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ELCDismissedEnvironment and Land Originating Summons dated 21st February, 2023 (Kericho)· [2025] KEELC 4740 (KLR)

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)

Environment and Land Court of Kenya
26 June 2025
6,352 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Plaintiff, administrator ad litem of the estate of his late mother Taputany Cheptonui Chumo, brought an Originating Summons under Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act claiming 1 acre of land parcel No. Kericho/Kipchimchim/3674 by adverse possession, seeking registration as proprietor and an order compelling the Defendants (children and personal representatives of the late registered proprietor Kipkurui Arap Sigira) to execute transfer documents. He alleged his late father purchased a portion of the original parcel Kericho/Kipchimchim/1090 from Langok w/o Murgor in 1972, upon which the family settled, cultivated, and buried family members, with occupation continuing for over 40 years through successive subdivisions. The Defendants filed a Replying Affidavit and Statement of Defence conceding occupation but alleging unpaid sums of Kshs. 120,000, 240,000 and 360,000 and an unresolved land dispute; however, they did not attend the hearing or call evidence. The court framed two issues: whether the Plaintiff acquired the parcel by adverse possession, and costs. Applying Mtana Lewa, Samuel Kihamba and related authorities, the court held that a claim founded on a sale agreement requires proof of the agreement (or oral evidence given the pre-2003 writing regime) and of payment of the purchase price or the date of the last instalment to compute when limitation time began. The Plaintiff produced no sale agreement and no evidence of price or payment, and failed to link his father's estate (the alleged purchaser) to his mother's estate which he represented. Although the Defendants' unproved averments remained mere allegations, the Plaintiff had still to discharge his burden. The claim was dismissed with no order as to costs.

Key legal issues

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01

Whether the Plaintiff acquired land parcel No. Kericho/Kipchimchim/3674 by adverse possession

Holding

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.

Reasoning

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.

p. 13
02

Effect of a defendant's failure to adduce evidence on pleaded averments

Holding

Unproved averments in a defence remain mere allegations, but the plaintiff is still obliged to prove his case to the required standard

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.The Plaintiff's claim for adverse possession is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7
  • Limitation of Actions ActSection 38(1) and (2)
  • Limitation of Actions ActSections 7 & 13
  • Evidence ActSections 107 and 108
  • Contract Act (as amended in 2003)

Cases cited (15)

  • Samwel Nyakenogo vs Samwel Orucho Onyaru
    [2010] eKLR
  • Teresa Wachuka Gachira v Joseph Mwangi Gachira
    [2009] eKLR
  • Kenya Power & Lighting Co Ltd v Rassul Nzembe Mwadzaya
    [2020] eKLR
  • Edward Muriga through Stanley Muriga v Nathaniel D. Schulter
    Civil Appeal No. 23 of 1997
  • Gichinga Kibutha v Caroline Nduku
    [2018] eKLR
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • Samuel Kihamba v Mary Mbaisi
    [2015] eKLR
  • Eliva Nyongesa Lusenaka & Anor v Nathan Wekesa Omacha
    Kisumu Civil Appeal No. 134 of 1993
  • Cheromei v Muigai
    (Environment & Land Case E005 of 2023) [2024] KEELC 5604 (KLR) (25 July 2024)
  • Peter Mbiri Michuki v Samuel Mugo Michuki
    [2014] eKLR
  • Public Trustee v Wanduru
    [1984] KLR 314
  • Abala v Oracha
    (Environmental and Land Originating Summons E005 of 2023) [2024] KEELC 6279 (KLR) (26 September 2024)
  • Kiptum v Njau & another
    (Environment & Land Case 292 of 2013) [2022] KEELC 14823 (KLR) (15 November 2022)
  • Njeri Kimani (Suing in her capacity as the adminstratix of the estate of Nasser Kimani Njoroge (Deceased) v Edwin Onesmus Wanjau
    [2022] eKLR
  • Joseph Gachumi Kiritu v Lawrence Munyambu Kabura
    [1996] eKLR
Jurisdiction invoked
Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act

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, "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.