Chepkiyeng v Chebiego (Environment and Land Appeal E009 of 2023) [2025] KEELC 6232 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Registered ownership of the suit property
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.
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.
Whether the Appellant was in occupation of the suit property
The Appellant was in occupation and/or use of the suit property, whether periodically or permanently.
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.
Whether the Appellant was entitled to adverse possession
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.
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.
Whether a trust in favour of the Appellant's father and Benjamin Chebiego was established
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.
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.
Entitlement to the prayers in the plaint and in the appeal
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.
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.
Legal principles established
#- 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
#- 1.The memorandum of appeal dated 04.05.2023 be and is hereby disallowed and/or dismissed
- 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.The appellant is condemned to pay costs of this appeal to the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.