Korgorin v Kikwai & 2 others (Environment and Land Appeal E003 of 2025) [2026] KEELC 1385 (KLR)

2. In the subordinate Court, the Appellant filed a suit against the Respondents herein vide the Plaint dated 18th April, 2023 wherein he sought the following orders; a. An order of restraining Permanent the injunction Defendants from interfering with the Plaintiff’s quiet possession and trespassing on land registered as Kericho/Kapsimbiri/ 464. b. To vacate and/or handover vacant possession of Kericho/Kapsimbiri/464 to the Plaintiff Dickson Kipkirui Korgorin with immediate effect. c. Mesne profits from the date of expiry of the date of occupation of the parcel of land till possession is delivered up to the Plaintiff. d. General damages for violation of the Plaintiff's right to quiet possession. e. Interest thereon. f. Costs of this suit, and g. Any other relief the Court deems fit to grant. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 2 of 47

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3. The Respondents filed their Statement of Defence and Counterclaim dated 30th May, 2023 wherein they denied the averments in the Plaint. In the counterclaim, they sought the following orders: a. The Defendants (now the Plaintiffs) seek a declaration to the effect that they have acquired ownership of 0.9 acres of LR NO. Kericho/Kapsimbiri/464 through adverse possession. b. The Defendants (now Plaintiffs) seek an order that they be registered as the proprietors of 0.9 acres of LR NO. Kericho/Kapsimbiri/464. c. The Defendants (now Plaintiffs) seek an order that the legal representative of the estate of Kikwai Arap Kones or the Executive Officer authorized to documents of this the Court sign all to facilitate be requisite the aforementioned registration. d. The Defendants (now Plaintiffs) also seek an order that the consent of the relevant land control board be dispensed with. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 3 of 47

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e. The Defendants (now Plaintiffs) seek an order that caution or subsisting any inhibition, restriction in injunction, that may be to LR NO. respect Kericho/Kapsimbiri/464 be discharged. 4. The Learned Trial Magistrate delivered judgement on 28 th January, 2025 and held as follows; “Consequently, I find that Plaintiff’s case fails for it has no merit. It is dismissed with costs to the Defendants, and instead judgement is entered Defendants in in favour the terms of the of the Counterclaim. Defendants to start the process of transferring the portion in issue to the estate of their late father, and if the Plaintiff fails to sign the transfer documents then the Court administrator will sign on his behalf. The Counterclaim is allowed as prayed…” -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 4 of 47

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5. The Appellant being aggrieved by the said judgement approached this Court by way of appeal. 6. The appeal was admitted for hearing on 16 th July, 2025 and the Court issued directions that it be heard by way of written submissions. 7. On 29th September, 2025 the appeal was mentioned to confirm filing of submissions and then reserved for judgement. THE APPEAL 8. The grounds of appeal are as follows; 1. That the learned Trial Magistrate erred in law and in fact by disregarding the Appellant’s certificate of title despite the fact that it stood uncontroverted. 2. That the Learned Trial Magistrate erred in law and in fact by holding that the Appellant sold land to the Respondents herein without satisfying herself that the conditions for a -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 5 of 47

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contract for disposition of an interest in land had been met. 3. That the Learned Trial Magistrate erred in law and in fact by allowing the Respondents’ counter-claim despite the fact that they did not have the requisite locus-standi by way of a grant of letters of administration adlitem to sue on behalf of their deceased father. 4. That the Learned Trial Magistrate erred in law and in fact by holding that the Respondents had proven their claim of adverse possession despite the fact that the Respondents did not produce a certified extract of the title to the suit parcel. 5. That the Learned Trial Magistrate erred in law and in fact in totally disregarding the Appellant’s evidence thus arriving at a wrong decision. 6. That the Learned Trial Magistrate erred in law and in fact by failing to address the issues raised by the Appellant in his submissions 22 nd of October 2024. (sic) -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 6 of 47

