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ELCDismissedOriginating Summons dated 18th October 2024 (amended 15th May 2025)· [2025] KEELC 7271 (KLR)

Kibwalei v Lukorito & another (Enviromental and Land Originating Summons E010 of 2024) [2025] KEELC 7271 (KLR)

Environment and Land Court
27 October 2025
MOM. A. Odeny
2,144 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Nakuru dismissed a man's 4-acre adverse possession claim because he had already lost a case over the same land and never disclosed it.

What this practically means

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Executive summary

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The Plaintiff filed an amended Originating Summons seeking a declaration that he had acquired 4 acres of Rongai/Lengenet Block 3/200 (approximately 4.44 hectares) in Nakuru County by adverse possession, an order registering him as proprietor, an order compelling the Defendant to execute transfer documents, and costs. He claimed to have occupied the land peacefully since 1973 pursuant to a purchase of shares from Kibwalei Chemjor. The Defendant, Veronica Terigi Lukorito, opposed through a replying affidavit showing that the land was allocated to her late father Rotich Chemjor by the land buying company in 1989; the Plaintiff's father had occupied it only under a licence to care for livestock. She disclosed that the Plaintiff had earlier sued in ELC No. 202 of 2015 seeking annulment of the defendants' registration for fraud; that suit was dismissed with a counterclaim allowed on 25th February 2021 by Justice Mutungi, who declared the defendants owners and found the plaintiff's possession unauthorised and permissive. The court held the present claim res judicata, noted the plaintiff's non-disclosure of the prior suit in his verifying affidavit, and applied Wambugu v Njuguna, Mbira v Gachuhi and Haro Yonda Juaje to hold that permissive, disputed occupation cannot be adverse, and that a claimant who attacks the registered title as fraudulent cannot simultaneously claim by adverse possession. The Originating Summons was dismissed with costs to the Defendants.

Key legal issues

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01

Whether the Plaintiff satisfied the ingredients of adverse possession

Holding

No - the claim failed on res judicata, permissive occupation and failure to concede the registered title

Reasoning

The court found the same subject matter had been determined in ELC 202 of 2015 by Justice Mutungi, where the plaintiff's suit was dismissed and the defendants declared owners. Occupation originated as a licence from the defendant's father to care for livestock, was disputed from 2014 through chief's meetings and police reports, and the plaintiff had earlier attacked the title as fraudulent. Possession therefore lacked the necessary non-permissive, open, peaceful and adverse character for the statutory period.

p. 4
02

Whether the suit is res judicata

Holding

Yes - ownership of the suit land was determined in Nakuru Civil Case No. 202 of 2015, depriving this court of jurisdiction

Reasoning

The plaintiff had previously sued the defendants seeking annulment of their registration on grounds of fraud; the court dismissed his suit and allowed the counterclaim, declaring the defendants owners. The plaintiff's false assertion in his verifying affidavit that no other case existed compounded the problem. Disclosure of the prior case would have shown the matter res judicata, leaving the court no jurisdiction over the current Originating Summons.

p. 4

Legal principles established

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  • A claim for adverse possession cannot succeed where the claimant alleges the registered proprietor's title was fraudulently acquired; the proper remedy is rectification, not adverse possession
  • Non-disclosure of material facts, such as prior litigation over the same subject matter, works against the party guilty of non-disclosure
  • Occupation under a licence that was withdrawn, and which generated disputes, is neither quiet nor peaceful and cannot found adverse possession

Court orders

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  1. 1.The Originating Summons is dismissed
  2. 2.Costs of the suit awarded to the Defendants

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSection 13(1)
  • Land Registration Act, 2012Section 28(h)
  • Registered Land ActSection 143
  • Constitution of KenyaArticles 10, 40, 159(2)(e)

Cases cited (6)

  • Kasukwu Ndolo vs Eliud Mbithi Kasuku
    [2006] eKLR
  • Wambugu vs Njuguna
    [1983] KLR 172 (also cited as (1983) KLR 173)
  • Macharia Mwangi & 87 Others vs Davidson Mwangi Kagiri
    [2014] eKLR
  • Raphael Kahindi Kawala vs Mount Elgon Beach Properties Limited
    (2018) eKLR
  • Mbira v Gachuhi
    (2002) 1 EA(LR) 137
  • Haro Yonda Juaje v Sadaka Dzengo Mbauro & Kenya Commercial Bank
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; claim for adverse possession under Sections 7, 13 and 38(1) 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, "Kibwalei v Lukorito & another (Enviromental and Land Originating Summons E010 of 2024) [2025] KEELC 7271 (KLR)", Case Analysis (2025). Originating Summons dated 18th October 2024 (amended 15th May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7271/eng@2025-10-27

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