Cheruiyot (Suing as the Administrator of the Estate of Taputany Cheptonui Chumo) v Kirui & 2 others (Enviromental and Land Originating Summons E002 of 2023) [2025] KEELC 4740 (KLR)
The bottom line
#The Kericho Environment and Land Court dismissed a family's 40-year adverse possession claim over 1 acre because they had no sale agreement or proof of payment.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff acquired land parcel No. Kericho/Kipchimchim/3674 by adverse possession
No - the claim was not proved. The plaintiff, whose claim stems from an alleged 1972 purchase by his late father, produced no sale agreement, no oral evidence of purchase, and no evidence of the purchase price or date of last instalment, so time could not be computed. He also failed to link the estate of the alleged purchaser (his father) to his late mother's estate which he represents.
Where an adverse possession claim arises from a sale, possession becomes adverse only upon full payment of the purchase price; time runs from that date. The plaintiff produced the green cards showing the chain of registration but no agreement or evidence of payment terms. Following Gichinga Kibutha, uncontroverted evidence must still meet the burden of proof. The claim therefore failed on both the computation of time and privity between the estates.
Effect of a defendant's failure to adduce evidence on pleaded averments
Unproved averments in a defence remain mere allegations, but the plaintiff is still obliged to prove his case to the required standard
Relying on Kenya Power & Lighting Co Ltd v Rassul Nzembe Mwadzaya and Edward Muriga v Nathaniel D. Schulter, the court held that a defence unsupported by evidence remains mere allegation. However, per Gichinga Kibutha v Caroline Nduku, the claimant must still discharge the burden of proof even where the opponent does not appear or adduce evidence.
Legal principles established
#- A defendant who files pleadings but adduces no evidence leaves the averments as mere allegations; however, the plaintiff still bears the burden of proving its case
- In an adverse possession claim founded on a sale agreement, the plaintiff must produce the agreement or oral evidence of purchase and prove payment of the purchase price or the date of the last instalment, so the court can compute when time began to run
- Elements of adverse possession: open occupation without force, secrecy, or licence, with intention to possess (nec vi, nec clam, nec precario plus animus possidendi)
Court orders
#- 1.The Plaintiff's claim for adverse possession is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheruiyot (Suing as the Administrator of the Estate of Taputany Cheptonui Chumo) v Kirui & 2 others (Enviromental and Land Originating Summons E002 of 2023) [2025] KEELC 4740 (KLR)", Case Analysis (2025). Environment and Land Originating Summons dated 21st February, 2023 (Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4740/eng@2025-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.