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7. That the Learned Trial Magistrate erred in law and in fact by relying on the Respondents’ testimonies and unsupported averments thus arrived at an erroneous decision not supported by law or facts. 8. That the Learned Magistrate erred in fact and law and in fact (sic) in failing to consider the submissions of the appellant’s counsel together with the case law in support. 9. That the decision of the Learned Trial Magistrate as a whole as contained (sic) in the Ruling (sic) dated 28th January 2025 is legally untenable, against the weight of evidence and ought to be set aside in its entirety. 9. The Appellant prays for orders that; a. That this appeal be allowed and the judgment of honourable Esther Boke in Bomet Magistrate’s Court environment and land case number E010 of 2023 be set aside. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 7 of 47

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b. That the costs of this appeal be provided for. ISSUES FOR DETERMINATION. 10. The Appellant filed submissions on 1 st August, 2025. The said submissions are incomplete; some pages are missing. 11. The Respondents filed their submissions on 29 th September, 2025. Appellant’s Submissions. 12. The Appellant submits on the following issues; a. Whether the Respondents had locus standi to defend the trial Court case based on a deceased person’s interest in the suit parcel. (sic) b. Whether the proved their Respondents claim for have adverse possession. c. Who should bear costs of the appeal. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 8 of 47

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13. On the first issue, the Appellant submits that the Learned Magistrate erred in finding that since the Respondents were sued in their personal capacity, they could raise any issue in their defence. 14. The Appellant also submits that legally, the Respondents could only defend the suit in their personal capacity just as they had been sued and they could not therefore raise issues about their deceased father’s interests. 15. The Appellant further submits that the Respondents had no legal capacity to represent the estate of the deceased and therefore their joint defence was a nullity ab initio and ought to have been struck out. 16. On the second issue, the Appellant relies on Order 2 Rules (1), (2), (3), (4) and (5) of the Civil Procedure Rules and submits that the Respondents raised the issue of adverse possession by way of a Counterclaim but failed to attach a verifying affidavit. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 9 of 47

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17. The Appellant also submits that he filed a Preliminary Objection on the said issue which was subsumed in the main suit. 18. The Appellant further submits that a claim for adverse possession cannot be raised through a Counterclaim but should be filed through an Originating Summons with a Certified extract of title of the suit parcel of land annexed. The Appellant relies on Order 37 Rule 7 of the Civil Procedure Rules and the judicial decision of Titus Mutuku Kasuve versus Mwaani Investments and 4 Others [2004] 1 KLR 184 in support of his submissions. 19. The Appellant relies on the judicial decisions of Hyde versus Pearce 1982 ALL ER 1029, Samuel Miki Waweru vs Jane Njeri Richu Civil Appeal No. 122 of 2001 (UR), Mbira vs Gichuhi [2002] 1 EALR 137, Ramadhan Wanzala Omoro versus County Government of Kakamega [2020] KEELC 2994 (KLR) -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 10 of 47

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and submits that a party cannot claim adverse possession on land that he has purchased. 20. The Appellant also submits that the Learned Trial Magistrate made the finding that the Respondents took possession of a portion of his land in the year 1979 after entering into a land sale agreement. 21. The Appellant further submits, therefore, that the Respondents possession of a portion of the suit parcel of land was with his consent. Respondents Submissions. 22. The Respondents submit on the following issues; a. Whether locus the standi Respondents had in the respect to Counterclaim. b. Whether been in the Respondents occupation, use have and peaceful possession of the suit parcel of land thereby acquiring -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 11 of 47

