Kenduiwo v Terer (Environment and Land Case 32 of 2019) [2026] KEELC 3840 (KLR) (18 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KERICHO** **ELC CASE NO. 32 of 2019 (OS)** **NORAH KENDUIWO………………………..……..….…….….PLAINTIFF** **VERSUS** **CHRISTOPHER KIPLANGAT TERER..……….…….......DEFENDANT** **JUDGEMENT.** **INTRODUCTION.** 1. The Plaintiff commenced the present proceedings vide the originating Summons dated 8th May, 2019. 2. The Originating Summons is expressed to be brought under **Section 38** of the Limitation of Actions and **Order 37 Rule 7** of the Civil Procedure Rules. 3. The Plaintiff seeks the following orders; 1. ***That the Plaintiff has become entitled by adverse possession to 0.6070 Hectares of that piece of land known as Land Parcel No. Kericho/Itembe 924 situated in Bomet County.*** 2. ***That the Plaintiff be registered as the proprietor of the said parcel of land measuring 0.6070 Hectares of that piece of land known as land parcel No. Kericho/Itembe/924 situated in Bomet County.*** 3. ***That the Deputy Registrar of the Honourable Court does execute all the necessary documents to facilitate registration of the Plaintiff as the absolute proprietor of 0.6070 Hectares of that piece of land known as land parcel No. Kericho/Itembe/924 situated in Bomet County.*** 4. ***That costs of this application be provided for.*** 4. The application is supported by the Supporting Affidavit sworn by the Plaintiff on 8th May, 2019. **FACTUAL BACKGROUND.** 1. On 14th October, 2019, the Court gave directions that the Originating Summons be deemed as a Plaint and the Defendant’s Replying Affidavit be deemed as a Defence. 2. The Court also directed that the Originating Summons be heard by way of *viva voce* evidence. **THE PLAINTIFF’S CONTENTION.** 1. The Plaintiff contends that the Defendant is the registered owner of land parcel No. Kericho/Itembe/924 which is situated in Bomet County. 2. The Plaintiff also contends that she took possession of a portion of the said parcel of land which measures 0.6070 Hectares in the year 1995. 3. The Plaintiff further contends that she established her home on the said portion of land and her children have also constructed their homes on it. 4. It is the Plaintiff’s contention that she has been in possession of the said portion of land for a period of over twelve years. 5. It is also the Plaintiff’s contention that the houses she initially built on the said portion were demolished and new ones constructed. 6. It is further the Plaintiff’s contention that when she took possession of the land, she planted Eucalyptus and Grevillea Robusta trees which trees she has started to harvest. 7. The Plaintiff contends that she has been in open, exclusive, continuous and uninterrupted use of the said portion of land and she has therefore acquired it by way of adverse possession. 8. The Plaintiff also contends that there are four houses constructed on the said portion where she stays with her children. 9. The Plaintiff further contends that initially the land was registered as Kericho/Itembe/734 in the name of **Kiprono Rutto Sino** (Deceased). 10. It is the Plaintiff’s contention that land parcel No. Kericho/Itembe/734 was subdivided and one of its resultant subdivisions is land parcel no. Kericho/Itembe/746 and goes on to state that land parcel No. Kericho/Itembe/746 was registered in the name of **Lucy Chepkoech Rutto**. 11. It is also the Plaintiff’s contention that on 24th February, 2000, land parcel No. **Kericho/Itembe/746** was subdivided into land parcel No’s **Kericho/Itembe/773** and **774** and adds that land parcel No. **Kericho/Itembe/773** was registered in the name of **Lucy Chepkoech Rutto.** 12. It is further the Plaintiff’s contention that on 14th October, 2015, land parcel No. **Kericho/Itembe/773** was subdivided and one of its resultant subdivisions; land parcel No. **Kericho/Itembe/924** was registered in the name of the Defendant. 13. The Plaintiff contends that despite the change in ownership, she has never been sued and/or evicted from the portion of land that she is in occupation of. 14. The Plaintiff also contends as at the year 2015, she had occupied the said portion of land for a period of over twelve years. 15. The Plaintiff ends her deposition by stating that she has now acquired land parcel No. **Kericho/Itembe/924** by way of adverse possession as per the provisions of **Sections 7, 13 & 17** of the **Limitation of Actions Act.** **THE DEFENDANT’S RESPONSE.