https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4773

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT KAPSABET** **ELCL APPEAL NO. E002 OF 2025** **BETWEEN** **WILFRED KIPLAGAT BETT …………………………………..1ST APPELLANT** **CHRISTINE CHEROTICH BETT…………………………….2ND APPELLANT** **ANNE BETT……………………………...……………………3RD APPELLANT** **ELVIS KIPYEGO BETT…………………….………………….4TH APPELLANT** **VERSUS** **NICHOLAS BUNGEI RUTTO…………………………………RESPONDENT** **(Being an appeal,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,2025)** **JUDGMENT** 1. The present appeal was precipitated by the judgment delivered on 14th March 2025 where the learned trial magistrate reasoned that the plaintiffs who are the appellants had failed to demonstrate their case on balance of convenience as against the defendant who is the respondent. The plaintiffs’ case was thereby dismissed with no orders as to cost in the circumstances. 2. Additionally, it was the finding of the trial court that the Respondent herein who was Defendant/Plaintiff in the counter claim dated 8th January 2024 before that court, had proved the counterclaim save for the prayer requiring cancellation of title by the land registrar as the same is the preserve of the land registrar. The Court proceeded to make the following orders: 3. A declaration holding that he is the absolute /legal owner of apportion measuring 13.5 acres out of the suit property herein (land reference number **Nandi/Lolkeringet/201**) which has been in his possession for a period of 16 years and therefore has accrued title of the same by operation of the doctrine of adverse possession. 4. ​An order directing the 1st defendant’s title to the 13.5 acres of the suit property extinguished upon expiry of 12 years and he continue holding in trust for the plaintiff. 5. ​A declaration holding that the 1st defendants title to 1 acre of the suit property in trust for the plaintiff by virtue of sale agreement dated 03/08/2013. 6. ​An order directing the 1st defendant to specifically perform the terms of agreement dated 03/08/2013 by transferring 1 acre to the plaintiff and in default thereto the executive officer of the court be directed to execute documents of conveyance in order to vest 1 acre to the plaintiff. 7. ​An order of permanent injunction restraining the defendant, their agent and or servant from claiming, encroaching, cultivating, selling, transferring or dealing in any manner with the 14.5 acres in the suit property. 8. ​Each party shall bear its costs. 9. The trial court’s decision aggrieved the appellants who through **Rioba Omboto** and Company Advocates, lodged the appeal by the memorandum of appeal dated 28th March 2025 founded upon the following grounds; 10. That, the Learned Trial Magistrate gravely erred in law and fact in dismissing the Appellant’s suit with costs to the Respondent. 11. That the Learned Trial Magistrate gravely erred in law and fact in failing to analyze basic tenets of law relating to Land transaction. 12. ​That the Learned Trial Magistrate erred in Law and in fact by considering a Sale of land Agreement dated 31/7/2007 between the 1ˢᵗ Appellant and the Respondent where the Respondent purport to have purchased 12.5 acres from the 1ˢᵗ appellant which written sale agreement never existed and proceed to award the same to the Respondent albeit the provisions of Section 3 (3) of the contract Act. 13. ​That the Learned Trial Magistrate misdirected herself in law in awarding land to the respondent vide non-existent contract that is not enforceable in law and offends the law of contract (Section 3 (3) of the contract Act to wit:- ***No suit shall be brought upon a contract for the disposition of an interest in land unless the contract upon which the suit is founded is in writing and signed by all the parties thereto.*** 1. That the Learned Magistrate erred in law and fact by failing to analyze and come to the conclusion that Sale of land agreements were vitiated by duress, undue influence, misrepresentation, deceit and/or fraud. 2. That the Learned Magistrate erred in law and in fact by invoking the Doctrine of Adverse possession to award the Respondent 13.5 acres which is a preserve of the Environment and Land Case. 3. That the Learned Trial Magistrate erred in law and fact in upholding the orders of Adverse Possession in the Respondent’s defence an counter-claim oblivious of the court having no jurisdiction to hear and determine such pleadings falling under Adverse possession. 