Siele (Suing as personal representative of the Estate of Kipsiele Arap Langat - Deceased) v Chepkwony (Sued as a personal representative of the Estate of Chepkwony Arap Marisin - Deceased) (Enviromental and Land Originating Summons E015 of 2021) [2025] KEELC 5548 (KLR)
The bottom line
#A Kenyan court dismissed a claim to two acres of land because the possession was agreed with the owner, not hostile, so adverse possession failed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff acquired two acres of Kericho/Kimulot/694 by adverse possession
No. The Plaintiff's own pleadings and documents showed the possession arose from a mutual exchange, making it permissive rather than hostile, so adverse possession was not established.
The Plaintiff's affidavit pleaded that the parties' fathers mutually agreed to exchange two-acre portions. The Defendant admitted possession but not the exchange, and the County Surveyor confirmed mutual encroachments. Since possession founded on an agreement or consent is not hostile, the essential element of adverse possession was absent. The Plaintiff's attempt in submissions to recast the possession as hostile was a departure from pleadings, which cannot take the place of evidence.
Whether the Plaintiff was entitled to the other orders sought, including mesne profits
No; the claim for adverse possession having failed, the other prayers could not be granted.
Because the foundational claim of adverse possession failed, the ancillary reliefs - declaration of proprietorship, compensation for tea plucking and mesne profits - all fell away, as they were premised on the acquisition of title by adverse possession.
Costs of the suit
Costs were awarded to the successful Defendant, costs following the event.
Under Section 27 of the Civil Procedure Act the successful party ordinarily gets costs unless the Court directs otherwise for good reason. Having dismissed the suit, the Court awarded costs to the Defendant.
Legal principles established
#- A claim of adverse possession cannot succeed where the claimant's possession is with the permission of the owner, including possession under a mutual agreement or exchange.
- Submissions cannot take the place of evidence or pleadings; parties are bound by their pleadings and cannot introduce a new case in submissions.
- Costs follow the event under Section 27 of the Civil Procedure Act.
Court orders
#- 1.The Plaintiff's suit is dismissed with costs.
- Jurisdiction invoked
- Order 37 Rule 7 of the Civil Procedure Rules, 2010 read with Section 38 of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Siele (Suing as personal representative of the Estate of Kipsiele Arap Langat - Deceased) v Chepkwony (Sued as a personal representative of the Estate of Chepkwony Arap Marisin - Deceased) (Enviromental and Land Originating Summons E015 of 2021) [2025] KEELC 5548 (KLR)", Case Analysis (2025). Originating Summons dated 9th June, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5548/eng@2025-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.