** 1. The Defendant filed a Replying Affidavit sworn on 21st June, 2019 in response to the Originating Summons. 2. He deposes that the Plaintiff is his aunt and explains that she is the sister to his father. 3. He also deposes that he is the registered owner of land parcel No. **Kericho/Itembe/924.** 4. He further deposes that the Plaintiff has never occupied the suit parcel of land and goes on to state that in January, 2017, one of the Plaintiff’s sons, **Charles**, took possession of a portion of the suit parcel of land measuring 0.1 acres where he put up some structures. 5. It is his deposition that he planted the mature trees on the suit parcel of land. 6. It is also his deposition that the Plaintiff and her deceased husband one **Jeremiah Kenduiywa** have always lived on their plot in Bomet town in a place popularly known as Keben. 7. It is further his deposition that the Plaintiff’s deceased husband died in the year 2013 and he was buried in Nyambugo Village, Chebalungu Sub County within Bomet County. 8. He deposes that after the death of the Plaintiff’s husband, he was informed that the Plaintiff was alleging that she purchased a portion of the suit parcel of land from his brother one **Paul Rono.** 9. He also deposes that he is not privy to any agreement for sale of land that was entered into by his brother **Paul Rono.** 10. He further deposes that if the Plaintiff or any member of his family has any claims against his brother, they should pursue him instead of encroaching on his parcel of land. 11. It is his deposition that in May, 2018, the Chief Itembe Location summoned his brother **Paul Rono** with regard to a complaint that had been lodged by the Plaintiff and goes on to state that he was given a copy of the letter that summoned him. 12. It is also his deposition that since the Plaintiff has never occupied the suit property, she cannot claim any rights to it. 13. It is further his deposition that the occupation of the Plaintiff’s son of a 0.1-acre portion of the suit parcel of land does not confer any proprietary interests on the Plaintiff or her son. 14. He deposes that Kericho ELC Case No. 5 of 2016 was filed over the suit parcel of land between him and one **Wilson Yegon.** 15. He ends his deposition by stating that the Plaintiff is guilty of non-disclosure of material facts relating to the suit parcel of land and her claim should therefore be dismissed. **PLAINTIFF’S EVIDENCE.** 1. **Norah Kenduiywo** herein after referred to as **PW1** testified in support of the Plaintiff’s claim. She stated that she filed a witness statement dated 8th May, 2019 and prayed that it be adopted as part of her evidence-in-chief which prayer the Court acceded to. 2. It was her evidence that she has been in possession of land parcel No. Kericho/Itembe/924 since the year 1995. 3. It was also her evidence that she planted trees on the land and has constructed a house where she lives with her family. She produced a photograph of her house as **Exhibit P1(a).** 1. It was further her evidence that her children, **Charles Koech** and **Benard Koech** were captured in the said photograph and that the house was built in the year 1995. 2. She produced a second photograph which was marked as **Exhibit P1(b).** She testified that **Exhibit P1(b)** is a photograph of **Brian**’s house and added that **Brian** is one of her grandchildren. 3. She also testified that she built another house on the suit parcel of land in the year 2015. She produced a photograph of the said house as **Exhibit P1(c)** and another photograph as **Exhibit P1(d).** She further testified that before the house in the photograph produced as **Exhibit P1(d)** was constructed, there was another house which was demolished. 4. It was her evidence that **Exhibit P1(d)** clearly shows the trees that her husband and son planted and her house is on the right side of the photograph. 5. It was also her evidence that the fence shown on **Exhibit P1(d)** was put up by one of her sons, one **Charles Koech**. 1. She produced another photograph which was marked as **Exhibit P1(e)** and testified that it was a photograph of her makeshift gate and the trees that she planted. 