4. That the Learned Trial Magistrate erred in law and fact in not making a finding that the Magistrate court do not have the jurisdiction to hear and determine a claim of adverse possession as outlined under Section 38 of the Limitation of Actions Act. 5. That the Learned Trial Magistrate erred in law and fact in not dismissing the Appellant's counter-claim as it lacks the requisite jurisdiction to determine any claim under Adverse possession. 6. That the Learned Trial Magistrate erred in law and fact in misapplying the Doctrine of "**constructive Trust**" 7. That the Learned Trial Magistrate erred in law and fact by misdirecting itself in upholding that the suit property measuring 8.9 Ha. (22 Acres) be held in trust and that the Respondent to transfer only one (1) Acre to the 1ˢᵗ Appellant. 8. That the Learned Magistrate erred in law by disregarding the fact that the Appellant never obtained spousal consent from the 2ⁿᵈ Appellant to transfer land to himself. 9. That Learned Magistrate erred in law and in fact by issuing an order of permanent injunction against the appellants, from claiming or dealing in any manner with 4 acres only in the suit property registered in the 1ˢᵗ appellant’s name. 10. ​That the Learned Trial Magistrate erred in law in failing to take into account the pleadings, evidence and submissions tendered by the appellants while rendering the judgement. 11. Originally, the appellants generated the suit before the trial court by the plaint dated 5th September 2023 for the principal prayers infra; 12. An order of Eviction forthwith removing the Defendant, his agents, servants and/or assigns to vacate, move and leave vacant possession of all that that suit property measuring **8.9 Ha. (22 Acres).** 13. A permanent injunction restraining the defendant, his agents, employees, workers and/or any other person from entering into, occupying, encroaching, trespassing, fencing, subdividing, ploughing, planting crops and/or in any way dealing with the plaintiff's quiet possession, use and enjoyment of the suit property and stop them from doing any acts that are inconsistent with the plaintiff's right as the legal and/or rightful owner of all that suit property measuring **8.9 Ha. (22 Acres).** 14. Damages and/or mesne profits from the date of trespass until the defendant delivers up possession of the suit property measuring **8.9 Ha. (22 Acres).** 15. The Defendant entered appearance through their advocates on record M/S B. Murgor & Company Advocates and filed their statement of defense together with a counterclaim, both dated 16th February 2024. In the said Counterclaim, the Defendant/Plaintiff sought main orders thus: 16. A declaration holding that the Plaintiff is the absolute/legal owner of the apportion measuring 13.5 acres out of the suit property which he has been in actual possession peacefully, openly and uninterrupted for a period of 16 years and therefore he has acquired title of the same by operation of the Doctrine of adverse possession. 17. An order directing that the 1ˢᵗ defendant's title to the 13.5 Acres of the suit property extinguished upon expiry of 12 years and he continued holding title thereafter in trust for the plaintiff. 18. A declaration holding that the 1ˢᵗ defendant holds title to 1 acre of the suit property in trust for the plaintiff by virtue of the sale Agreement dated 3ʳᵈ August, 2013. 19. ​An order directing the 1ˢᵗ defendant to specifically perform the terms of agreement dated 3ʳᵈ day of August, 2013 by transferring 1 acre to the plaintiff and in default thereof the executive officer of the court be directed to execute documents of conveyance in order to vest the 1 Acre of the suit property in the plaintiff. 20. An order of permanent injunction restraining the defendants, their agents and/or servants from claiming, encroaching, cultivating, selling, transferring or dealing in any manner with the 14.5 acres in the suit property to the plaintiff. 21. ​Costs of the suit. 22. In the submissions dated 4th June 2026, learned counsel for the appellants made reference to the parties herein and several disputed sale of land agreements allegedly entered into between the 1st appellant and the respondent, the parties’ respective pleadings and delineated seven issues for determination including whether the trial court had jurisdiction over adverse possession claim. Counsel had a discussion on the grounds of appeal in the affirmative. 