Maritim v Korir (Enviromental and Land Originating Summons E003 of 2024) [2025] KEELC 8337 (KLR)

and continuously been in occupation and possession of the aforesaid land parcel for a period exceeding 12 years. 4. b. That there be an order that the Plaintifi be registered as the proprietor of the suit land in place of the Defendant and/or the register thereof be rectified to refiect the Plaintifi’s ownership of the suit land. c. That the defendant herein be ordered to execute all the requisite papers necessary to have the Plaintifi be registered as owner of portion the suit land. d. Costs of the suit to be borne by the Defendant. e. Such further and/or other orders be made as the Court may deem fit and expedient in the circumstances of this case. The originating summons is premised upon the Plaintifi’s 13-paragraphed supporting afidavit and eight grounds which include; a. The Plaintifi has peacefully and openly occupied and cultivated the portion of the suit land for uninterrupted duration exceeding 12 years with efiect from 1972, and has thus acquired ownership of it by way of prescription and/or adverse possession. b. That the Defendant herein is the registered owner of the suit land. c. That the Defendant holds the title in trust in favour of the Plaintifi by operation of the law. 5. In a nutshell, the Plaintifi’s case is that in the year 1972 or thereabout, her husband, Tirop Seurei Maritim (Deceased-1) purchased five acres out of the suit land from it’s original owner, Kipkorir Arap Tarno (Deceased-2 ) who received full purchase price, survey carried out including demarcation and beacons installed thereof. That in 1992, Deceased-2 clarified at a meeting, the ownership of the suit land and that he had no claim over the same. That after the death of Deceased-2 in 1996, the alleged dependants including the Defendant, raised concerns over ownership of the suit land which the Plaintifi has possessed and occupied openly, peacefully and continuously for over 30 years hence, precipitating the present suit. 6. The Defendant was duly served as disclosed in the afidavits of service sworn on 22nd May 2025 and 11th November 2025 herein. However, he opted not to enter appearance or file statement of defence as observed in the case of Ogada-vs-Mollin (2009) eKLR. 7. The suit was heard ex-parte pursuant to the application by way of chamber summons dated 12th December 2025 that was allowed accordingly. 8. The Plaintifi (PW1) aged 99 years relied on her supporting afidavit to the originating summons and list of documents of even date serial Numbers 1, 2 3 and 4 being copies of green card, certificate of oficial search, agreement and Limited Grant of Letters of Administration Ad Litem (P Exhibits 1, 2, 3 and 4 respectively) as part of her testimony. She besought the court to grant the prayers set out on the face of the originating summons. 9. According to PW2, Abdarahman Kibitok, a neighbour to both PW1 and the Defendant, fives acres being a portion of the suit land is possessed and occupied by PW2 since 1972 without any interruption. He relied upon his statement dated 30th May 2024 as part of his evidence. 10. The third witness, a village elder, Jacob Kiptoo Kirarei (PW3) relied on his statement dated 30th May 2024 as part of his testimony. He stated that PW1 and her family have occupied the portion of the suit land continuously. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8337/eng@2025-11-26 2

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11. Learned Counsel for the Plaintifi filed submissions dated 20th November 2025 making reference to the originating summons in entirety, sections 7 and 38 of the Limitation of Actions Act Cap 22 Laws of Kenya and delineated two issues relating to the Plaintifi’s acquisition of the suit land by adverse possession and costs of the suit. Counsel cited the case of Wilson Kazungu Katana and 101 others-vsSalim Abdalla Bakshein and another (2015) eKLR where the Court of Appeal outlined the criteria for acquisition of title under Adverse possession doctrine. That PW1 has possessed and occupied the portion of the suit land since 1972 and has witness statements to attest thereto. 12. Further, Counsel cited the case of Kinyanjui-vs-Kariuki {2025{ KEELC 3710 (KLR) alongside the case of in Mtana Lewa-vs-Kahindi NgalaMwangandi (2015) eKLR regarding the definition of adverse possession. Counsel submitted that the Defendant’s actions over the suit land are unwarranted, calculated at denying the Plaintifi her right to the same and delay the course of justice thus, urged the court to grant the orders sought in the originating summons. 13. It is notable that Order 15 of the Civil Procedure Rules 2010 provides for framing of issues and materials from which issues may be framed. Further, it is established law that the issues for determination in a suit generally arise out of either the pleadings or as framed by the parties for the court’s determination; See Galaxy Paints Co Ltd-vs-Falcon Guards Ltd. (1999) eKLR. 14. Having considered the originating summons, the Plaintifi’s evidence and written submissions, the issues for determination are as set out on the face of the originating summons in line with the decision in Wilson Kazungu Katana case (supra), that adverse possession dictates that; a. The parcel of land in dispute must be registered in the name of a person other than the applicant, b. The Applicant must be in open and exclusive possession of that piece of land in an adverse manner to the title of the owner, c. The Applicant must be 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. 15. Additionally, the applicant must demonstrate that such possession was without the permission of the owner; see Richard W.Songoi -vs- Ben M. Songoi (2020) eKLR. 16. On the first dictate, the testimonies of PW1 and PW2 were that the Plaintifi’s claim is for a portion measuring approximately five acres of the suit land. Indeed, PW1 testified in part; ‘......The portion of land is five acres of the suit land reference Nandi/Chepnoet/558.’ 17. In that regard, the plaintifi’s claim is over a definite portion of the suit land; see also Muthuita –vsWanoe & 2 others (2008) 1KLR (G&F) 1024. 18. As at 18th January 1994, the suit land was registered in the name of Deceased-2 as shown in P Exhibit 2. The same got registered in the name of the defendant with efiect from 28th October 2022 as per P Exhibit1. 19. Regarding the second dictate, PW1 stated that she has possessed and occupied the portion of the suit land openly, peacefully and continuously. Her testimony was corroborated by PW2, her neighbour. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8337/eng@2025-11-26 3

