Cheboi v Cheruiyot & 4 others

respondent, Helena Soti Cheruiyot, it was deponed that the land originally belonged to one Chemitei Masirget (deceased). 4. The 1st respondent claimed that the deceased had adopted her husband, Anthony Cheruiyot (deceased) when he was two years old. She added that she and her late husband had initially occupied the land with the permission of the late Chemitei Masirget, but their possession turned adverse upon the death of Chemitei Masirget. 5. By a judgement dated 9th March 2022, the ELC at Eldoret (S.M. Kibunja, J.) found that the title of the late Chemitei Masirget and his successors became extinguished in 1989 by operation of the law. The trial court held that the registration of the appellant, Charles Yator Cheboi as proprietor did not confer good title because at the time of registration, the title of the original proprietor had been extinguished, and there was therefore no title to pass to the appellant. 6. The 5th respondent, the Land Registrar, Elgeyo Marakwet County was directed to rectify the register, by cancelling the registration of the appellant and registering the 1st respondent as proprietor and trustee for her children with the late Anthony Cheruiyot, including Dickson Cheruiyot, Samuel Kipkoech and Abraham Kosgei, the 2nd, 3rd and 4th respondents. 7. The appellant was aggrieved by the judgment of the ELC, hence this appeal. In his memorandum of appeal dated 21st June 2022, he cites the foundational ground that he was a bona de purchaser for value without notice. Relying on section 80 of the Land Registration Act, the appellant asserts that cancellation of a title must be on the basis of proof that the registration was unlawful. 8. The appellant complains that the original deceased proprietor was condemned unheard, as his personal representatives were not joined as parties to the suit. He adds that the respondents had not proved the ingredients of adverse possession. 9. This being a rst appeal, we are obligated to reconsider, reanalyze and re-evaluate the evidence and to draw our own conclusions, bearing in mind that we did not have the opportunity to see and hear the witnesses (see Selle & Another vs Associated Motor Boat Co. Ltd [1968] EA 123 and Williamson Diamonds Ltd vs Brown [1970] EA 1). 10. The 1st respondent, Helena Soti Cheruiyot and the 2nd respondent, Dickson Cheruiyot testied as PW1 and PW2 respectively. The 1st respondent told the trial court that her late husband, Anthony Cheruiyot was adopted by the original proprietor of the suit land, Chemitei Masirget (deceased). She testied that after getting married to Anthony Cheruiyot in 1974, they stayed on and utilized the land, even after the death of Chemitei Masirget. After the death of her husband, the 1st respondent continued living on the land. 11. According to the 1st respondent, a family meeting was held sometime in 2012, where she and her family were recognized as the bona de owners of the suit land. She testied that later in 2016, she learnt that the appellant had been registered as the proprietor of the property, exposing her and her family to the risk of eviction. 12. The 2nd respondent, Dickson Cheruiyot (PW2) testied that he was born in 1974, as the rstborn of the 1st respondent. He told the trial court that he was born on the suit land and that it is only the respondents who reside on the land. He added that the appellant occupies an adjacent parcel of land. 13. The respondents also called Benjamin Cheboi and John Cheboi who testied as PW3 and PW4. PW3, a neighbour to the respondents, conrmed that the respondents were in occupation of the suit land, which they had developed. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1889/eng@2026-09-25 2

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14. Before the trial court, the respondents tendered photographs to demonstrate that they were in occupation of the suit land, a copy of the green card and a certicate of ocial search. The green card issued on 27th October 2014, conrmed that the suit land comprising 6.0 hectares, was registered in the name of Chemitei Masirget on 27th March 1974, with a title deed being issued on 3rd September 2007. 15. The green card further revealed that on 14th April 2010, a restriction was registered on the property, with the explanation that the property was the subject of proceedings before the Land Disputes Tribunal at Kapsowar. The restriction was lifted on 27th February 2014, pursuant to a court order issued on 23rd April 2013 in Judicial Review No 16 of 2012. The certicate of ocial search dated 4th May 2016 revealed that the appellant was registered as proprietor of the suit property on 8th May 2016, with a title deed being issued on the same date. 16. The appellant, Charles Yator Cheboi opposed the respondents’ claim of adverse possession, by his replying adavit sworn on 3rd June 2016 and a further adavit sworn on 12th August 2016. He deponed that he was the registered proprietor of the suit property which he had bought from the sons of the late Chemitei Masirget. He claimed to have taken possession of the land, where he had erected a structure for his workers and was keeping domestic animals. 