23. To buttress the submissions, counsel relied on, inter alia, **Owners of Motor Vessel ‘Lillian S’ vs Caltex Oil (Kenya) Ltd (1989) KLR 1, Mwangi vs Kigo (1980) KLR 220 and Giella vs Cassman Brown & Co. Ltd (1973) EA 358** on court’s jurisdiction, the requirements of section 3 (3) of the Law of Contract Act and injunctions respectively. Therefore, counsel implored the court to grant the orders sought at the foot of the memorandum of appeal. 24. By the submissions dated 8th July 2026, learned counsel referred to the impugned judgment, the jurisdiction of the trial court to entertain the suit pursuant to Article 169 (2) of the Constitution of Kenya 2010, section 9 (a) of the Magistrates’ Courts Act 2015 and section 26 of the Environment and Land Court Act 2015 (2011). It was submitted in part, that the 1st and 2nd appellants did not prove the elements of vitiating the sale of 14.6 acres to the respondent. 25. To reinforce the submissions, counsel cited the cases of Teresa Wachuka Gachira vs Joseph Mwangi Gachira (2009) KLR, Macharia Mwangi Maina & 87 others vs Davidson Mwangi Kagiri (2014) KLR and Sugawara case (supra) on procedure adopted in initiating proceedings, trusts and jurisdiction of magistrates’ courts to handle adverse possession claims respectively. Thus, the court was urged to disallow the appeal with cots to the respondent. 26. This being a first appeal from the trial court in the matter in dispute, it is trite law that this court has the mandate to review the facts of the case on the appeal, re-evaluate the evidence, assess it independently and make its own conclusions; see **Selle and another vs Associated Motor Boat Company Ltd and others {1968} EA 123**. 27. It is therefore, appreciated that the appellate court will not ordinarily interfere with findings of fact by the trial court unless they are based on no evidence at all, or on a misapprehension of it, or the court is shown demonstrably to have acted on wrong principles in reaching the findings; see **Mwanasokoni-vs-Kenya Bus Services Limited (1982-88) 1 KAR 278.** 28. At the trial court, PW1, Christine Cherotich Bett during examination in chief, testified that she knows the Defendant and that she only saw the actual agreement of 14th October 2010 for 1 acre. She stated that she did not know if the Defendant bought any other 12 acres. That the 1st Plaintiff was unwell since 2006 and had mental issues and further that he was taken for rehabilitation in the USA. In cross examination, she stated that she was a retired teacher and that she knew the Defendant had built a home on the suit property. She further stated that the 1st Plaintiff became sick since 2014 and that in 2007 and 2010 he was okay. She confirmed that they had not brought any medical report to show that the 1st Plaintiff had mental issues. 29. PW2, Ann Bett stated during examination in chief that she was a resident in Germany and that she was not aware of the 2007 sale because at that time she was away. During cross examination, she stated that she had seen one agreement dated 3rd August 2013 between her father and Nicholas Rutto. 30. PW3, Wilfred Bett stated during examination in chief that he knows the Defendant. That he could not remember the acres that he sold to him nor the purchase price. That he could not remember most of the things that he was asked about. Under cross examination, he confirmed that he met Nicholas Rutto through Charles Rono and that he entered into a sale agreement with him but could not remember for how many acres. 31. PW4, Edwin Bett stated during cross examination that in 2023 he visited the office of advocate Mitei and that he wanted their title deed back. That he took the surveyor to the farm but that they did not file the survey report in court. 32. DW1, Nicholas Rutto gave a lengthy account of his interactions with the Plaintiff’s family and how the transactions occurred. He explained how he was introduced to the Bett family through Charles Rono, how he made his first purchase in the year 2007 and the subsequent purchases. 33. DW2, Joseph Kiplel Koech stated that he was a manager on the farm of the Defendant since 2008. That he had been taking care of the farm since that year 2008 which he bought from Mr. Bett. **Issues for Determination** 1. In the foregone, I find the following three issues for determination in the present appeal; 2. Did the Appellants prove their case to the requisite standards at the trial court to make this appeal tenable and attract the orders sought herein? 3. Did the trial Court have jurisdiction to hear and determine the Counterclaim on issues of adverse possession? 