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the land through adverse possession. c. Costs of the appeal. 23. The Respondents rely on the judicial decision of Peter M. Kariuki vs Attorney General [2014] eKLR and submit that this Court has a duty to examine issues of both fact and law and draw its own conclusion from the evidence that was tendered before the trial Court. 24. On the first issue, the Respondents rely on the judicial decision of Rugiri vs Kinuthia & 3 Others [2024] KECA 1601 (KLR) and submit that in the trial Court, the Appellant filed a Notice of Preliminary Objection dated 17th July, 2023. 25. The Respondents also submit that in the said Notice of Preliminary Objection, the Appellants contended that they did not have locus standi. 26. The Respondents further submit that the Appellant abandoned the said Preliminary Objection and in their own -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 12 of 47

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words state that “it is horrific” that he has included the issue raised in the said Preliminary Objection in his grounds of appeal. 27. It is the Respondents submissions that in the Counterclaim, they sought to be declared to have acquired a portion of land parcel No. Kericho/Kapsimbiri/464 measuring 0.9 acres. 28. It is also the Respondents submissions that they did not state in the Counterclaim, that they were suing as the legal representatives of their deceased father one Kikwai Arap Kones and neither did the Appellant aver in the Plaint, that he was suing them as legal representatives of the estate of their deceased father. 29. It is further the Respondents submissions that the Appellant sued them and they had every right to defend themselves and raise any issue in their defence. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 13 of 47

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30. With regard to the second issue, the Respondents submit that from the evidence tendered before the trial Court, it was evident that the Appellant was the registered owner of the suit parcel of land. 31. The Respondents also submit that it was not disputed that they were in possession of a portion of the suit parcel of land. 32. The Respondents rely on Sections 7, 13 and 38 of the Limitation of Actions Act, the judicial decision of Mtana Lewa vs Kahindi Ngala Mwangandi [2015] eKLR and submit that a claim of adverse possession can only arise out of non-permissive possession of land. 33. The Respondents also submit that in the present suit, they took possession of the suit parcel of land after a land sale agreement was executed in the year 1979. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 14 of 47

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34. The Respondents further submit that they took possession of a portion of the suit parcel of land with the permission of the registered owner. 35. It is the Respondents submissions that adverse possession can arise out of a land sale agreement if nothing subsequent to the sale agreement is in contravention of any law. The Respondents rely on the judicial decision of Gabriel Mbui vs Mukindia Maranya [1993] eKLR in support of their submissions. 36. It is also the Respondents submissions that their deceased father paid the entire purchase price of kshs. 6,570/= and their possession became adverse on the date the purchase price was paid in full. 37. It is further the Respondents submissions that upon the lapse of twelve years, a purchaser would be entitled to became the registered owner of land under the doctrine of adverse possession. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 15 of 47

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38. The Respondents submit that if the purchase price is paid in installments, then time begins to run on the date of payment of the last installment. 39. The Respondents also submit that the Learned Trial Magistrate found that the Respondents bought a portion of the suit parcel of land and were in open, peaceful, continuous and uninterrupted possession of the suit parcel of the land since the year 1979. 40. The Respondents also submit that the Appellant therefore held the title of the suit parcel of land in trust for the Respondents after his title was extinguished upon the lapse of twelve years. 41. The Respondents rely on Section 38 of the Limitation of Actions Act, the judicial decisions of James Maina Kinya vs Geral Kwendaka [2018] eKLR, Mate Gitabi vs Jane Kabubu Muga & Others Civil Appeal No. 43 of 2015, -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 16 of 47

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Wambugu vs Njuguna [1983] KLR 173, Thika Garissa Road Developers Limited v Mwangi & 4 others (As duly Elected Officials of Gachagi Land Committee Representing Residents of Gachagi) & 4 others (Sued as the Chairman, Secretary and Vice Chairman respectively of Thika Municipality Block 31 Welfare Group) [2023] KECA 269 (KLR) and submit that they have been in possession of a portion of the suit property for a period of over forty five years. 42. The Respondents also submit that they have planted tea bushes and trees on a portion of the suit parcel of land which is evidence of possession and/or occupation. 43. The Respondents rely on the judicial decision of Gatimu Kinguru vs Muya Gathangi [1976] eKLR and submit that the land they are in occupation of is clearly identifiable and it measures 0.9 acres. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 17 of 47