2. It was further her evidence that she has planted crops on the suit parcel of land and that she also rears cattle on it. 3. She testified that no one has ever chased her away from the suit parcel of land and neither has anyone sued her. 4. She also testified that she fenced the suit parcel of land and no one has ever tried using it. 5. She further testified that at the time she was giving evidence, she had not planted crops on the land. 6. It was her evidence that she moved to the suit parcel of land with some of her children and later gave birth to one more child by the name **Elkanah Koech**. 7. It was also her evidence that **Elkanah Koech** is now an adult, graduated from university and added that he lives and works in Nairobi. 8. It was further her evidence that it is the Defendant who has the title deed to the suit parcel of land. 9. She testified that the Defendant is also known as **Stephen Rono.** She then produced a copy of the green card for land parcel No. Kericho/Itembe/746 as **Exhibit P2.** 10. **PW1** also produced the following documents; 1. ***A copy of the green card for land parcel No. Kericho/Itembe/773 as Exhibit P3.*** 2. ***A copy of the green card for land parcel No. Kericho/Itembe/924 as Exhibit P4.*** 3. ***A copy of the Certificate of Official Search for land parcel No. 924 as Exhibit P5.*** 11. In her witness statement, **PW1** reiterates the averments in the affidavit in support of the Originating Summons. 12. Upon cross examination, she confirmed that she is related to the Defendant and explained that the Defendant’s deceased father is her brother. 13. She also confirmed that the house on the photograph produced as **Exhibit P1(a)** now belongs to her son one **Charles Koech.** 14. She further confirmed that the said house initially belonged to her and she lived in it until she moved to a new house. 15. She admitted that the house appearing on the photograph produced as **Exhibit P1(b)** belongs to **Brian** who is her grandchild and the son to **Charles Koech**. 1. She confirmed that **Brian** is about twenty years old. 2. **PW1** admitted that the house appearing on the photograph produced as **Exhibit P1(c)** is her new house and that she built it in the year 2015. 3. She confirmed that she was not constructing any new house on the suit parcel of land and reiterated that **Exhibit P1(e)** is a photograph of her makeshift gate. 4. She also reiterated that her deceased husband planted the trees on the suit parcel of land and confirmed that he was not buried on it. 5. She stated that she did not know why her deceased husband was not buried on the suit parcel of land. 6. She confirmed that she knew **Paul Rono** who is the Defendant’s brother. 7. She also confirmed that she has never had any dispute with **Paul Rono** and admitted that it was her deceased husband who took her to the suit parcel of land in the year 1995. 8. She further confirmed that she was not aware of the conversations that were had between **Paul Rono** and her deceased husband. 1. She denied that she ever reported **Paul Rono** to their area Chief and stated that when she wanted to build a toilet on the land, she received a letter dated 4th May, 2018 from an advocate, one **Mitey**, who asked her not to build the toilet. 2. She also stated that after she received the said letter from the advocate, she reported the issue to the Chief. 3. She went on to narrate that after she reported to the Chief, he summoned **Paul Rono** to appear before him but he failed to do so. 4. She confirmed that she received several letters from the said advocate and also stated that sons, **Benard** and **Charles Koech** would not be giving evidence in the present suit. 5. She also confirmed that her last born son was born on the suit parcel of land and added that the suit land measures 1.55 acres. 6. She stated that the portion of land she is in occupation of has a boundary and it is a portion of land comprised in land parcel No. **Kericho/Itembe/924.** 7. She admitted that she did not produce any photograph to show the boundary and explained that **Exhibit P1(c)** showed the fence. 8. She confirmed that her house is on a 1.55-acre portion of the suit parcel of land and admitted that she was aware that there was another suit pending in Court over the same parcel of land. 9. She admitted that the said suit was between the Defendant and one **Wilson Yegon**. 10. Upon re-examination, she reiterated that the house appearing on **Exhibit P1(a)** belongs to her and stated that it was built by her deceased husband. 11. She also reiterated that the house appearing on the photograph produced as **Exhibit P1(b)** belongs to her grandson **Brian** and further reiterated that the portion of land she has fenced measures about 1.55 acres. 