https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3173

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAPSABET** **ELCL CASE NO. E013 OF 2025** **BETWEEN** **LENAH JEMELI………………………………………….………….PLAINTIFF** **AND** **ROSA KARONEY………………………….………………1ST DEFENDANT** **ELIZABETH JELEL………………………….……………..2ND DEFENDANT** **THE LAND REGISTRAR, NANDI COUNTY…………..3RD DEFENDANT** **JUDGMENT** 1. The plaintiff through Yuri Law and Associates Advocates sued the defendants by way of a plaint dated 24th April 2025 seeking the following orders; 2. A declaration that the Plaintiff is entitled to be registered as the proprietor of one (1) acre of land excised from land parcel No. **Nandi/Kombe/894** (the suit land herein) by virtue of: 3. The 1996 sale agreement and Land Control Board’s approval in 2010; or 4. Adverse possession under the Limitation of Actions Act (**Cap 22**) the Plaintiff having been in continuous and uninterrupted quiet possession of a well-defined 1 acre portion of the suit land. 5. An order directing the 3rd Defendant to survey, subdivide the suit land and register the Plaintiff’s one (1) acre in her name, in accordance with either the Land Control Board’s approval or the Plaintiff’s adverse possession claim. 6. A permanent injunction restraining the 1st Defendant and 2 Defendant, their agents, servants, or assigns, from interfering with the Plaintiff’s possession, use and enjoyment of the said one (1) acre of land, including the harvesting of tea bushes thereon. 7. General and special damages against the 1st Defendant for trespass and loss of income from the tea harvested from the subject suit land being 1 acre forming part of the suit land which had been in possession of the Plaintiff and encroached upon by the 2nd Defendant since November 2024. 8. Costs of this suit. 9. Any other or further relief that this Honourable court may deem just and equitable to grant. 10. Briefly, the plaintiff claims that in the plaintiff entered into a sale of land agreement with **Kiprop Karoney (Deceased)** who acted with the authority of the 2nd defendant for the purchase of one acre out of land reference number **Nandi/Kombe/894** registered in the name of the 2nd defendant. That the written agreement has since been lost. That the plaintiff took immediate possession of the one acre in the year 1996 and planted tea bushes thereon in the year 1997. 11. Further, the plaintiff states that in the year 2010, the plaintiff and other parties applied to the local Land Control for consent to subdivide the suit. So, the land got subdivided into portions including the portion of the suit land as application was allowed and approval done accordingly. That the 2nd and 3rd defendants failed to effect transfer of the portion of the suit land. 12. Also, the plaintiff asserted that she harvested the tea bushes on the portion without interruption until November 2024 when the 1st defendant trespassed into the portion, demanded her to produce sale agreement or vacate the said portion and started harvesting the tea bushes thereon. That therefore, she contends that he has lawful and equitable claim over the portion on the grounds of part performance, Land Control Board Consent, constructive trust and adverse possession, hence, provoking this suit. 13. The defendants were duly served as established by affidavits of service sworn on 29th August 2025 and 31st October 2025. However, they opted not to enter appearance and file defence herein; see **Ogada vs Mollin 2009 (2009) eKLR.** 14. On 2nd December 2025, the court directed that the suit proceeds as undefended and hearing be by way of formal proof. 15. The plaintiff, **Lenah Jemeli (PW1)** testified that she bought an acre of the suit land in 1996 at Kshs. 6,000/= from the late Kipkorir and his wife/the 1st defendant. That she planted tea bushes thereon from 1997 to 2024 when the 1st defendant asked her to either vacate it or produce sale agreement thereof. She relied on her statement of 24th April 2025 and her list of documents of even date S/Nos. 1 to 3 being Agenda for Kapsabet Land Control Board, Letter of Consent and Application for consent (PExhibits 1, 2 and 3 respectively) as part of her evidence. 