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44. On the issue of costs, the Respondents rely on the judicial decision of Applicant Rosemary v Ihururu Wairimu Party Munene Farmers’ Ex-parte Cooperative Society J.R. No. 4/2014 and urge the Court to dismiss the appeal with costs. ANALYSIS AND DETERMINATION. 45. The issues that arise for determination are as follows; a. Whether the Learned Trial Magistrate erred in allowing the Counterclaim and yet the Respondents did not have the locus standi to file it. b. Whether the Learned Trial Magistrate erred in finding that the Respondents acquired a portion of land parcel No. Kericho/Kapsimbiri/464 by way of adverse possession. c. What is the fate of the other grounds of Appeal? d. Who should bear costs of the appeal? -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 18 of 47

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A. Whether the Learned Trial Magistrate erred in allowing the Counterclaim and yet the Respondents did not have the locus standi to file it. 46. This question for determination addresses Ground (3) of the Appellant’s Memorandum of Appeal. 47. The role of the Appellate Court was stated by the Court of Appeal in the judicial decision of Gitobu Imanyara & 2 others Vs Attorney General [2016] eKLR. It was held as follows; “An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 19 of 47

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allowances in this respect.” (Emphasis mine) 48. In Abok James Odera T/A A.J Odera & Associates Vs John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR the Court held as follows; “This being a first appeal, we are reminded of our primary role as a first Appellate Court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” (Emphasis mine) 49. The Appellant contends that the Learned Trial Magistrate erred in allowing the Respondents Counterclaim and yet they did not have the locus standi to sue on behalf of the estate of their deceased father. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 20 of 47

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50. The Appellant submits that before the trial Court, the Respondents could only defend the suit in their personal capacities. 51. The Appellant also submits that the Respondents did not therefore have the capacity to sue on behalf of the estate of their deceased father. 52. The Appellant further submits that he filed a Preliminary Objection raising this issue, which preliminary objection was subsumed in the main suit. 53. The Respondents on the other hand submit indeed the Appellant filed a Preliminary Objection dated 17 th July, 2023 where the Appellant raised the issue of locus standi. 54. The Respondents also submit that the Appellant abandoned the said preliminary objection only to raise the issue of locus standi on appeal. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 21 of 47

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55. The Respondents nonetheless submit that the Appellant did not sue them as legal representatives of their deceased father and neither did they file the Counterclaim as legal representatives of the estate of their deceased father. 56. The Respondents also submit that since they were sued, they had a right to raise any issue in their defence. 57. The Learned Trial Magistrate at paragraph 3 of page 4 of the judgement observed and held as follows; “Plaintiff has also asked if Defendants have Locus standi, but he has forgotten that he is the one who has sued the Defendants in their capacity as Defendants and occupiers of suit property (sic), and not as legal representatives of the estate of their late father. So, that is why they are defending the suit because it is them who have been sued and not them who have sued on behalf of their late father. Therefore, they have a right to defend themselves and raise any -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 22 of 47

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issue in their defence because they have been sued in their capacity as the Defendants and or occupiers of the land in issue.” 58. A perusal of the trial Court record shows that the Appellant filed a Preliminary Objection dated 17th July, 2023. The Preliminary Objection was on the following grounds; a. That the Counter-claim is in violation of Order 2 Rule 1-5 of the Civil Procedure Rules Cap 11 Laws of Kenya. b. That the Defence and Counter-Claim should be dismissed with costs. 59. A further perusal of the trial Court record shows that on 19 th September, 2023, the matter was mentioned before the Learned Trial Magistrate and Counsel for the Appellant informed the Court that he had filed a Preliminary Objection. Counsel sought that the Preliminary Objection be canvassed by way of written submissions. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 23 of 47

