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ELCDismissedOriginating Summons dated 9th June, 2021· [2025] KEELC 5548 (KLR)

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)

Environment and Land Court
24 July 2025
11,364 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The Plaintiff, a legal representative of the estate of Kipsiele Arap Langat (registered proprietor of Kericho/Kimulot/695), brought an Originating Summons under Order 37 Rule 7 of the Civil Procedure Rules seeking a declaration that his family had acquired two acres of Kericho/Kimulot/694, registered to the Defendant's late father Chepkwony Arap Marisin, by adverse possession, together with mesne profits for tea plucked by the Defendant since August 2020. The Plaintiff pleaded that the parties' fathers mutually agreed in the 1970s to exchange two-acre portions: the Defendant's family settled on part of parcel 695 (where they built a homestead) while the Plaintiff's brother, Elijah Siele, planted tea on part of parcel 694. The Defendant maintained the dispute was a boundary/encroachment issue, not adverse possession, pointing to Chief's letters of 1995 and administrative survey interventions culminating in the re-establishment of boundaries in 2020 after which the Plaintiff's family lost possession of the tea portion. The Court framed three issues: adverse possession, entitlement to the orders sought, and costs. It held that the Plaintiff's own pleadings and documents established that possession of the disputed portion was founded on a mutual exchange, i.e., with the consent of the registered owner, and permissive possession cannot be adverse. The Plaintiff's attempt in submissions to recast his possession as hostile was a departure from the pleadings, and submissions cannot substitute for evidence. The claim of adverse possession therefore failed, the ancillary reliefs could not be granted, and the suit was dismissed with costs.

Key legal issues

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01

Whether the Plaintiff acquired two acres of Kericho/Kimulot/694 by adverse possession

Holding

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.

Reasoning

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.

p. 21
02

Whether the Plaintiff was entitled to the other orders sought, including mesne profits

Holding

No; the claim for adverse possession having failed, the other prayers could not be granted.

Reasoning

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.

p. 22
03

Costs of the suit

Holding

Costs were awarded to the successful Defendant, costs following the event.

Reasoning

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.

p. 22

Legal principles established

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  • 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

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  1. 1.The Plaintiff's suit is dismissed with costs.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 37 Rule 7
  • Limitation of Actions ActSections 7, 9, 10, 11, 12, 13 & 38(1) and (2)
  • Civil Procedure Act (Cap. 21)Section 27

Cases cited (14)

  • John Omuse v Sifrosa Akumu Oburon
    [2019] eKLR
  • Rose Akello Otieno v Joseph Odote & another
    [2022] eKLR
  • Ruth Wangari Kanyagia vs Josephine Muthoni Kinyanjui
    [2017] eKLR
  • Mtana Lewa vs Kahindi Ngala Mwangandi
    [2015] eKLR
  • Gatimu Kinguru vs Muya Gathangi
    [1976] KLR 253
  • Kasuve Vs Mwaani Investments Limited & 4 others
    1 KLR 184
  • Richard Wefwafwa Songoi v Ben Munyifwa Songoi
    [2020] eKLR
  • Ramadhan Wanzala Omoro v County Government of Kakamega
    [2020] eKLR
  • Samuel Miki Waweru vs. Jane Njeru Richu
    Civil Appeal No. 122 of 2001
  • Jandu v Kirpal
    [1975] EA 225
  • Emmanuel Njogu Muchina v Judy Njeri Micere
    [2021] eKLR
  • Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Mwavula v Waweru t/a Antique Auctioneers Agencies & another
    (Civil Appeal E374 of 2023) [2024] KEHC 5988 (KLR) (24 May 2024) (Ruling)
  • Erastus Wade Opande vs. Kenya Revenue Authority & Another
    Kisumu HCCA No. 46 of 2007
Jurisdiction invoked
Order 37 Rule 7 of the Civil Procedure Rules, 2010 read with 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, "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.