Kenduiywa (Being Next Friend and Guardian Ad Litem of Sawe Cheroigin) v Cheroigin (Environment and Land Appeal E007 of 2022) [2026] KEELC 540 (KLR)
The bottom line
#The Environment and Land Court in Kericho overturned a decision awarding a man 15 acres of family land, ruling he never proved the sale agreement or exact acreage he claimed.
What this practically means
#Executive summary
#Key legal issues
#Existence of a contract for sale of a 15-acre portion of the suit land
The Learned Trial Magistrate erred in finding that a contract for sale of land existed where no written agreement was produced and no witness was called to prove the alleged agreement
The Respondent pleaded and testified that there was a written sale agreement left with the Appellant, yet also said the agreement was made before elders and no written agreement was produced. Since parties are bound by their pleadings, the Respondent had to prove the written agreement he pleaded. The trial magistrate erred in validating the alleged contract through the son's possession, possession and existence of a contract being mutually exclusive.
Evidence of payment of the purchase price
The Appellant, having not raised the issue of payment of the purchase price before the trial court, was precluded from raising it on appeal
The trial magistrate did not address payment of the purchase price, focusing instead on the Settlement Fund Trustee loan. The appellate court held that since the Appellant never raised the issue before the trial court and it was not canvassed there, he could not raise it for the first time on appeal, applying the principle against deciding new issues on appeal.
Repayment of the Settlement Fund Trustee loan
The trial magistrate erred in finding that the Respondent repaid the Settlement Fund Trustee loan, given glaring inconsistencies in the Respondent's evidence and unexplained payments made in 2007 despite title having issued in 1986
Both parties produced receipts bearing the same date, serial number, name and amount. PW2 testified he paid the loan in 1993 yet the receipt was dated 24th June 2007, while the Respondent said the elders directed repayment in October 2000. Title had issued in 1986, yet unexplained payments were made in 2007, with no evidence of any outstanding loan. The finding that the Respondent repaid the loan could not stand.
Possession of the suit land by the Respondent's son
The trial magistrate did not err in finding that the Respondent's son was in possession of a portion of the suit land, though the date of taking possession remained unclear
The totality of the evidence, including admissions by DW2 and the Respondent's own testimony, established that Richard Maritim, not the Respondent, was living on a portion of the suit parcel. The court found, however, that when he took possession was unclear, which affected the adverse possession claim rather than the possession finding itself.
Constructive trust and adverse possession over 15 acres
The trial magistrate erred in finding that the Respondent had acquired a fifteen-acre portion by adverse possession because no evidence was led proving the size of the portion occupied, and no express finding of constructive trust was made
Although the portion occupied was identified and fenced, the son admitted the land had never been measured, so the fifteen-acre extent was unproven. The magistrate relied on constructive trust authorities but found only constructive possession, rendering the pleaded constructive trust issue moot. A claim for a specific 15 acres required evidence of that acreage.
Legal principles established
#- On a first appeal the court must re-evaluate the evidence and draw its own conclusions while making due allowance for the fact that it did not see or hear the witnesses
- A party is bound by its pleadings and cannot obtain relief on an unpleaded case
- A new issue not raised before the trial court cannot be raised for the first time on appeal
- A claimant to adverse possession must prove exclusive, open and undisturbed possession for 12 years, and the land adversely possessed must be definitely identified and its extent proved
Court orders
#- 1.The judgement delivered in Bomet CM ELC Case No. 91 of 2018 on 19th September, 2022 is set aside.
- 2.The Appellant shall have costs of the suit.
- 3.The Appellant shall have costs of the appeal.
- On appeal from
- Principal Magistrates Court, Bomet
- Bomet CM ELC Case No. 91 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the magistrates' court ( Memorandum of Appeal dated 17th October, 2022 challenging the decision of Hon. K.L Kiniale)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenduiywa (Being Next Friend and Guardian Ad Litem of Sawe Cheroigin) v Cheroigin (Environment and Land Appeal E007 of 2022) [2026] KEELC 540 (KLR)", Case Analysis (2026). Bomet CM ELC Case No. 91 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/540/eng@2026-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.