4. The orders to issue to meet the ends of justice. **Analysis** 1. The trial court considered the evidence of PW1 to PW4 and DW1 and DW2 and in reaching her finding, the learned trial magistrate correctly noted; *‘......****Although the high court ousted the courts jurisdiction over matters adverse possession, the trial of the matter had been concluded when the order was made and matter awaiting judgment.........’*** 1. After making the above observation, the trial court went ahead to give the following orders touching on adverse possession: 2. *A declaration holding that he is the absolute /legal owner of apportion measuring 13.5 acres out of the suit property herein (land reference number* ***Nandi/Lolkeringet/201****) which has been in his possession for a period of 16 years and therefore has accrued title of the same by operation of the doctrine of adverse possession.* 3. *​An order directing the 1st defendant’s title to the 13.5 acres of the suit property extinguished upon expiry of 12 years and he continue holding in trust for the plaintiff.* 4. *An order of permanent injunction restraining the defendant, their agent and or servant from claiming, encroaching, cultivating, selling, transferring or dealing in any manner with the 14.5 acres in the suit property.* 5. Applications of adverse possession are governed under Order 37 of the Civil Procedure Rules 2010 which mandates any party wishing to make such an application to initiate the proceedings by way of an originating summons. It is supposed to be accompanied by a supporting affidavit on which an extract of the title of the land in question has to be attached. The suit herein was initiated by way of a Plaint in which the Defendant filed a counterclaim raising the issue of adverse possession. This procedure falls shy of the requirements under Order 37 (supra). 6. Additionally, the Court of Appeal in the case of **Sugawara vs Kiruti {2024} KECA 1417 (KLR)** at page 50 stated infra; ***‘ ...we find that Magistrates’ courts do not have jurisdiction to determine the claims of adverse possession.......’*** 1. The Appellants raised the issue of jurisdiction in grounds of appeal as stated in paragraph 3 (f) (g) (h) and (i) hereinabove that the trial court lacked jurisdiction over adverse possession claims. This court is guided by the case of **Owners of Motor Vessel Lillian ‘S’ vs Caltex Oil Kenya Ltd (1989) KLR 1 at** paragraph 6, where the Court of Appeal stated; ***‘........Jurisdiction was everything. Without it a court had no power to make one more step. Where a court had no jurisdiction, there would be no basis for continuation of proceedings pending other evidence. A court of law downed tools in respect of the matter before it the moment it held the opinion that it was without jurisdiction.***’; 1. Moreover, I subscribe to the case of **Republic vs Karisa Chengo and 2 others {2017} KESC 15 (KLR) where the Supreme Court of the Republic of Kenya noted that;** *‘Lack of jurisdiction thus renders a court’s decision void as opposed to it being merely voidable. When an act is void, it is a nullity ab initio. It cannot found any legal proceedings......’* 1. In reaching the said decision, the Court cited Lord Denning’s decision in the Privy Council case of **Benjamin Leonard Macfoy United Africa Company (UK) {1962} AC 152** where it was succinctly stated; *“Court has discretion in matters that are voidable not to proceedings that are a nullity for those are automatically void and a person affected by them can apply to have them set aside ex debito justitiae in the inherent jurisdiction of the court…”* 1. Thus, it is this court’s considered view that the learned Magistrate realized that a decision had been rendered by a superior court ousting the jurisdiction of Magistrates Courts from handling adverse possession matters. That the matter had gone through the hearing and was at the judgment stage. So, the learned trial magistrate ought to have downed her tools and take no more step in the Counterclaim for want of jurisdiction of the court. 2. It is noteworthy that The Defendant also seeks, through the Counterclaim, the enforcement of the sale agreement dated 3rd August 2013. I note that the trial court only gave effect to one agreement which was dated 3rd August 2013. During examination in chief of the 1st Plaintiff, he stated that he remembered selling one acre of land to the Defendant at the purchase price of Kshs. 250,000. During cross examination, he confirmed that the said sale of Kshs. 250,000 happened in the year 2013 but could not remember exact date. He confirmed having an account at Postbank and seeing a deposit on 3rd August 2013 of Kshs. 225,000 to the account 0051050005450 which he confirmed as being his account. 