17. In his testimony before the trial court, the appellant, testifying as DW1, claimed to have brought the land in batches over time as follows; 2 acres on 11th September 2003, 5 acres on 3rd January 2011, 4 acres on 17th March 2012 and 4 acres on 10th February 2013, with a transfer being eected on 8th March 2016. He produced a copy of the title deed and copies of four (4) sale agreements under which he had purchased the suit land. 18. The rst agreement dated 11th September 2003 was between Thomas Kimitei and Joseph J. Mitei as vendors with the appellant as purchaser of two (2) acres of land at Kshs. 76,000. Of signicance, the parcel of land being purchased by this agreement was not indicated. The second agreement dated 3rd January 2011 was between Thomas Kiprop, John Kipkemei and Joseph Kipruto Mitei as vendors with the appellant as purchaser of ve (5) acres of land parcel No Moiben/Kimnai/387 for Kshs. 500,000. The third agreement dated 17th March 2012 was between Joseph Kipruto Mitei as vendor with the appellant as purchaser of four (4) acres of land parcel No Moiben/Kimnai/387 at Kshs. 520,000. The fourth agreement dated 10th February 2013, was between Thomas Kiprop Kimitei and Joseph Kipruto Mitei as vendors with the appellant as purchaser of four (4) acres of land parcel No Moiben/ Kimnai/387 at Kshs. 1,000,000. 19. The appellant asserted that he had bought the land pursuant to due process and had been in occupation since 2003. He testied that after purchasing the land, he entered and started using it and that is when the respondents also entered, built houses and started to interfere with his use of the land. 20. Thomas Kimitei and Chepkaitany Laduka testied as DW2 and DW3 respectively. DW2, a son of the late Chemitei Masirget testied that all members of the Masirget family had agreed to sell the land to the appellant. According to Kimitei, his late father had only allowed the 1st respondent’s late husband to plant potatoes on the land but had not given him the land. 21. He conceded that after the death of his father, the 1st respondent’s late husband continued to utilize the land for close to 20 years until his death in 1995. He, however, claimed that after the death of the 1st respondent’s husband, the family of the late Masirget allowed the 1st respondent to stay on the land for one more year, but she never left. 22. Chepkaitany Laduka (DW3), a cousin of the 1st respondent’s husband testied that he was not aware that the 1st respondent or her children lived on the suit land. He claimed that Anthony Cheruiyot, the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1889/eng@2026-09-25 3

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husband of the 1st respondent had a share of family land in Kipsoen, where he was buried and that under customary law, neither Anthony Cheruiyot nor his wife and/or his children could claim the property of Chemitei Masirget. 23. The appeal was heard before us on 10th June 2026 with learned counsel Mr. Cheptarus appearing for the appellant and learned counsel Mr. Omboto appearing for the 1st, 2nd, 3rd and 4th respondents. The parties relied on their submissions led in court, which were orally highlighted. No submissions were led on behalf of the 5th respondent. 24. In his submissions dated 4th June 2026, the appellant maintains that he obtained valid title over land parcel number Moiben/Kimnai/387 on 8th March 2016 prior to which date there had not been any disputes concerning the subject property. He contends that he was a purchaser for value, having followed all the legal processes in purchasing the land. He relies on 4 sale agreements between himself and the sons of the late Chemitei Masirget. 25. The appellant claims that the respondents lack legal standing to sue on behalf of the estate of Chemitei Masirget. He states after purchasing the land, he started utilizing it even though he lived on an adjacent piece of land. He maintains that possession and use of the suit land by the respondents was not as a result of trespass or non-authorization, but that it was by consent of the deceased proprietor, and later by the sons of the deceased and could not therefore pass as adverse possession. 