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20. Notably, PW2 testified, inter alia; ‘........The suit land reference Number Nandi/Chepnoet/558 measuring 5 acres possessed and occupied by PW1 since 1972 without interruption.......’ 21. As regards the third dictate, the testimonies of PW1, PW2 and PW3 are in line with Kinyanjui, Lewa and Katana cases (all supra) that the Plaintifi is on the suit land is by adverse possession to the right of the registered owner, the Defendant. In the case of Mbugua Njuguna-vs-Elijah Mburu Wanyoike (2004) KECA 92 (KLR), the Court of Appeal stated; ‘The appellant was not claiming the land through a contract of sale..........he was put in exclusive possession of the 4 acres through a contract of sale which was not specifically performed and since then his possession of the 4 acres was adverse to the right of the registered owner.’ 22. It has therefore, emerged that the defendant has been dispossessed from the five acres of the suit land. In the case of Elijah O.L Opar-versus-Tobias Odhiambo Abach (2019) eKLR at page 6, the Court of Appeal observed“ …evidence suficient to prove on a balance of probabilities that he had entered upon the subject land openly, peacefully, without permission of Opar, and had continued in such possession for an uninterrupted period of at least 12 years thereby dispossessing Opar and extinguishing his right and title thereto. These are the ingredients of adverse possession……” (Ingredients eemphasized) 23. Furthermore, at ground (e) of the originating summons and paragraph 11 of the plaintifi’s afidavit in support of the summons, constructive trust is disclosed further to order Number 5 sought in the said pleading and the decision in Odd Jobs-vs-Mubia (1970) EA 476 on issues in a case. So, the principles of equity and in particular, constructive trust apply in favour of the plaintifi against the defendant in view of the agreement and Ad Litem (P Exhibits 3 and 4 respectively) and the decision in Mbugua Njuguna case (supra) being guided by the Court of Appeal decision in Willy Kitilit-vs-Michael Kibet {2018} KECA 573 (KLR) and Article 10 (2) (b) of the Constitution of Kenya 2010 on the principles of equity in the circumstances. 24. It is settled law that the burden is always on the party bringing the suit to prove their case on a balance of probabilities. This burden is not lessened even if the case is heard by way of formal proof; see Kirugi & another-vs-Kabiya & 3 others (1987) eKLR. 25. In the case of Nganga Kiongo & 3 others-vs- Town Council of Kikuyu (2012) eKLR, Odunga J (Now, J A) held that the Plaintifis had given evidence on oath and the defendant failed to present evidence to counter it. That therefore, the claim was uncontroverted, unchallenged and likely to succeed on a balance of probabilities. 26. In this suit, the plaintifi’s claim for adverse possession and constructive trust in respect of five acres of the suit land against the defendant is uncontroverted and established on a balance of probability. 27. Wherefore, Judgement is hereby entered for the Plaintifi against the defendant in terms of prayers 1, 2, 3, 4 in the originating summons dated 30th May 2024 and that the Defendant holds the five acres of the suit land in trust for the Plaintifi by dint of prayer Number 5 in the said summons as set out in paragraph 3 (a) to (e) hereinabove. 28. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8337/eng@2025-11-26 4

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DATED AND DELIVERED AT KAPSABET THIS 26TH DAY OF NOVEMBER 2025 HON. G M A ONGONDO JUDGE In the presence of; Ms Chumba learned counsel for the Plaintifi Walter, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8337/eng@2025-11-26 5

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