12. She reiterated that the entire parcel of land is fenced and stated that the cypress trees appearing on the Photograph produced as **Exhibit P1(c)** are surrounding the boundary. 13. **Daniel Kipngetich Meli** herein after referred to as **PW2** testified in support of thePlaintiff’s case. He stated that he filed a witness statement dated 8th May, 2019 and prayed that the Court adopts it as part of his evidence-in-chief which prayer the Court acceded to. 14. It was his evidence that the Plaintiff is one of his neighbors and explained that their parcels of land are next to each other. 15. It was also his evidence that the Plaintiff is not his relative and testified that he came to know her in the year 1998 when he purchased his land. 16. It was further his evidence that the land he purchased was close to the Plaintiff’s land. 17. He testified that he moved to his parcel of land in the year 2000 and he found the Plaintiff already in possession of her parcel of land. 18. He also testified that the Plaintiff had built a house, planted trees and was rearing cows at the time he moved to his land. 19. He further testified that the house the Plaintiff built on the suit parcel of land was made of timber and she lived in it with her children. 20. It was his evidence that the Plaintiff’s children have since moved from the suit parcel of land and she only resides on it with her eldest son. 21. When he was referred to the Photograph produced as **Exhibit P1(c),** he testified that the house appearing on the said photograph was built after he moved to his land. 22. He also testified that the said house is permanent and further testified that initially the Plaintiff used to live in a timber house. 23. When he was referred to the photograph produced as **Exhibit P1 (b)**, he testified that the house appearing thereon was the house that the Plaintiff was living in when he moved to his parcel of land. 24. It was his evidence that the houses previously constructed on the suit parcel of land were demolished and the permanent house constructed. 25. It was also his evidence that at the time he was moving to his parcel of land, the trees that were on the Plaintiff’s land included Cypress, Bluegum and traditional “*sebe*” trees. 26. When he was referred to the Photograph produced as **Exhibit P1(d),** he testified that the said photograph was of the trees that were planted on the Plaintiff’s parcel of land. 27. He also testified that the trees included indigenous trees known as “*Keliot*” and “*Chebitet”* trees. 1. He further testified that the Plaintiff ploughs the suit land and plants maize and napier grass. 2. He reiterated that the Plaintiff rears cattle on the suit parcel of land and testified that the permanent house was built in the year 2007. 3. It was his evidence that the permanent house was connected with electricity and water from the old house. 4. It was also his evidence that for all the time he has known the Plaintiff, no one has disturbed her occupation or evicted her. 5. It was further his evidence that he knew the Defendant and testified that the land the Plaintiff is in occupation of belonged to the Defendant’s deceased parents. 1. He testified that the Defendant was born and raised on the said parcel of land. 2. He also testified that he thought that the Defendant was either born between the years 1965 and 1967 and could either be 55 or 57 years old. 3. He further testified that the Defendant is the son to **Lucy Siro** who gave the Plaintiff land. 4. It was his evidence that as at the year 2018, he was a village elder. 5. It was also his evidence that in the said year, the Plaintiff took a letter written to him by the Chief and complained that the Defendant wanted to evict her. 6. It was further his evidence that he shared the letter with the Defendant. 7. He testified that the Plaintiff informed him that the Defendant and his brothers wanted to evicted her and also testified that he did not witness them threatening her. 8. He also testified that the Plaintiff reported the said issue to the Chief. 9. He was referred to the letter dated 3rd May, 2018 which appeared as document No. **1** on the Defendant’s list of documents. 10. It was his evidence that the letter was addressed to **Paul Rono** who was the Defendant’s elder brother. 