26. The appellant cited the decisions in Mbira vs Gachuhi [2002] 1 EA 137 and Alfred Welimo vs Mulaa Sumba Barasa (CA No 186 Court in of 2011) in support of the proposition that a person seeking to acquire title through adverse possession must prove non-permissive or non-consensual, actual, open, notorious, exclusive and adverse use of the land by them or those claiming under them for the statutory period of 12 years or more, without interruption. 27. The appellant further relied on the decision of this Court in Wambugu vs Njuguna [1983] eKLR where the ingredients of adverse possession as a mode of acquiring title were set out as: the date of taking possession, whether the possession was known to the other party, the period of possession and that the possession was open and undisturbed for the requisite period of 12 years. 28. On their part, the respondents maintain that they had occupied the suit land for a period in excess of 12 years and that their stay was non-permissive, peaceful and without any interference. They submit that even after acquiring title over the land, the appellant did not take any steps to evict them or cause any interference with their continued occupation and use of the land. 29. In their submissions also dated 4th June 2026, they state that the trial court correctly adjudged the dispute on the basis of the evidence adduced before it. In support of the order cancelling the title issued to the appellant, the respondents rely on section 28 of the Land Registration Act, which empowers the court to order rectication of the register. 30. Relying on the decision in Mbira vs Gachuhi (supra) also cited by the appellant, the respondents contend that they had proved the ingredients of adverse possession being: open, continuous and exclusive occupation, hostile to the title of the registered owner for 12 years. 31. The respondents further cited the decision in Peter Mbiri Michuki vs Mwangi Mbiri Michuki [2015] eKLR where it was held that upon expiry of the statutory limitation period, the title of the registered owner is automatically extinguished, giving way to the adverse possessor to acquire equitable title, capable of perfection through registration. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1889/eng@2026-09-25 4

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32. Additionally, the respondents made reference to this Court’s decision in Njoroge vs Mungai [2022] eKLR where it was armed that adverse possession which is open, continuous, exclusive, and hostile over the requisite period, can defeat a registered title. 33. The respondents assert that they had proved the ingredients of adverse possession as provided under sections 7, 13 and 17 as read with section 38(1) of the Limitation of Actions Act. 34. With respect to proof of adverse possession, the respondents aver that they had been in continuous, notorious and visible occupation of the suit land since the death of the original proprietor in 1977. The respondents take the view that computation of the 12-year period commenced from the date of the cause of action within the meaning of section 7 of the Limitation of Actions Act, being the year 1977 when the original proprietor died. Relying on the decision in Re Estate of Kimani Gichohi vs Mwangi Kimani [2018] eKLR they submit that they had developed and utilized the land over a period of more than 39 years. 35. In challenging the registration of the appellant as proprietor in 2016, the respondents submit that upon the extinguishing of the original owner’s title, there was no title capable of being transferred as adverse possession had crystalized in their favour. Relying on the decisions in Wanjiku Muhia vs Mwangi Muhia [2016] eKLR and Mwangi vs Mwangi [2019] eKLR the respondents make the case that the eect of registration in favour of the appellant was merely a conferment of title held in trust for them as adverse possessors. 36. In urging us not to upset the ndings by the trial court, the respondents cite the decision in Peters vs Sunday Post Limited [1958] EA 424 and Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982-88] 1 KAR for the proposition that an appellate court will only interfere with the ndings of a trial court if they are plainly wrong or where it is established that no reasonable tribunal could have made such ndings. 