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60. The Learned Trial Magistrate issued directions that the preliminary objection be canvassed by way of written submissions. 61. On 24th October, 2023, the matter was mentioned to confirm filing of submissions when Counsel holding brief for Counsel for the Appellant informed the Court that the Appellant intended to abandon the preliminary objection. 62. The Court then marked the Preliminary Objection as abandoned. 63. From the trial Court’s record, it is evident that the Preliminary Objection dated 17th July, 2023 was abandoned. 64. It is important to note that the preliminary objection dated 17th July, 2023 did not specifically raise the issue of locus standi and instead the Appellant contended that the Counterclaim violated Order 2 Rules 1, 2, 3, 4 and 5 of the Civil Procedure Rules. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 24 of 47

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65. Order 2 Rules 1, 2, 3, 4 and 5 of the Civil Procedure Rules generally provides for the nature and form of pleadings. 66. It is therefore my finding that the preliminary objection dated 17th July, 2023 was not subsumed in the hearing as contended by the Appellant and did not also raise the issue of locus standi. 67. I will now address the issue of whether the Respondents had the locus standi to file the Counterclaim. 68. In the judicial decision of Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased) [2016] KEHC 4186 (KLR) the Court held as follows; “…Further the issue of locus standi is so cardinal in a civil matter since it runs through to the heart of the case. Simply put, a party without locus standi -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 25 of 47

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in a civil suit lacks the right to institute and/or maintain that suit even where a valid cause of action subsists. Locus relates to mainly standi the capacity of a party. The legal impact of a party in a suit without locus standi can be equated to that of a Court acting without jurisdiction since it all amounts to null and void proceedings.” (Emphasis mine) 69. In the Plaint filed before the trial Court, the Appellant averred that he was the registered owner of land parcel No. Kericho/Kapsimbiri/464. 70. The Appellant also averred that sometime in the year 2017, the Respondents took possession of several portions of the suit parcel of land without his permission. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 26 of 47

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71. The Appellant further averred that he issued an Eviction Notice dated 8th March, 2023 to the Respondents that required them to vacate the suit parcel of land. 72. It was the Appellant’s averment that the Respondents refused to vacate the suit parcel of land and that was why he filed the said suit. 73. Among the prayers sought in the Plaint was an order for the Respondents to vacate the suit parcel of land and a permanent injunction be issued against them. 74. In the Statement of Defence, the Respondents stated that their deceased father purchased a portion of land parcel No. Kericho/Kapsimbiri/464 measuring 1.5 acres in the year 1979 from the Appellant. 75. The Respondents also stated that they took possession of the suit parcel of land in the year 1979 with permission of the Appellant. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 27 of 47

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76. The Respondents then denied the averments in the Plaint. 77. In the Counterclaim, the Respondents sought a declaration that they have acquired a portion of land parcel No. Kericho/Kapsimbiri/464 by way of adverse possession. 78. It is evident that the defence of adverse possession was mounted by the Respondents in their personal capacity. The declaratory orders sought by them in the counterclaim arise from the defence of adverse possession. 79. The Respondents also sought, among other orders, that they be registered as the proprietors of the said portion of the suit parcel of land and the legal representative of the estate of Kikwai Arap Kones or the Executive Officer of the Court, be authorized to sign the requisite documents to facilitate the registration. 80. From the foregoing, it is evident that it is only at the point of listing prayers sought that the Respondents ask that the -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 28 of 47

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legal representative of the estate of Kikwai Arap Kones (them) be allowed to execute the requisite documents to facilitate registration. 81. It is therefore my finding that the Learned Trial Magistrate made no mistake in determining the counterclaim and also find that it was not necessary for the Respondents to obtain letters of administration before mounting the defence of adverse possession as they did so in their personal capacities; the same capacity in which they were sued. 82. This ground of appeal therefore fails. B. Whether the Learned Trial Magistrate erred in finding that the Respondents acquired a portion of land parcel No. Kericho/Kapsimbiri/464 by way of adverse possession. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 29 of 47