3. In his witness statement which forms part of his evidence, the Defendant stated at paragraph 11 that he agreed with the 1st and 2nd Plaintiffs to purchase an additional 1 acre of land at the price of Kshs. 250,000. That while at the office of his advocate John Kirwa Birir, he paid Kshs. 25,000 in cash to the 1st and 2nd Plaintiffs and that his advocate deposited Kshs. 225,000 into Mr. Bett’s bank account. This piece of testimony tallies with the bank statement that was produced as evidence in court. 4. On that account, there was a valid sale of 1 acre of land vide sale agreement dated 3rd August 2013. The trial court did not affirm the other agreements in its judgment. Based on the orders of the court, title to the other 13.5 acres of land was to pass through adverse possession. For this reason, this court finds that the ground on irregular sale agreements fails. 5. On the issue of constructive trusts, I note that the trial court, having found that the sale of 1 acre vide sale agreement dated 3rd August 2013 was above board and affirmed it, even though the 1st Plaintiff was the registered owner of the whole suit property. That he held the said 1 acre that was regularly purchased, in trust of the bonafide purchaser being the Defendant and therefore directed the 1st Appellant to specifically perform his obligations and transfer the said 1 acre to the Respondent herein. This court finds this holding to be as clear as day and night. Thus, this ground suffers a similar fate as the first one. 6. On the last ground as regards spousal consent, the trial court observed as follows: “***on the ground that spousal consent was not sought, the 2nd Defendant clearly signed the sell agreement, she cannot feign ignorance that she was not aware what she was signing, she clearly told the court that she is a retired teacher hence not ignorant. Perhaps the advocates should have prepared a specific spousal consent separate from the agreement but the fact that the 2nd plaintiff signed on the same is sufficient testimony that she was aware of the aforementioned transaction resulting to the sell of the four acres.***” 1. Undoubtedly, the 2nd Appellant signed the sale agreement and in fact had her passport number inserted thereon. She confirmed during cross examination that the number appearing on the agreement was her passport number and that the agreement was taken to her home for signing. On the face of the agreement, it is indicated at clause 5 that parties agree that there is no objection from the family members for the said sale. This Court finds that this amounted to adequate spousal consent and knowledge of the transaction. In the circumstances, this court is persuaded that the trial court did not “disregard” spousal consent as indicated in the grounds of appeal. The court directed its mind to it and made a correct finding that indeed, there had been spousal consent thereof. Similarly, this ground fails. **Determination** 1. Having considered the appeal record inclusive of the grounds of appeal, the rival submissions together with case law **Mukisa Biscuit, Macharia Maina, Giella and Sugawara cases (all supra)** in entirety, I find this appeal partially merited. 2. Ultimately, this Court makes the following orders: 3. The instant appeal originated by the Memorandum of Appeal dated 28th March 2025, is partially merited and hereby partially allowed that the appeal on jurisdiction of the trial court to hear and determine the issue of adverse possession as captured in the Counter claim, succeeds thereby setting aside orders 1, 2, and 5 of the trial court’s judgment delivered on 14th March 2025. 4. The appeal against orders 4 and 5 arising from the Counter Claim is not merited and dismissed accordingly thereby upholding only orders 3 and 4 of the judgment of the trial court. 5. Given the nature of the matter and pursuant to the proviso to **section 27 91) of the Civil Procedure Act Chapter 21 Laws of Kenya as well as being guided by the decision in Rai & 3 others vs Rai & 4 others {2014} KESC 31 (KLR)**, each party to bear their own costs of this appeal and the court below. 6. **It is so ordered.** **Dated** and **Delivered** at **Kapsabet** this **22nd day of July, 2026**. **HON. G M A ONGONDO** **JUDGE** **In the presence of;** 1. Mr. Omboto learned counsel for the appellants 2. Mr. Murgor learned counsel for the respondent 3. Mr. Walter Kipkorir, Court Assistant ​