16. The plaintiff’s counsel did not file submissions herein 17. In the foregone, the main issues for determination include adverse possession and trust which boil down to whether the plaintiff has established that she has so acquired ownership of one acre of the suit land to entitle her to the orders sought at the foot of the plaint. 18. The evidence of PW1 in form of her statement at paragraphs 3 and 6 shows that she took possession of the one (1) acre in 1996, planted tea bushes in 1997 and continuously harvested tea from the land up to November 2024. That despite PExhibits 1, 2 and 3, the 1st and 3rd defendants have failed to effectuate the sub division and register the one acre of the suit land in her name. That the defendants are trespassers into the portion of the suit land and have caused her loss of income and damage to her economic interests thereon. 19. PW1 testified in part; *‘..........The deceased, the 2nd defendant who is mother to the deceased and myself went to the Land Control Board as per PExhibits 1 to 3. I have not obtained title deed to-date........’* 1. On adverse possession, it is notable that the land in dispute is a defined portion of one acre of the suit land as held in **Gatimu Kinguru-versus-Muya Gathangi (1976-80) KLR 317** that a definite portion of land is an important and integral part of process of proving adverse possession claim; see also **Githu**-**versus**-**Ndeete (1984) KLR 776.** 2. The suit land is registered in the name of the 2nd defendant as discerned in PExhibits 1 to 3. In the case of **Wilson Kazungu Katana and 101 others-versus-Salim Abdalla Bakshwein and another (2015)** eKLRat page 7, the Court of Appeal observed thus; “….*First, the parcel of land must be registered in the name of a person other than the applicant*……” 1. It is trite law that possession can take different forms such as fencing and cultivation of the land in dispute; see **Titus Ong’anga Nyachieo-versus-Martin Okioma Nyauma & 3 others (2017) eKLR.** It is evident that PW1 has been in peaceful and continuous possession of the portion of the suit land as had planted tea crop thereon. 2. Notably, registration of land can be challenged by way of overriding interests including adverse possession and trusts under **section 28 (h) of the** **Land Registration Act 2016 (2012)** and as held in inter alia, **Tayebali Adamji Alibhai-versus-Abdulhussein Adamji Alibhai (1938) 5 EACA 1** applied in **Kimani Ruchine and another-versus-Swift Rutherford company Limited (1976-80) 1 KLR 1500.** By dint of PExhibits 1 , 2 and 3, the plaintiff has acquired the one acre of the suit land by adverse possession and or constructive trust. 3. It is therefore, imperative that a permanent injunction to issue in line with the case of **Nguruman Ltd vs Jean Bonde Niel (2014) eKLR** and section 13 (7) of the Environment and Land Court, 2015 (2011) on permanent preservation orders. A pertains to general and special damages, I subscribe to the Court of Appeal decisions in **Eric Adome & another-vs-Pauline Kasumba Osebe & another {2014} KECA 417 (KLR) and Kuria Kiarie & 2 others-vs-Sammy Magera {2018} KECA 467 (KLR).** However, special damages not distinctly pleaded and proved and coupled with the circumstances, the plaintiff is not entitled to any damages herein. 4. In conclusion, the plaintiff’s case remains unchallenged; see also **Linus Nganga Kiongo & 3 others vs Town Council of Kikuyu [2012] KEHC 3881 (KLR).** 5. In light of the plaint, the firm evidence of PW1 and being guided by the standard of proof on a balance of probabilities as stated in the case of **Kirugi & another vs Kabiya & 3 others {1983} (KLR),** the plaintiff has proved this case accordingly. 6. Thus, judgment is hereby entered for the plaintiff against the defendants jointly and severally orders (a) (b) (c) as stated in paragraph 1 (a) (i) or/alternatively (ii). (b) and (c) hereinabove and since costs follow the event within the discretion of the court further to the proviso to **section 27 (1) of the Civil Procedure Act Chapter 21 Laws of Kenya** and the Supreme Court of Kenya in the case of **Jasbir Singh Rai & others vs Tarlochan Rai & others (2014) eKLR**, the defendants to bear the costs of this suit. 7. It is so ordered. **Dated** and **Delivered** at **KAPSABET** this **20th MAY 2026**. **HON. G M A ONG’ONDO** **JUDGE** **In the presence of;** 1. Mr. Felix Moshong instructed by Yuri learned counsel for the plaintiff 2. Walter, Court Assistant