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ELCPartially AllowedKAPSABET ELCLC NO. E013 OF 2025

Jemeli v Karoney & 2 others (Environment and Land Case E013 of 2025) [2026] KEELC 3173 (KLR)

Environment and Land Court
20 May 2026
1,488 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A woman who farmed one acre of land for nearly 30 years won ownership through adverse possession, though her claim for damages failed.

What this practically means

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Executive summary

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The plaintiff sued by plaint dated 24 April 2025 seeking a declaration that she is entitled to be registered as proprietor of one acre excised from land parcel Nandi/Kombe/894 by virtue of a 1996 sale agreement with the late Kiprop Karoney and a 2010 Land Control Board consent, or alternatively by adverse possession; an order directing the 3rd defendant to survey, subdivide and register the acre in her name; a permanent injunction against interference with her possession and tea harvesting; and general and special damages for trespass said to have begun in November 2024. The defendants, though duly served, did not enter appearance or file a defence, and on 2 December 2025 the court directed the suit to proceed as undefended by way of formal proof. PW1, the plaintiff, testified that she bought the acre in 1996, planted tea bushes in 1997 and harvested them continuously until the 1st defendant demanded she produce the sale agreement (which had been lost) or vacate. Applying Gatimu Kinguru and Githu v Ndeete on the requirement of a definite portion, Wilson Kazungu Katana on registration in another's name, and section 28(h) of the Land Registration Act on overriding interests, the court found the plaintiff had acquired the acre by adverse possession and/or constructive trust. Judgment was entered for the plaintiff on the declaration, subdivision/registration and injunction orders, with costs to the defendants. However, general and special damages were refused because special damages were not distinctly pleaded and proved, following Eric Adome and Kuria Kiarie.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiff has established ownership of one acre of land parcel Nandi/Kombe/894 by adverse possession and/or constructive trust arising from the 1996 sale agreement and the 2010 Land Control Board consent
  2. 2.Whether the plaintiff is entitled to a permanent injunction restraining the 1st and 2nd defendants from interfering with her possession of the one acre
  3. 3.Whether the plaintiff is entitled to general and special damages for trespass and loss of tea income

Key legal issues

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01

Adverse possession of a defined portion of registered land

Holding

The plaintiff proved adverse possession of a well-defined one-acre portion, having taken possession in 1996, planted tea in 1997 and remained in continuous peaceful possession until November 2024, well beyond the limitation period

Reasoning

The court relied on Gatimu Kinguru v Muya Gathangi for the requirement that a claimant identify a definite portion of land, and Wilson Kazungu Katana for the requirement that the land be registered in another's name. Possession took the form of planting and harvesting tea, a mode of possession recognised in Titus Ong'anga Nyachieo. By dint of the Land Control Board exhibits, the plaintiff acquired the acre by adverse possession and/or constructive trust.

p. 8
02

Permanent injunction and damages in an unchallenged claim

Holding

A permanent injunction issued in line with Nguruman Ltd v Jean Bonde Niel and section 13(7) of the Environment and Land Court Act, but no damages were awarded because special damages were not distinctly pleaded and proved

Reasoning

The court applied the Nguruman principles for a permanent injunction together with section 13(7) of the Environment and Land Court Act on permanent preservation orders. Although the plaintiff's case was unchallenged, following Eric Adome and Kuria Kiarie, the court held that special damages must be distinctly pleaded and proved, and declined to award any damages.

p. 8
03

Proof in an undefended suit proceeded by formal proof

Holding

The plaintiff's unchallenged evidence, tested on a balance of probabilities, proved the case against the defendants who failed to enter appearance or file defence

Reasoning

The defendants were duly served as shown by affidavits of service but opted not to enter appearance or file a defence; the court directed the suit to proceed as undefended by formal proof, citing Ogada v Mollin. The plaintiff's evidence remained unchallenged per Linus Nganga Kiongo v Town Council of Kikuyu, and the court applied the balance-of-probabilities standard from Kirugi v Kabiya to find the case proved.

p. 9

Legal principles established

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  • A definite portion of land is an important and integral part of proving an adverse possession claim
  • For adverse possession, the parcel of land must be registered in the name of a person other than the applicant
  • Registration of land can be challenged by way of overriding interests including adverse possession and trusts under section 28(h) of the Land Registration Act
  • Special damages must be distinctly pleaded and proved before an award can be made

Court orders

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  1. 1.A declaration that the plaintiff is entitled to be registered as proprietor of one (1) acre excised from land parcel Nandi/Kombe/894 by virtue of the 1996 sale agreement and 2010 Land Control Board approval, or alternatively by adverse possession
  2. 2.An order directing the 3rd defendant to survey, subdivide the suit land and register the plaintiff's one acre in her name
  3. 3.A permanent injunction restraining the 1st and 2nd defendants, their agents, servants or assigns, from interfering with the plaintiff's possession, use and enjoyment of the one acre, including harvesting of tea bushes
  4. 4.Costs of the suit awarded to the plaintiff against the defendants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court Act, 2015 - section 13 (7) invoked on permanent preservation orders; suit commenced by plaint under the Civil Procedure Act (Cap 21)

Relief refused

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General and special damages for trespass and loss of tea income

Special damages were not distinctly pleaded and proved

p. 8

Costs

Costs follow the event; the defendants to bear the costs of the suit, per section 27(1) of the Civil Procedure Act and Jasbir Singh Rai & others vs Tarlochan Rai & others (2014) eKLR

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

By dint of PExhibits 1 , 2 and 3, the plaintiff has acquired the one acre of the suit land by adverse possession and or constructive trust.
p. 8acquisition of a defined portion by adverse possession and constructive trust
that a definite portion of land is an important and integral part of process of proving adverse possession claim
p. 6requirement of a definite portion in adverse possession claims
However, special damages not distinctly pleaded and proved and coupled with the circumstances, the plaintiff is not entitled to any damages herein.
p. 8refusal of damages for failure to plead and prove special damages
Thus, judgment is hereby entered for the plaintiff against the defendants jointly and severally orders (a) (b) (c) as stated in paragraph 1 (a) (i) or/alternatively (ii). (b) and (c) hereinabove
p. 9final orders - judgment for the plaintiff
the defendants to bear the costs of this suit.
p. 9costs order

Issues in the judgment

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minor

The judgment does not print the names of the defendants in the text provided; the coram listing of parties is absent, so the defendants are identified only by role numbers

minor

The disposition paragraph is garbled, repeating '(b) and (c)' and mixing the relief headings so the exact orders entered are ambiguous

minor

Internal inconsistency on the year of the Land Registration Act cited as '2016 (2012)'

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, "Jemeli v Karoney & 2 others (Environment and Land Case E013 of 2025) [2026] KEELC 3173 (KLR)", Case Analysis (2026). KAPSABET ELCLC NO. E013 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3173/eng@2026-05-20

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