37. We have carefully considered the record of appeal and the submissions by the parties. A party claiming adverse possession must demonstrate that the possession has been notorious, without permission and uninterrupted for a period of more than 12 years. In its decision in Wilson Kazungu Katana & 101 Others vs Salim Abdalla Bakshwein & Another [2015] eKLR this Court stated thus: From all these provisions, what amounts to adverse possession? First, the parcel of land be registered in the name of a person other than the applicant, the applicant must be in open and exclusive possession of that piece of land in an adverse manner to the title of the owner, lastly, he must have been in that occupation for a period in excess of twelve years having dispossessed the owner or there having been discontinuance of possession by the owner…” 38. We note that the trial court found that the respondents formally took possession of the suit land upon the death of Chemitei Masirget in1977; they cultivated, maintained and exclusively occupied the land for a continuous period of 39 years before the suit was led in 2016, no action was taken by the original owner or his estate to recover the land within the 12-year limitation period, and the respondents’ possession was open, visible and notorious. 39. The trial court further established the following facts as undisputed: that the late Anthony Cheruiyot had lived with the late Chemitei Masirget on the suit land as a child and upon growing up he got married to the 1st respondent with whom he bore children, including the 2nd, 3rd and 4th respondents, that the respondents continued to live on the land even after the passing on of Chemitei Masirget and later Anthony Cheruiyot, who lived on the suit land until his death in 1995. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1889/eng@2026-09-25 5

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40. In determining the dispute, the learned Judge of the ELC began by acknowledging that: “ …adverse possession is a limitation of civil action, meaning [that] where the conditions creating such adverse possession exist, then whoever has the right to claim title to the suit property, so adversely occupied gets precluded from ever raising a claim to the property. It is for this reason that the court in Benjamin Kamau Murima & others vs Glayds Njeri, C.A 213 of 1996 which is cited in Ruth Wangari Kanyagia vs Josephine Muthoni Kinyanjui [2017] eKLR, a decision that was cited by the Applicants stated that: The combined eect of the relevant provisions of sections 7, 13 and 17 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya is to extinguish the title of the proprietor of land in favour of an adverse possessor of the same at the expiry of 12 years of adverse possession of that land”. Therefore, adverse possession begins once the possessing party’s presence on the property in question, is against the interests of whoever has title or a right to claim title of the property.” 41. Having established the foregoing, the learned trial Judge proceeded to determine when time began to run in favour of the respondents. The 1st respondent had urged the trial court to reckon the eective year of her adverse possession of the suit land as 1976, when she got married to the late Anthony Cheruiyot, who was already on the land. 42. The learned trial Judge considered the entire evidence placed before him by the parties; DW2, the rstborn son of the late Chemitei Masirget, testifying on behalf of the appellant, placed the date of the 1st respondent’s entry into the suit property as late 1970s. DW3, who witnessed the marriage between Anthony Cheruiyot and the 1st respondent, gave the year of the marriage as 1975. On the strength of this evidence, the learned trial Judge concluded that 1976 was an acceptable eective year of the 1st respondent’s entry into the suit land. 43. It was however uncontested that the 1st respondent’s late husband, Anthony Cheruiyot had initially lived on the suit land, on the invitation of the late Chemitei Masirget. The trial court therefore concluded, and we agree, that the 1st respondent’s presence on the suit land, during the lifetime of the late Chemitei Masirget was by extension, with his permission. The respondents stated, and there was no evidence to the contrary, that Chemitei Masirget died in the year 1977. 44. After the death of Chemitei Masirget, the suit property formed part of his estate, available for devolution through succession proceedings, but his family did not take any action and because the permission granted by the late Chemitei Masirget lapsed upon his death, the continued stay by the 1st respondent and his family turned adverse and time began to run from that point. From the evidence on record, the family of the late Chemitei Masirget, which was entitled to the suit property after his death, did not take any action to extend permission to the respondents to continue staying on the suit property. 45. DW2, the rstborn son of the late Chemitei Masirget conrmed that as at the time of Masirget’s death, the late Anthony Cheruiyot had been in occupation of the suit property for close to twenty (20) years. Taking into account the nding that Chemitei Masirget died in 1977, it would follow that by the time Anthony Cheruiyot died in 1995, he and his family had been in adverse occupation of the suit land for at least eighteen (18) years. 46. Further, the title of the late Chemitei Masirget over the suit land became extinguished at the expiry of 12 years, following his death in 1977. Even if one were to believe the unsupported claim by DW2 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1889/eng@2026-09-25 6