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83. This question for determination addresses ground (4) of the Memorandum of Appeal. 84. The Appellant contends that the Learned Trial Magistrate erred in finding that the Respondents proved their claim for adverse possession and yet they had not produced an extract of title of the suit parcel of land. 85. The Appellant submits that the Learned Trial Magistrate made the finding that the Respondents took possession of a portion of his land in the year 1979 after entering into a land sale agreement. 86. The Appellant also submits that the Respondents possession of a portion of the suit parcel of land was therefore with his consent and they could not claim to have acquired the said portion by way of adverse possession. 87. The Respondents on the other hand submit that they took possession of a portion of the suit parcel of land in the year -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 30 of 47

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1979 after their father purchased the said portion from the Appellant. 88. The Respondents also submit that their deceased father paid the full purchase price and that time, for purposes of adverse possession, begun to run from the date of payment of the purchase price. 89. The Respondents further submit that a party can seek orders of adverse possession after purchase of land if “nothing subsequent to the sale agreement is in contravention of any law or equity.” 90. The Learned Trial Magistrate at paragraphs 4 & 5 of page 5 of the judgement and paragraphs 1, 2, 3 & 4 of page 6 of the judgement observed and found as follows: “Like in this instant case, Defendants claim that their father bought the land from the Plaintiff in the year 1979 when they were still young, and they occupied the land from that time for their father -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 31 of 47

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entered the land immediately and started farming on it by growing tea. Even when he passed on, they continued farming on it openly and uninterrupted, until 2023 March when Plaintiff wrote them a letter demanding them to vacate the land. Plaintiff in his evidence has not been able to rebut that fact that he had sold the land and that it has been in occupation by the buyer's side, and he admits during cross examination that he indeed sold that portion to the late father of the Defendants (1st and 2nd Defendants). But he claims that the Defendants have no contract with him so they are strangers they should leave his land. (sic) He also claims that their father did not clear the purchase price balance. He also claimed that Defendants entered the land in the year 2017, but though the Court doubts, he wrote them a letter to vacate in March 2023, five years down the line. (sic) -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 32 of 47

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After considering all that, I cannot hesitate but to find that Plaintiff is not being sincere. Since 1979 to 2023 if the purchase price balance was not cleared would he have waited for the purchaser to live on the land peacefully for more than 30 years and raise issues many years after his death? The answer is a big NO. That makes the Court agree with the Defendants that their father paid the purchase price in full. That is the only reason why he occupied the land peacefully by farming on it with his family Defendants the 1st included and 2nd without any disruption. The Defendants have then proved that they have been in occupation of the land peacefully and openly from year 1979 with their father and even after the demise of their father they continued doing so. They have therefore proved all the ingredients of adverse possession. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 33 of 47

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Section 7 of the Law of Limitation of actions Act provides that, “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 first accrued to some person through whom he claims, to that person” The Plaintiff having left the Defendants to occupy the land in issue for all those years more than 40 years or more than 17 years after the demise of their father whom they say that died in the year 2004, he is stopped by the section 7 of the limitation of actions Act from raising his claim to recover that portion of land after all those years (sic).” 91. Before further addressing this issue, it is not only prudent but also imperative for me to address the issue of whether the Learned Trial Magistrate had jurisdiction to determine the question of adverse possession and make a declaration on it. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 34 of 47

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92. It is important to note that none of the parties herein have raised and/or addressed the said issue of jurisdiction on the part of the Trial Court. 93. The Supreme Court in Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR held as follows; “[40] A jurisdictional issue is fundamental and can even be raised by the Court persuasively suo and motu aptly as was stated by Odunga J in Political Parties Dispute Tribunal & another v Musalia Mudavadi & 6 others Ex Parte Petronila Were [2014] eKLR. The learned Judge drawing from the Court of Appeal precedent in Owners and Masters of The Motor Vessel “Joey” vs. Owners and Masters of The Motor Tugs “Barbara” and “Steve B” [2008] 1 EA 367 stated thus: -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 35 of 47

