclaim for declaration of adverse possession, trust, registration and transfer
Trust not specifically pleaded and proved; occupation was permissive and the counterclaim was inconsistent and unsubstantiated
Costs
There shall be no orders as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is I allow the plaintiff’s claim in terms of prayers. (a) and (c) only, of the amended plaint dated 7/11/2023
A declaration that the land comprised in Title No. West Pokot Keringet “A”/89 solely belongs to the estate of the late Lomaria Kotoruk alias Plimo Kotoruk.
A permanent injunction to restrain the defendant, his agents, and or servants from ever again interfering with the plaintiff’s land parcel No. West Pokot Keringet “A”/89.
Vacant possession to be handed over within 3 months from the date hereof otherwise eviction orders are to be issued at the expense of the defendant.
The defense and counterclaim are dismissed.
There shall be no orders as to costs.
Trust is a matter of fact to be established through tangible evidence. A court of law may not infer trust unless there is an absolute necessity to do so.
Adverse possession is a fact observed on the land but not on the title.
Issues in the judgment
#The counterclaim is described as lacking a titular heading
Neither party complied with Order 11 of the Civil Procedure Rules on case management
Consistency in name of deceased: judgment uses both 'Lomaria Kotoruk' and in one instance 'Lomaria Latoruk' in the framed issues
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Estate of Lomaria Kotoruk alias Plimo Kotoruk (Deceased) Represented by Susan Cherop v Psinen (Environment & Land Case 54 of 2016) [2025] KEELC 4556 (KLR)", Case Analysis (2025). Not stated in the judgment as provided (ELC Kitale suit; amended plaint dated 7/11/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4556/eng@2025-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.