11. It was also his evidence that the said letter referred to a land dispute with regard to the suit parcel of land. 12. It was further his evidence that after he served the Defendant and his brother with a letter summoning them, they did not appear before him. 13. He reiterated that it was the Plaintiff who had complained to him and testified that the Defendant was the youngest in his family. 14. He also testified that he has never heard the other brothers complaining about the Plaintiff. 15. **PW2** further testified that between the time he got to his land to the year 2018, a period of about twenty years had lapsed. 16. It was his evidence the Plaintiff has been living on the land for a period of twenty years. 17. Upon cross examination, **PW2** was referred to the Photograph produced as **Exhibit P1(c)** and he confirmed that it was a photograph of the Plaintiff’s house. 18. He also confirmed that there were houses initially constructed on the suit parcel of land which houses were demolished to pave way for the construction of the permanent house. 19. He further confirmed that the Plaintiff now lives with her eldest son, aged about 52 or 53 years, in the said house. 20. He admitted that the Plaintiff is the Defendant’s Aunt and stated that at the time he moved to his land, the Plaintiff’s husband was alive and added that the Plaintiff’s husband died in the year 2018 and was buried on his father’s land. 21. He admitted that as at the year 1998, there were trees planted on the suit parcel of land but admitted that he did not know who planted. 22. Upon re-examination, he reiterated that the trees appearing in the photograph produced as **Exhibit P1(c)** were on the suit parcel of land at the time he took possession of his land. 23. The Plaintiff’s case was then closed. **THE DEFENDANT’S EVIDENCE.** 1. **Christopher Terer** hereinafter referred to as **DW1** testified for the defence. He stated that he filed a witness statement dated 1st November, 2019 and prayed that it be adopted as part of his evidence-in-chief which prayer the Court acceded to. 2. It was his evidence that he is the registered owner of land parcel No. **Kericho/Itembe/924.** 3. He was referred to the copy of the Certificate of Official Search that was produced as **Exhibit P5** and he testified that it was for land parcel No. **Kericho/Itembe/924.** 4. He also testified that the Certificate of Official Search was issued on 2nd May, 2018. 5. He further testified that the Certificate of Official Search showed that he was issued with a title deed on 14th October, 2015. 6. It was his evidence that the Plaintiff is not in possession of the suit parcel of land. 7. It was also his evidence that it is the Plaintiff’s son, one **Charles** who is in possession of the land. 8. It was further his evidence that **Charles** took possession of the suit parcel of land in the year 2017. 9. He testified that he instructed his advocates to write a demand letter to him which demand letter was written but it was undated. 10. He also testified that **Charles** forcefully took possession of a portion of the suit parcel of land and the letter was to caution him not to undertake any developments on it. 11. He produced a copy of the undated demand letter as **Exhibit D1.** 12. He further testified that Kericho ELC Case No. 5 of 2016 was filed against him and added that he attached a copy of the Statement of Defence filed therein to the Replying Affidavit filed in the present suit. 13. It was his evidence that the Court made a finding that land parcel No. **Kericho/Itembe/924** belonged to him. 14. When the Court requested to see a copy of the judgement, Counsel for the Defendant conceded that the said judgement did not relate to the suit parcel of land. 15. Counsel also withdrew that line of questioning and also conceded that the Statement of Defence was not of importance to the present proceedings. 16. It was **DW1**’s evidence that the Plaintiff claimed that his brother one **Richard Maritim** had sold the land to her. 17. It was further his evidence that the Plaintiff dropped the claim against **Richard** and filed the suit against him. 18. He testified that the Chief summoned them over the dispute relating to the suit parcel of land vide the letter dated 3rd May, 2018 which letter is attached to the Replying Affidavit filed in the present suit. He produced a copy of the letter dated 3rd May, 2018 as **Exhibit D2**. 19. He also testified that the said letter was written before the institution of the suit. 20. He further testified that before the suit was filed, they were not living peacefully on the suit parcel of land. 21. It was his evidence that the Plaintiff has not been in occupation of the suit parcel of land for more than twelve years. 