Kisang (Suing as the Legal Representative of the Estate of Kiroitich Chelanga) v Chelimo & another (Environment and Land Case E005 of 2024) [2025] KEELC 5804 (KLR)

The plaintiff's and 1st defendant's evidence on the date of the registered owner's death was contradictory, but circumstantial material - the absence of the transferor's signature, PIN and photograph on the transfer form, missing Land Control Board records and minutes, the inability to confirm the attendee's identity, and the 2014 restriction citing impersonation - led the court to infer the proprietor was dead when the dealings occurred. As beneficiary of these irregularities, the 1st defendant bore the burden of proving due process and failed.

Adverse possession requires possession adverse to the owner's title, without consent or permission. The 1st defendant pleaded that he bought the parcel from the registered owner, attended the Land Control Board and obtained consent to transfer; such an entry is permissive and cannot found a claim of adverse possession. The court accordingly dismissed the counterclaim as lacking in merit.

The plaintiff pleaded death in 1975 and produced one death certificate, yet in her succession affidavit she deponed to death in 1971 with a different certificate. The 1st defendant pleaded death in 2020 but testified it was 2022. The court held neither version was reliable, though the totality of evidence still supported the inference that the proprietor was not alive during the impugned dealings.

The Registrar's evidence showed that registrations followed the documents presented, and the plaintiff conceded the Registrar could not have known of the proprietor's death or the impersonation. The court found the case against the 2nd defendant unproved but declined costs because the plaintiff had reasonable cause to suspect facilitation of the irregular dealings.