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ELCDismissedEldoret Chief Magistrates Court ELC Case No. 60 Of 2012 (Appeal)· [2025] KEELC 6232 (KLR)

Chepkiyeng v Chebiego (Environment and Land Appeal E009 of 2023) [2025] KEELC 6232 (KLR)

Environment and Land Court
18 September 2025
7,612 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land occupier who entered with permission and only learned of the true owner's 2018 title cannot claim adverse possession yet.

What this practically means

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Executive summary

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The Appellant appealed against the judgment and decree of the Eldoret Chief Magistrates Court in ELC Case No. 60 of 2012 delivered on 06.04.2022, by which the Respondent, as plaintiff, obtained a permanent injunction over the suit property, Koitoror/Toiyoluk Block 1 (Koitoror)/166, following the dismissal of the Appellant's defence and counter-claim. The Appellant sought to set aside that judgment and to have judgment entered in terms of his defence and counter-claim, which had pleaded that the land was purchased by his father and Benjamin Chebiego and registered in the Respondent's name in trust, and alternatively claimed adverse possession from 1997. The Court, guided by Selle v Associated Motor Boat Co Ltd, re-evaluated the evidence and framed seven issues. It found the Respondent to be the registered owner, holding the receipts, survey payments and a title issued on 07.02.2018, which the Appellant did not dispute. It found the Appellant was in occupation of the land. However, the adverse possession claim failed on two grounds: the Appellant's 1997 entry was permissive and the land was not then registered to the Respondent, so the twelve-year limitation period only began running from the title of 07.02.2018 and had not lapsed; and the Chief Magistrate's Court lacked jurisdiction over adverse possession claims, rendering the counter-claim bad in law. The trust claim also failed, because the alleged co-owner Benjamin Chebiego denied the joint purchase and DW5 confirmed the Appellant's father and Chebiego were never allocated land or refunded. The Respondent's injunction was therefore merited, the appeal was dismissed, the trial court's judgment upheld, and the Appellant condemned to pay the Respondent's costs.

Key legal issues

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01

Registered ownership of the suit property

Holding

The suit property is registered in the name of the Respondent, who produced receipts, the title deed and an official search; the Appellant did not dispute registration.

Reasoning

The Respondent traced his membership of Koitoror Farm from 1973, produced payment receipts, survey fee receipts, a certificate of title issued on 07.02.2018 and an official search. The Appellant did not contest the registration itself but only the manner in which it was undertaken, which did not displace the registered ownership.

p. 13
02

Whether the Appellant was in occupation of the suit property

Holding

The Appellant was in occupation and/or use of the suit property, whether periodically or permanently.

Reasoning

The Respondent admitted the Appellant periodically cultivated the land while the Appellant claimed occupation since 1997 with developments including houses, a biogas unit, a borehole and a garage. Both accounts established occupation by the Appellant of land registered in the Respondent's name.

p. 14
03

Whether the Appellant was entitled to adverse possession

Holding

The claim failed: entry in 1997 was permissive (with the father's consent, while the land was still in Koitoror Farm Limited's name), and the 12-year period only began running from the Respondent's title of 07.02.2018; further, the magistrate's court lacked jurisdiction over adverse possession claims.

Reasoning

The Appellant entered believing the land belonged to his father, not the Respondent. Time could not run against a title that did not yet exist; the title issued on 07.02.2018, so the limitation period had not lapsed when the Counter-Claim was filed. Independently, the Chief Magistrate's Court had no jurisdiction over adverse possession claims, rendering the Counter-claim bad in law.

p. 15
04

Whether a trust in favour of the Appellant's father and Benjamin Chebiego was established

Holding

No trust was established. The alleged co-owner Benjamin Chebiego (PW2) denied the joint purchase, and DW5 confirmed the father and Chebiego were never allocated land nor refunded.

Reasoning

The court found two separate transactions: the Respondent's own purchase, evidenced by receipts and title in his name; and the failed proposed purchase of 20 acres by the Appellant's father and Benjamin Chebiego, who were among members not allocated land or refunded. The alleged co-owner's denial was fatal to the trust claim.

p. 16
05

Entitlement to the prayers in the plaint and in the appeal

Holding

The Respondent's injunction was merited since the Appellant's occupation was without consent; the appeal was disallowed as the Trial Court correctly appreciated the facts and law.

Reasoning

Having found the Respondent to be the registered owner and the Appellant's occupation unauthorised, the permanent injunction sought in the plaint was merited. The Trial Court's judgment correctly applied the law to the facts, so the appeal failed in its entirety.

p. 17

Legal principles established

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  • A first appellate court must re-evaluate the evidence and arrive at its own independent conclusion, bearing in mind it did not see or hear the witnesses.
  • The Chief Magistrate's Court lacks jurisdiction to hear and determine claims of adverse possession.
  • In a claim of adverse possession where entry was with the consent of the person the claimant believed to be the owner, time begins to run from when the claimant learns of the true registered owner.

Court orders

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  1. 1.The memorandum of appeal dated 04.05.2023 be and is hereby disallowed and/or dismissed
  2. 2.The judgment and decree pronounced on 06.04.2023 in the proceedings known as Eldoret Chief Magistrates Court ELC No. 60 of 2018 be and is hereby upheld
  3. 3.The appellant is condemned to pay costs of this appeal to the respondent

Authorities

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Cases cited (1)

  • Selle & Another versus Associated Motor Boat Co. Ltd & Others
    (1968) EA 123
On appeal from
Eldoret Chief Magistrates Court
ELC Case No. 60 Of 2012
Jurisdiction invoked
Appellate jurisdiction over the Memorandum of Appeal dated 04.05.2023 against the Judgment and/or Decree issued in Eldoret Chief Magistrates Court ELC Case No. 60 Of 2012 on 06.04.2022

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, "Chepkiyeng v Chebiego (Environment and Land Appeal E009 of 2023) [2025] KEELC 6232 (KLR)", Case Analysis (2025). Eldoret Chief Magistrates Court ELC Case No. 60 Of 2012 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6232/eng@2025-09-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.