Chemutai (Suing as Legal Representative of the Estate of the Late Prisca Chepkonga) v Chemoiywo & 2 others (Civil Suit E003 of 2023) [2026] KEELC 1864 (KLR)
The bottom line
#A Kenyan court declared a woman who fenced and used two land parcels for over 12 years their lawful owner through adverse possession.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff was in adverse possession of the suit properties for over 12 years
Yes - the court found the plaintiff's possession exceeded 12 years and she was entitled to be declared owner of parcels 1241 and 2028
The court found that although the defendants were registered proprietors, they had no use or control of the land; their evidence of villagers grazing with permission was less plausible than the plaintiff's evidence of exclusive possession. The mature trees planted by the plaintiff round the properties, and the fencing of the suit properties, demonstrated animus possidendi and possession for a period exceeding 12 years. The defendants did not plead that the plaintiff's occupation was with their permission.
Whether the plaintiff's use was permissive such as to defeat adverse possession
No - the claim of permissive grazing by villagers was not pleaded against the plaintiff and did not negate her exclusive possession
The court held that the evidence did not support permission but rather acquiescence to unauthorised use or discontinuance of use by the owners. Unlike other villagers, the plaintiff fenced the land, showing intention to possess as her own. The defendants did not plead that the plaintiff's use was with their permission.
Whether the court could grant the prayers despite directions under Order 37 not having been taken
The matter proceeded to full hearing on the parties' compliance with Order 11 directions and oral evidence, and the prayers were granted
The court noted that directions for disposal of the originating summons under Order 37 Rules 16, 17 and 18 were apparently never taken, but the parties were directed to comply with Order 11, filed witness statements and lists of documents, and the suit was heard orally with a site visit. The court nonetheless determined the claim on the evidence and granted the prayers sought.
Legal principles established
#- Adverse possession requires possession that is not by force, stealth or licence, and adequate in continuity, publicity and extent
- A claimant must prove exclusivity of possession and, where the land is under joint use, identify the portion exclusively occupied
- Erecting a fence all round land in dispute demonstrates animus possidendi
Court orders
#- 1.Declaration that the plaintiff is the owner of parcels of land known as Baringo Sergonjun/1241 and Baringo Sergonjun/2028 by adverse possession
- 2.Grant of all prayers sought in the amended originating summons dated 29th April, 2013, including transfer of the suit properties to the plaintiff, failure of which the Deputy Registrar to execute the documents
- Jurisdiction invoked
- Original jurisdiction under the Civil Procedure Rules (Order 37) in adverse possession claims; the judgment does not invoke a specific constitutional provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chemutai (Suing as Legal Representative of the Estate of the Late Prisca Chepkonga) v Chemoiywo & 2 others (Civil Suit E003 of 2023) [2026] KEELC 1864 (KLR)", Case Analysis (2026). Originating Summons dated 12th October, 2006 (amended on 29th April, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1864/eng@2026-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.