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that permission to stay on the suit land had been granted to the 1st respondent and her family in 1995, after the death of Anthony Cheruiyot for only one year, the conclusion remains that by this time, the respondents had been in adverse possession for over 18 years. Pursuing the line taken by DW2 that the permission granted to the respondents was for only one year thus terminating in 1996, it follows that by the time the suit was led at the ELC in 2016, a further 20 years of non- permissive occupation by the respondents had gone by. 47. The conclusion at this point is that even if the title of the late Chemitei Masirget had not been extinguished during the rst non-permissive occupation from 1977 to 1995 during the lifetime of Anthony Cheruiyot, it surely became extinguished upon the lapse of 12 years after 1996 when the alleged one- year permission was granted to the respondents; this would have been 2008. The start-o point of running of time cannot therefore be 2016 as alleged by the appellant. It has to be the time when the occupation became non-permissive. 48. Having re-evaluated the evidence, we agree with the nding by the learned trial Judge that after the death of Chemitei Masirget, his family did not exercise their right over the suit property and that after 1989, they were forever barred from claiming any legal right over the suit land, because the title of the registered proprietor had been extinguished by operation of the law, as the respondents were already in adverse possession. This is by dint of section 7 of the Limitation of Actions Act which provides that: 7. An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it rst accrued to some person through whom he claims, to that person. 49. Flowing from the foregoing, the family of the late Chemitei Masirget had no right to sell the suit property to the appellant, or to any other person, as they had no title to pass to any third party. Members of the family, including DW2 and his two brothers, who were named as vendors in the four sale agreements produced before the trial court, had no title to the suit property after 1989, and could not therefore sell the land or parts thereof nor pass good title over the said land to the appellant in 2016. 50. As held by this Court in its decision in Mtana Lewa vs Kahindi Ngala Mwagandi [2015] eKLR a title of a registered owner is extinguished by operation of the law upon expiry of the limitation period and a title deed that is issued subsequently does not revive the extinguished title. In that case, the registered owner holds the land in trust for the adverse possessor. 51. The facts of the case giving rise to this appeal are on all fours with Mtana Lewa vs Kahindi Ngala Mwagandi (supra). Accordingly, we arm the nding by the learned trial Judge that the appellant’s registration as proprietor of the suit land in 2016, when ownership of the land had already passed to the 1st respondent’s family, by operation of the law, means that the appellant holds the title in trust for the 1st respondent and her family. 52. Ultimately, this appeal fails and is dismissed with the result that the judgment of the ELC dated 9th March 2022, and all consequential orders are armed. 53. The ELC considered the issue of costs and nally adjudged that each party should bear their own costs, on the basis of how the appellant found himself in the quagmire of the dispute. The rule of thumb is that costs follow the event, unless there are exceptional circumstances to be considered. We would agree with the reasoning of the learned trial Judge in this regard, and therefore direct that each party will bear their costs both in the trial proceedings and in the appeal. DATED AND DELIVERED AT ELDORET THIS 25TH DAY OF SEPTEMBER, 2026. M. GACHOKA C.Arb, FCIArb https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1889/eng@2026-09-25 7

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…………………….………….. JUDGE OF APPEAL W. KORIR …………………….………….. JUDGE OF APPEAL L.M. NDOLO …………………….………….. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1889/eng@2026-09-25 8

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