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ELCDismissedELC Case No. 32 of 2019 (OS)

Kenduiwo v Terer (Environment and Land Case 32 of 2019) [2026] KEELC 3840 (KLR)

Environment and Land Court
18 June 2026
10,678 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~43 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that you cannot claim someone's land through adverse possession if you are close relatives on ancestral family land.

What this practically means

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Executive summary

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The Plaintiff, Norah Kenduiwo, filed an Originating Summons dated 8th May, 2019 under Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, seeking a declaration that she had acquired 0.6070 Hectares of land parcel No. Kericho/Itembe/924 in Bomet County by adverse possession, an order registering her as proprietor, and that the Deputy Registrar execute the necessary transfer documents. She claimed she took possession of the portion in 1995, built homes, planted trees and crops, and remained in open, exclusive and uninterrupted possession for over twelve years through successive subdivisions of the original parcel Kericho/Itembe/734. The Defendant, her nephew and registered proprietor since 14th October, 2015, denied her occupation, contending that only her son Charles entered a small portion in 2017, that she lives in Keben/Kapkesosio, and that the land is ancestral family land where their common relatives are buried. After a full viva voce hearing, the court framed three issues and found the undisputed fact that the Plaintiff is the Defendant's aunt, born and raised on the parcel, decisive. Following the Court of Appeal in Kihamba v Mbaisi, the court held that adverse possession cannot apply within families against close relatives, as that would create havoc for families and Kenyan society, and found it absurd to apply the doctrine on these facts. The suit was dismissed with each party bearing their own costs, the court noting the parties' close relationship and its intent that their fractured relations be mended.

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 acquired a 0.6070 acre portion of land comprised in land parcel No. Kericho/Itembe/924 by way of adverse possession
  2. 2.Whether the prayers sought in the Originating Summons should be granted
  3. 3.Who should bear costs of the suit

Key legal issues

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01

Whether the Plaintiff acquired a portion of land parcel No. Kericho/Itembe/924 by adverse possession

Holding

The claim fails because the doctrine of adverse possession does not apply between close relatives on ancestral land

Reasoning

The court accepted as undisputed that the Plaintiff is the Defendant's aunt, being the sister of the Defendant's deceased father, and that both were born and raised on the suit parcel, part of their ancestral land. Relying on the Court of Appeal decision in Kihamba v Mbaisi, the court held that applying adverse possession within families against close relatives would create havoc for families and Kenyan society generally, and found it absurd to apply the doctrine on these facts.

p. 72
02

Whether the prayers in the Originating Summons should be granted

Holding

The prayers cannot be granted given the failure of the adverse possession claim

Reasoning

Having found that the Plaintiff's claim of adverse possession fails on account of the familial relationship, the court held that the declaratory, registration and execution prayers in the Originating Summons could not be granted.

p. 74
03

Who should bear costs of the suit

Holding

Each party to bear own costs despite the general rule that costs follow the event

Reasoning

Although Section 27 of the Civil Procedure Act ordinarily awards costs to the successful party, the court directed each party to bear own costs because the parties are close relatives and the court wished to help mend their fractured relationship.

p. 75

Legal principles established

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  • To be entitled to land by adverse possession, a claimant must prove exclusive, open and uninterrupted possession as of right for 12 years, either after dispossessing the owner or by discontinuation of possession by the owner
  • The doctrine of adverse possession does not apply within families against close relatives
  • Costs follow the event under Section 27 of the Civil Procedure Act, but a court may, for good reason, direct otherwise

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.Each party shall bear own costs of the suit

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules

Relief refused

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Declaration that the Plaintiff has become entitled by adverse possession to 0.6070 Hectares of land parcel No. Kericho/Itembe/924

The court held the doctrine of adverse possession does not apply between close relatives; the parties are aunt and nephew and the land is ancestral land

p. 72

Order that the Plaintiff be registered as proprietor of 0.6070 Hectares of land parcel No. Kericho/Itembe/924

It followed from the failure of the adverse possession claim that the prayers could not be granted

p. 74

Order that the Deputy Registrar execute documents to facilitate registration of the Plaintiff as absolute proprietor

Same failure of the adverse possession claim

p. 74

Costs

Each party shall bear own costs of the suit

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.

it would create havoc for families and the society of Kenya generally if the principle of adverse possession applied within families against close relatives.
p. 71adverse possession - familial relationships
On account of this close relationship it would be absurd to find that the Plaintiff has acquired a portion of the suit parcel of land by way of adverse possession.
p. 72disposition of adverse possession claim
In the result, I find that the Plaintiff's suit lacks merit and it is hereby dismissed.
p. 74final orders - dismissal
Each party shall bear own costs of the suit. This is because the parties to this suit are close relatives and this Court is intent in ensuring that the already fractured relation between them is mended and does not disintegrate any further.
p. 75final orders - costs
In order to be entitled to land by Adverse Possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right without interruption for a period of 12 years either after dispossessing the owner or by discontinuation of possession by the owner on his own volition
p. 67elements of adverse possession (Kasuve v Mwaani Investments)

Issues in the judgment

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minor

The judgment is internally inconsistent on the size of the portion claimed - the Originating Summons and prayers claim 0.6070 Hectares but the pleadings and submissions elsewhere describe the portion as 0.6070 acres / 1.55 acres while the Defendant's evidence puts the whole parcel at 0.79 Ha

minor

The Chief's summons letter dated 3rd May, 2018 (Exhibit D2) is recorded as summoning Paul Rono to appear on 7th May, 2008, an apparent typographical inconsistency in the year

minor

The identity of PW2 is inconsistently recorded - the green card certification refers to J.K Ngeno while DW1 testified the person who testified as PW2 was David Meli and not the area Chief, and the summary refers to the witness as 'Daniel Kipngetich Meli' while DW2 referred to 'David Meli'

minor

The green card for land parcel No. Kericho/Itembe/773 is recorded as closed for subdivision into parcels 921, 930, 935 and 936, whereas the Plaintiff's submissions say it was subdivided into Kericho/Itembe/924, 930, 935 and 936

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, "Kenduiwo v Terer (Environment and Land Case 32 of 2019) [2026] KEELC 3840 (KLR)", Case Analysis (2026). ELC Case No. 32 of 2019 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3840/eng@2026-06-18

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