22. It was also his evidence that he planted the trees that are on the suit parcel of land. 23. When he was referred to the photographs produced as **Exhibit P1(a), (b), (c)** and **(d),** he testified that the houses appearing on the said photographs were built in the year 2018 after he served the Plaintiff and one **Charles** with demand letters. 24. It was further his evidence that after the present suit was filed, more houses were built on the suit parcel of land some of which were completed and others were not. 25. He testified that he filed a Notice of Motion application dated 5th July, 2021 and the Court issued *status quo* orders. 26. He also testified that the said houses were built despite the orders of the Court and in conclusion of his testimony prayed that the suit be dismissed with costs. 27. In his witness statement, **DW1** states that the Plaintiff lives in Keben and has never lived on the suit parcel of land. 28. He also states that it was after the demise of her husband in the year 2013, that she begun to lay claim to the suit parcel of land. 29. Upon cross examination, **DW1** confirmed that his name is **Christopher Kiplangat Terer** and his other name is **Christopher Rono**. 30. He also confirmed that at home, he is also known as **Stephen.** 31. He further confirmed that he was born in the year 1974 in Bomet County where the suit parcel of land is located. 32. He stated that his deceased parents are buried on the suit parcel of land. 33. He admitted that the Plaintiff is his Aunt as she is the sister to his father. 34. He confirmed that the Plaintiff and his deceased father were born in Keben, Bomet County. 35. He also confirmed that the distance between Keben and the suit parcel of land is three kilometers. 36. He stated that a white man had given his deceased father the suit parcel of land and denied that the suit parcel of land was initially registered in the name of his grandfather. 37. He also stated that the Plaintiff lives in Keben and she first alleged that his brother sold the land to her but did not disclose when the alleged sale took place. 38. He reiterated that the land belonged to his deceased father and confirmed that he is now the registered proprietor of the said parcel of land. 39. He also confirmed that it is **Charles Koech**, the Plaintiff’s son who lives on the suit parcel of land. 40. When he was referred to the undated letter that was produced as **Exhibit D1,** he admitted that the letter was addressed to the Plaintiff and not **Charles**. 41. He stated that the letter was served upon the Plaintiff and she received it but admitted that he had no evidence to show that she actually received it. 42. He confirmed that the said letter referred to building materials that had been placed on the suit parcel of land and demanded that they be removed. 43. He admitted that the Plaintiff did not remove the said building materials and instead, she built a wooden structure. 44. When he was referred to the photographs that were produced as **Exhibit P1(a), (b), (c) & (d)**, he confirmed that the Plaintiff built the house appearing on **Exhibit P1(a).** 45. He also confirmed that the Plaintiff built the brick house appearing on the photograph that was produced as **Exhibit P1(c)** and stated that he is the one who planted the trees that appeared thereon. 46. He admitted that he cut down some of the trees while the other trees are still on the land. 47. He stated that his father died in the year 1998 while his mother died soon after. 48. When he was referred to the letter dated 3rd May, 2018 that was produced as **Exhibit D2**, he confirmed that **Paul Rono** is his brother. 49. He admitted that the author of the said letter was their area Chief one **Daniel Morusoi**. 50. He confirmed that he was not aware that the author of the said letter testified as **PW2.** 51. He explained that the person who testified as **PW2** was **David Meli** who is a neighbor and not the area Chief. 52. He stated that he did not agree with **PW2**’s testimony and confirmed that the Sotik – Bomet Highway passes through the suit parcel of land. 53. He confirmed that he lives on and ploughs the land and admitted that he has never reported the matter to the police. 1. He also confirmed that they all have a problem with the Plaintiff’s occupation of the suit parcel of land. 2. Upon re-examination, he stated that the Plaintiff has land in Bomet and in Nyambugo where her deceased husband was buried in the year 2013. 