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ELCDismissedNot stated in excerpt· [2025] KEELC 6278 (KLR)

Chepkwony v Boit (Environment and Land Appeal E021 of 2023) [2025] KEELC 6278 (KLR)

Environment and Land Court
24 September 2025
MOM. A. ODENY
1,808 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed you cannot claim land by adverse possession while alleging the owner's title was fraudulently obtained.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Nakuru (M. A. Odeny, J) against the judgment of Hon Z.J Nyakundi, Resident Magistrate, delivered on 15th June 2023 in Molo CM ELC No E044 of 2023. The Respondent had sued the Appellant for trespass and eviction in respect of land parcel Nakuru/Baraget Settlement Scheme/1612, producing a title deed, official search and an assessment of environmental destruction. The Appellant defended and counterclaimed for registration as proprietor by adverse possession of 5 acres, alleging he had been in undisturbed possession for over 12 years, that the Respondent obtained title fraudulently in 2005 despite a 1997 restriction on dealings in the settlement scheme, and that the parcel number had been changed from 304 B to 1612 in collusion with a surveyor. The trial court found the Appellant a trespasser, ordered eviction and costs to the Respondent. On appeal, the court condensed the five grounds into two issues: whether the trial magistrate failed to consider the counterclaim, and whether the Appellant acquired the land by adverse possession. The court held the counterclaim was considered and rejected on the evidence, and that a claimant who alleges fraud in the acquisition of the registered title cannot simultaneously claim adverse possession, since fraud must be specifically pleaded and proved and adverse possession presupposes acknowledgment of the owner's title. Relying on Haro Yonda Juaje v Sadaka Dzengo Mbauro & Kenya Commercial Bank, the court dismissed the appeal with costs to the Respondent, affirming the trial judgment.

Key legal issues

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01

Whether the Trial Magistrate failed to consider the Appellant's counterclaim for adverse possession

Holding

The Trial Magistrate did consider the counterclaim and found that the Appellant failed to prove exclusive, actual, continuous and open possession

Reasoning

The High Court examined the trial court's judgment, which expressly addressed the defendant's claim of possession, and concluded that the counterclaim had been considered and correctly rejected. The ground of appeal alleging failure to consider the counterclaim therefore failed.

p. 4
02

Whether the Appellant acquired the suit land by adverse possession

Holding

No. By pleading fraud in the acquisition of the Respondent's title, the Appellant disentitled himself from claiming adverse possession; the proper remedy for a tainted title would be rectification/cancellation, not adverse possession

Reasoning

The court held that adverse possession presupposes acknowledgment of the registered owner's title. A claimant who alleges the title was fraudulently obtained asserts a tainted root and cannot benefit from it through adverse possession. Fraud must be specifically pleaded and proved; the Appellant did neither, so the counterclaim could not succeed.

p. 5

Legal principles established

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  • A claimant in adverse possession must acknowledge the ownership of the registered proprietor; a party alleging fraudulent acquisition of the title cannot simultaneously claim the land by adverse possession
  • Allegations of fraud must be specifically pleaded and proved, not merely mentioned

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal to the Respondent

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Land Registration ActSection 28
  • Land Registration ActSections 23(1), 24 and 26
  • Evidence ActSection 60(1)(a)
  • Evidence ActSection 107(1)
  • Registered Land ActSection 143
  • Constitution of KenyaArticle 50(1)

Cases cited (6)

  • Wambugu vs Njuguna
    [1983] KLR 172
  • Mbira vs Gachuhi
    [2002] 1 EALR 137
  • Daudi Kiptugen vs Commissioner of Lands & 4 others
    [2015] eKLR
  • Kigera vs Kimani
    [1988] eKLR
  • Samuel Ambasa & 3 others vs Stella Ingasia
    (2022) eKLR
  • Haro Yonda Juaje v Sadaka Dzengo Mbauro & Kenya Commercial Bank
    (2014) eKLR
On appeal from
Molo Magistrates' Court (CM ELC)
Molo CM ELC No E044 of 2023
Jurisdiction invoked
First appeal from the Magistrates' Court (Environment and Land jurisdiction); provision not stated in the judgment

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, "Chepkwony v Boit (Environment and Land Appeal E021 of 2023) [2025] KEELC 6278 (KLR)", Case Analysis (2025). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6278/eng@2025-09-24

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