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“25. What I understand the Court to have been saying is that it is not mandatory that an issue of jurisdiction must be raised by the parties. The Court on its own motion can take up the issue and make a determination thereon without the same being pleaded…” Consequently, while the parties have not given the jurisdiction issue the much premium that it deserves, upon evaluation of the matter before us, it is our considered opinion that the issue of jurisdiction of this Court to hear and determine this appeal warrants settlement upfront.” (Emphasis mine) 94. As was held by the Supreme Court in Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 others (supra) cited above, the Court can consider the issue of jurisdiction suo motu and I hereby do. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 36 of 47

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95. The Court of Appeal in Jamal Salim v Yusuf Abdulahi Abdi & another [2018] KECA 14 (KLR) held as follows; “17. Jurisdiction either exists or it does not. Neither can it be acquiesced or granted by consent of the parties. This much was appreciated by this Court in Adero & Another vs. Ulinzi Sacco Society Limited [2002] 1 KLR 577, as follows; “1) … 2) The jurisdiction either exists or does not ab initio … 3) Jurisdiction cannot be conferred by the consent of the parties or be assumed on the grounds that parties have acquiesced in actions which presume the existence of such jurisdiction. 4) Jurisdiction is such an important matter that it can be raised at any stage of the proceedings even on appeal.” 18. It follows that even where a party initially admits to -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 37 of 47

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jurisdiction, as in this case, the same does not clothe a Court with jurisdiction it did not have to begin with. Similarly, an objection to jurisdiction can be raised at any stage. Nonetheless, such an objection ideally should be raised at the earliest opportunity. 19. Therefore, did the trial Court have jurisdiction to entertain the respondents’ claim?...” (Emphasis mine) 96. The Court of Appeal in Jamal Salim v Yusuf Abdulahi Abdi & another (supra) cited the judicial decision of Adero & Another vs. Ulinzi Sacco Society Limited [2002] 1 KLR 577 where the Court of Appeal held that jurisdiction is such an important issue that it can be raised at any stage of the proceedings even on appeal. 97. In answer to the question whether the Learned Trial Magistrate had jurisdiction to determine the question of adverse possession and make any declaration on it, I am -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 38 of 47

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guided by the decision of the Court of Appeal in Sugawara v Kiruti (Sued in her capacity as the administratrix of the Estate Mutaragwa Leposo of Mutarakwa Kiruti Lepaso and in her Kiruti alias own Lepaso alias Mutaragwa Kiroti Capacity) & 3 others [2024] KECA 1417 (KLR) where it was held as follows; “46. In other words, reference is to the “High Court” as the Court to which such cases are heard, and given the dictates Constitution set out of the above, this should be construed to mean the “Environment and Land Court”, as being the Court donated with jurisdiction to hear and determine matters pertaining to adverse possession of land. The effect of this interpretation is that, it is only the Environment and Land Court established under Article 162(2)(b) that is mandated to hear these cases. So that, notwithstanding the expansion of environment the and jurisdiction land usage of to -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 39 of 47

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Magistrates Courts, it is distinctive that under section 9(a) of Magistrates Courts Act, various matters are the specified determination, but for claims for adverse possession are not included. 47.In the case of Republic v Karisa Chengo & 2 others [2017] eKLR this Court held that: “A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 48.It is our view that, if it was intended that claims for adverse possession be determined by the Magistrates’ Court, nothing would have been easier than for Parliament to have expressly enacted such a provision. So that in view of the -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 40 of 47

