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ELCDismissedELC Case No. E003 of 2022 (OS)· [2026] KEELC 1063 (KLR)

Malakwen & another v Rongoei (Enviromental and Land Originating Summons E003 of 2022) [2026] KEELC 1063 (KLR)

Environment and Land Court
26 February 2026
8,200 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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The Eldoret Land Court dismissed a 24-year adverse possession claim because the buyers had no written, witnessed sale agreement and couldn't prove 12 years of possession.

What this practically means

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Executive summary

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The Plaintiffs brought an Originating Summons under Section 38 of the Limitation of Actions Act seeking registration of the 1st Plaintiff as owner of 1.25 acres in Uasin Gishu/Kormaet Scheme/273 by adverse possession. Their case was that the Defendant sold the land to the 2nd Plaintiff in the early 1990s, who in turn sold it to the 1st Plaintiff in January 1997, after which the 1st Plaintiff remained in open, continuous possession for over 24 years. The Defendant denied any sale, asserting he was in Narok at the material time, was registered on 29th November 2015 and titled on 10th May 2019, and had always occupied and leased the land, as confirmed by the area Chief. The court framed three issues. First, it found no written agreement complying with Section 3(3) of the Law of Contract Act and Section 38(1) of the Land Act proved the alleged sale to the 2nd Plaintiff; the LCB consent bore unauthenticated corrections, the minutes were undated and unsigned and omitted the parcel number, so the 2nd Plaintiff acquired no valid title to confer, applying the nemo dat principle. The court also held the 1st Plaintiff had not come with clean hands, given false statements in his statutory declaration supporting a caution. Second, the 1st Plaintiff failed to prove actual, continuous possession for 12 years; moreover time could only run against the registered proprietor from 2015, yielding only about six years by filing in February 2022. The Originating Summons was dismissed with costs to the Defendant, payable by both Plaintiffs.

Key legal issues

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01

Whether the 2nd Plaintiff acquired any valid interest over the suit land transferable to the 1st Plaintiff

Holding

No. The purported sale from the Defendant to the 2nd Plaintiff was not evidenced by a written agreement complying with Section 3(3) of the Law of Contract Act and Section 38(1) of the Land Act; the 2nd Plaintiff had no good or valid title to confer.

Reasoning

The court found no written agreement executed by the vendor and purchaser and attested by a witness. The agreement of 13th January 1997 was signed by Cecilia, the 2nd Plaintiff's wife, not the Defendant; the LCB consent had unauthenticated corrections, the minutes were undated, unsigned and omitted the parcel number, and the Defendant was not a party to any document. The 2nd Plaintiff thus held no enforceable interest, and by the nemo dat principle could pass none to the 1st Plaintiff.

p. 8
02

Whether the 1st Plaintiff proved title by adverse possession

Holding

No. He failed to prove actual possession for the statutory period, and in any event time could only run against the registered proprietor from 2015, giving about six years before filing suit.

Reasoning

The claimant bears the burden of proving actual, open, exclusive, non-permissive possession for 12 years. There was no police report, photographs or independent evidence of the 1st Plaintiff's occupation; the 2nd Plaintiff admitted he never returned to the land after 1997. The Chief's letter supported the Defendant's 20-year use. Further, since the Defendant's name was entered in the register on 29th November 2015, time could not run against unregistered land before then, and only about six years elapsed to filing on 14th February 2022.

p. 13
03

Costs of the suit

Holding

Costs follow the event; the successful Defendant is awarded costs against both Plaintiffs.

Reasoning

Under Section 27 of the Civil Procedure Act, costs follow the event and a successful party should ordinarily be awarded costs, departure only for good reason (Jasbir Singh Rai). The Plaintiffs failed to prove their case on a balance of probabilities, so the Defendant successfully defended his title and no reason was shown to deny him costs.

p. 14

Legal principles established

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  • A contract for the disposition of an interest in land must be in writing, signed by all parties and attested by a witness present at signing; otherwise it is unenforceable
  • An unauthorised sale of land by a person other than the registered owner has no legal effect and no title passes to subsequent purchasers (nemo dat quod non habet)
  • Time for adverse possession cannot run against land that is not registered; as at institution of the suit there must exist a title capable of being extinguished under Section 38(1) of the Limitation of Actions Act
  • A certificate of title takes precedence over a certificate of official search, which is not a certified copy of a registered instrument under Section 26(2) of the Land Registration Act

Court orders

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  1. 1.The Plaintiffs' Originating Summons dated 14th February, 2022 is dismissed
  2. 2.The Defendant shall have the costs of the suit payable by the 1st and 2nd Plaintiffs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSection 37
  • Law of Contract ActSection 3(3)
  • Land ActSection 38(1)
  • Land Registration ActSection 26
  • Civil Procedure Act (Cap. 21)Section 27

Cases cited (13)

  • Littledale vs Liverpool College
  • Mbira vs Gishuhi
    (2002) 1 EALR 137
  • Mtana Lewa vs Kahindi Ngala Mwagandi
    (2015) eKLR
  • Chevron (K) Ltd vs Harrison Charo wa Shutu
    (2016) eKLR
  • Joseph Gahumi Kiritu vs Lawrence Munyambu Kabura
    CA No. 20 of 1993
  • Public Trustee vs Wanduru Ndegwa
    (1984) KLR 314
  • St. Thomas Academy Limited vs Githumu Kangema Limited & Others
    (2024) KEELC 7025 (KLR)
  • Gitiha vs Farmers' Co-operative Society Limited
    (2022) KEELC 13664 (KLR)
  • Kimani Ruchine vs Swift Rutherford & Co. Ltd
    (1980) KLR
  • Arthi Highway Developers vs West End Butchery Limited and 6 Others
    (2015) KECA 816 (KLR)
  • Gabriel Mbui vs Mukindia Maranya
    (1993) eKLR
  • Benson Mukuwa Wachira vs Assumption Sisters of Nairobi Registered Trustees
    (2016) eKLR
  • Jasbir Singh Rai & Others vs Tarlochan Rai & Others
    (2014) eKLR
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act (claim for registration as proprietor by adverse possession); Environment and Land Court jurisdiction over land claims

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, "Malakwen & another v Rongoei (Enviromental and Land Originating Summons E003 of 2022) [2026] KEELC 1063 (KLR)", Case Analysis (2026). ELC Case No. E003 of 2022 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1063/eng@2026-02-26

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