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ELCPartially AllowedBomet CM ELC Case No. 91 of 2018 (Appeal)· [2026] KEELC 540 (KLR)

Kenduiywa (Being Next Friend and Guardian Ad Litem of Sawe Cheroigin) v Cheroigin (Environment and Land Appeal E007 of 2022) [2026] KEELC 540 (KLR)

Environment and Land Court
5 February 2026
11,410 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~46 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal to the Environment and Land Court at Kericho against the judgment of Hon. K.L Kiniale in Bomet CM ELC Case No. 91 of 2018, delivered on 19th September 2022, which granted the Respondent a permanent injunction over 15 acres of LR No. Kericho/East Sotik S.S/220, an order compelling the Appellant to transfer 15 acres, and a declaration that the Respondent had acquired half the suit land by adverse possession. The Respondent claimed he purchased a 15-acre portion from the Appellant in 1973, took possession through his son Richard Maritim, and later repaid the Settlement Fund Trustee loan. The Appellant denied the sale, disputed the authenticity of elders' minutes and claimed the loan was repaid by his father. In a reserved judgment, the ELC framed six issues. The court found the trial magistrate erred in finding a contract of sale where no written agreement was produced and no witness proved the pleaded written agreement, holding parties bound by their pleadings. The court held the Appellant could not raise payment of the purchase price or the alleged faking of the elders' minutes for the first time on appeal. It found the trial magistrate erred in holding that the Respondent repaid the Settlement Fund Trustee loan, noting glaring contradictions and dual identical receipts despite title issuing in 1986. The finding that the Respondent's son occupied the land was upheld, but the claim over 15 acres failed because the acreage was never measured or proved, defeating the adverse possession claim for that specific portion. The appeal was allowed, the trial judgment set aside, and the Appellant awarded both the costs of the suit and of the appeal. (289 words)

Key legal issues

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01

Existence of a contract for sale of a 15-acre portion of the suit land

Holding

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

Reasoning

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.

p. 13
02

Evidence of payment of the purchase price

Holding

The Appellant, having not raised the issue of payment of the purchase price before the trial court, was precluded from raising it on appeal

Reasoning

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.

p. 14
03

Repayment of the Settlement Fund Trustee loan

Holding

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

Reasoning

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.

p. 18
04

Possession of the suit land by the Respondent's son

Holding

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

Reasoning

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.

p. 20
05

Constructive trust and adverse possession over 15 acres

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The judgement delivered in Bomet CM ELC Case No. 91 of 2018 on 19th September, 2022 is set aside.
  2. 2.The Appellant shall have costs of the suit.
  3. 3.The Appellant shall have costs of the appeal.

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Limitation of Actions ActSection 38(1) and (2)
  • Land Registration ActSection 28
  • Civil Procedure Act (Cap. 21)Section 27(1)
  • Civil Procedure RulesOrder XIV

Cases cited (25)

  • Fotos Korkontzikas Panagio vs Nick Soulus
    [1987] 2 R.C.S
  • Re Estate of Paul Muthiani Musau (deceased)
    [2019] eKLR
  • Cheromei V Muigai
    (Environment & Land Case E005 of 2023) [2024] KEELC 5604 (KLR)
  • NJA v ZJA alias ZP
    (Civil Appeal 55 of 2020) [2023] KECA 937 (KLR)
  • Mtana Lewa vs Kahindi Ngala Mwangandi
    [2015] eKLR
  • Gabriel Mbui vs Mukindia Maranya
    [1993] eKLR
  • Peter Mbiri Michuki vs Samuel Mugo Michuki
    [2014] eKLR
  • Macharia Mwangi Maina & 87 others vs Davidson Mwangi Kagiri
    [2014] eKLR
  • Onyango v Opondo; Opondo (Plaintiff to the Counterclaim); Onyango & 2 others (Defendant to the Counterclaim)
    [2024] KEELC 3617 (KLR)
  • Aliaza v Saul
    [2022] KECA 583 (KLR)
  • Wambugu vs Njuguna
    [1983] KLR 172
  • Wilfred Kegonye Babu vs Henry Mose Onuko
    [2019] eKLR
  • Public Trustee vs Wanduru
    [1984] KLR 314
  • Gatimu Kinguru vs Muya Gathangi
    [1976] KLR 253
  • East African Standard Limited vs Guardian Limited
    citation not given
  • Samuel Odhiambo Oludhe & 2 others v Jubilee Jumbo Hardware Limited & another
    [2018] eKLR
  • Gitobu Imanyara & 2 others Vs Attorney General
    [2016] Eklr
  • Abok James Odera T/A A.J Odera & Associates Vs John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR
  • Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank
    [2004] eKLR
  • Republic v Tribunal of Inquiry to Investigate the Conduct of Tom Mbaluto & others Ex-Parte Tom Mbaluto
    [2018] eKLR
  • Kasuve Vs Mwaani Investments Limited & 4 others
    1 KLR 184
  • Richard Wefwafwa Songoi v Ben Munyifwa Songoi
    [2020] eKLR
  • William Kipso Sigei vs Kipkoech Aruse & Another
    [2019] eKLR
  • Oduor (Suing as the personal administrator of the Estate of Lucas Oduor Osowo - Deceased) v Ojode & another
    [2024] KEELC 1061 (KLR)
  • Macharia Mwangi Maina & 81 Others vs Davidson Mwangi Kagins
    [2014] eKLR
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

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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, "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.