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express provisions of the law, a strict interpretation of section 38 would mean that hearing determination of such specifically limited and matters to is the Environment and Land Court to the exclusion of Magistrates’ Court.” (Emphasis mine) 98. In the above cited judicial decision, the Court of Appeal held that the Magistrate’s Courts do not have jurisdiction to hear and determine claims of adverse possession. 99. Consequently, I find that the Learned Trial Magistrate did not have jurisdiction to determine the Respondents claim of adverse possession. C. What is the fate of the other grounds of Appeal? 100. Before penning off, it is important to note that none of the parties herein have submitted on grounds 1, 2, 5, 6, 7, 8 and 9 of the Memorandum of Appeal. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 41 of 47

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101. The said grounds have been set out in the preceding paragraphs but I will nonetheless replicate them as hereunder; 1. That the Learned Trial Magistrate erred in law disregarding and in the fact by Appellant’s certificate of title despite the fact that it stood uncontroverted. 2. That the Learned Trial Magistrate erred in law and in fact by holding that the Appellant sold land to the Respondents herein satisfying herself conditions for a without that the contract for disposition of an interest in land had been met. 5. That the Learned Trial Magistrate erred in law and in fact in totally disregarding the Appellant’s evidence thus arriving at a wrong decision. 6.That the Learned Trial Magistrate erred in law and in fact by failing to -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 42 of 47

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address the issues raised by the Appellant in his submissions 22nd of October 2024. (sic) 7.That the Learned Trial Magistrate erred in law and in fact by relying on the Respondents’ unsupported testimonies and averments thus arrived at an erroneous decision not supported by law or facts. 8.That the Learned Magistrate erred in fact and law and in fact (sic) in failing submissions of to consider the the Appellant’s counsel together with the case law in support. 9.That the decision of the Learned Trial Magistrate as a whole as contained (sic) in the Ruling (sic) dated 28th January 2025 is legally untenable, against the weight of evidence and ought to be set aside in its entirety. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 43 of 47

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102. In Khetshi Dharamshi & Company Ltd v Obuyumbi (Appeal 10 of 2023) [2023] KEELRC 2664 (KLR) (30 October 2023) (Judgment) the Court held as follows; “4.To answer the 1st issue, the Court returns (sic) that the Appellant has made no submissions on the issue of want of jurisdiction by the trial Court per Grounds 1 and 2 of appeal and as submitted for the Respondent, the Appellant is deemed to have abandoned the two grounds. The Court returns that the two grounds stand abandoned accordingly.” 103. In the judicial decision of Kamonde v Mulonzya & another (As Administrators of the Estate of Paul Vinzi Deceased) (Civil Case E213 of 2022) [2024] KEHC 5648 (KLR) (9 May 2024) (Judgment) the Court held as follows; “There was no submission on other grounds of Appeal hence they are deemed abandoned.” -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 44 of 47

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104. Similarly, I shall deem grounds 1, 2, 5, 6, 7, 8 and 9 of the Memorandum of Appeal abandoned since the Appellant did not submit on them. D. Who should bear costs of the appeal? 105. The general rule is that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. 106. In the judicial decision of Kimimgi & another v Onuko [2025] KEHC 6268 (KLR), the Court held that since it, on appeal, raised the jurisdictional question suo motu, each party was to bear own costs of the appeal. 107. Similarly, in the appeal under consideration, the Court has raised and determined the question of jurisdiction suo motu and therefore each party shall bear own costs of the appeal. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 45 of 47

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DISPOSITION. 108. In the result, I find that the Learned Trial Magistrate lacked jurisdiction to hear and determine the question of adverse possession. 109. Consequently, I orders as follows: a. The judgement delivered in Bomet CM ELC Case No. E010 of 2023 is hereby set aside. b. Each party shall bear own costs of the appeal. 110. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 5TH DAY OF MARCH, 2026. L. A. OMOLLO JUDGE. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 46 of 47

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In the presence of: Mr. Nandi for the Appellant. Miss Chirchir for the Respondents. Court Assistant; Mr. Joseph Makori. -----------------------------------------------------------------------------------------------------------------------------------------ELCA E003 OF 2025 [KERICHO] Page 47 of 47

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