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ELCAllowedEnvironmental and Land Originating Summons E016 of 2025· [2026] KEELC 6165 (KLR)
Too v Tongoi
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·~8 min to read original · ~4 min briefThe bottom line
#A Kenyan court handed a farmer ownership of land he bought and cultivated for over 12 years, even though the title deed stayed in the seller's name.
What this practically means
#Executive summary
#The plaintiff, Samuel Kipkemboi Too, brought an undefended originating summons under sections 7, 17, 30 and 38 of the Limitation of Actions Act seeking a declaration that the defendant's right to recover a portion measuring approximately 0.0551 acres out of Land Parcel Number Nandi/Kombe/675 was barred, that the defendant's title over the portion was extinguished, and that the plaintiff be registered as proprietor in place of the defendant. The plaintiff claimed he purchased the portion from the defendant in 1992, took possession, and had openly, peacefully and continuously occupied and cultivated it for over twelve years without eviction or interruption. The originating summons was converted to a plaint by court direction and heard by viva voce evidence. The plaintiff (PW1) testified relying on a certificate of official search and a 1992 letter evidencing occupation; PW2, John Kiptarbei Rono, corroborated that PW1 possessed and cultivated a 30 ft by 80 ft portion, growing maize. Applying the three-part test in Wilson Kazungu Katana vs Salim Abdalla Bakshwein - registration in another's name, open and exclusive adverse possession, and occupation exceeding twelve years - the court found all ingredients established. The land was registered in the defendant's name; the plaintiff's cultivation constituted possession; and possession from 1992 ripened into adverse possession in 2004, extinguishing the defendant's rights. Judgment was entered for the plaintiff in terms of the originating summons, including registration/rectification of the register, an order for execution of transfer documents with a default power vested in the Deputy Registrar, and costs to the defendant.
Key legal issues
#01
Whether the plaintiff acquired the 0.0551-acre portion of Nandi/Kombe/675 by adverse possession
Holding
Yes. The plaintiff bought and took possession of the definite portion in 1992, was in open, exclusive and uninterrupted cultivation, and his possession ripened into adverse possession after 12 years in 2004, extinguishing the defendant's title.
Reasoning
The court applied the Katana three-part test: the land was registered in the defendant's name; the plaintiff was in open and exclusive possession through cultivation; and occupation ran from 1992 uninterrupted, exceeding twelve years. The claim was over a definite portion, and the defendant, though registered, was not in possession and had been dispossessed. The claim was unchallenged and cogent.
p. 4
Legal principles established
#- Adverse possession requires: land registered in another's name; open and exclusive possession adverse to the owner's title; and occupation in excess of twelve years having dispossessed the owner or following discontinuance of possession by the owner.
- Possession for adverse possession can take different forms including fencing and cultivation of the suit land.
- A claim over a definite, ascertainable portion of land is maintainable in adverse possession.
Court orders
#- 1.A declaration that the defendant's right to recover the portion measuring approximately 0.0551 acres out of Land Parcel Number Nandi/Kombe/675 is barred under the Limitation of Actions Act Cap 22, and title over the portion in the plaintiff's occupation is extinguished
- 2.An order that the plaintiff be registered as proprietor of the portion measuring approximately 0.0551 acres out of Nandi/Kombe/675 in place of the defendant and/or the register be rectified to reflect the plaintiff's ownership
- 3.The defendant to execute all requisite transfer documents; in default, the Deputy Registrar and/or court's administrative officer at liberty to execute such documents to give effect to the judgment and/or decree
- 4.Costs of the Originating Summons to be borne by the defendant
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act; suit brought under sections 7, 17, 30 & 38 of the Limitation of Actions Act (Cap 22) and Order 37 rules 7 & 8 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Too v Tongoi", Case Analysis (2026). Environmental and Land Originating Summons E016 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6165/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.