3. He also stated that the developments on the suit parcel of land are recent. 4. He further stated that the Plaintiff received the demand letter which demand letter was responded to. 5. He stated that the demand letter was addressed to the Plaintiff and not **Charles** as she was the one who made a report to the Chief. 6. He also stated that it was **Charles** and himself who are in possession of the suit parcel of land. 7. He reiterated that the land belonged to his father and not his grandfather. 8. **Richard Maritim** herein after referred to as **DW2** was the second witness to testify for the defence. It was his evidence that the Defendant is his brother while the Plaintiff is his father’s sister. 9. It was also his evidence that the dispute in the present suit relates to land parcel No. **Kericho/Itembe/924** which is registered in the name of the Defendant. 10. It was further his evidence that before the land was registered in the Defendant’s name, it was registered in the name of their deceased mother one **Lucy Ruto**. 11. He testified that after the Plaintiff’s husband died in the year 2013, the Plaintiff entered the suit parcel of land then sued him while claiming that he sold land to her deceased husband. 12. He also testified that the they tried to resolve the issue as a family but before it was resolved, the Plaintiff went to the Chief and before the Chief could resolve the dispute the Plaintiff went to Court. 13. He further testified that in the year 2017, the Plaintiff took possession of the suit parcel of land forcefully and constructed a house for herself and her son. 14. It was his evidence that at the time he was giving evidence, the Plaintiff’s son one **Charles** was in occupation of a portion of the suit parcel of land. 15. It was also his evidence that prior to the year 2017, the Plaintiff and her son were not in possession of the land. 16. It was further his evidence that the Plaintiff lives with her other children at Kapkesosio where her deceased husband was buried. 17. He testified that Kapkesosio is located in Bomet County. 18. He also testified that the Plaintiff took possession of the suit parcel of land by constructing structures on a 50 x 100 portion. 1. He further testified that the Defendant is in occupation of a 1.4-acre portion of the suit parcel of land. 2. It was his evidence that the Defendant lives on the land together with the children of their deceased brother one **Christopher Rono.** 3. It was also his evidence that the Plaintiff’s allegations that her deceased husband purchased land from him were not true. 4. It was further his evidence that **David Meli** is one of their neighbors and that he has known him for six years. 5. He testified that the said **David Meli** used to live in Kericho and he moved to their area six years before he gave evidence. 6. He also testified that he has lived on the suit parcel of land since he was born but he later moved to another parcel of land. 7. He further testified that his deceased mother, father and brother were buried on the suit parcel of land. 8. It was his evidence that his grandfather **Arap Bunyuny** (Deceased) and his grandmother **Tapsabei** (Deceased) were also buried on the suit parcel of land. 9. It was also his evidence that his deceased grandmother and grandfather are parents of the Plaintiff. 10. It was further his evidence that the Plaintiff was born and raised on the suit parcel of land as she is the sister to their father. 11. He testified that the suit parcel of land belongs to the Defendant. 12. Upon cross examination, he confirmed that his brother who passed on was known as **Christopher Kibet Rono**. He also confirmed that the name of the Defendant is **Christopher Terer**. 13. He further confirmed that the Plaintiff lives in Kapkesosio where her deceased husband was buried. 14. He stated that the suit parcel of land measures 1.5 acres and when he was referred to the copy of the green card of the suit parcel of land that was produced as **Exhibit P4,** he admitted that the land measures 0.79 Ha. 15. He confirmed that his deceased father and the Plaintiff were born on land parcel No. 924 where that his deceased grandparents and parents were buried and where he was raised. 16. He admitted that he did not live on the suit parcel of land and reiterated that the Defendant, the children of their deceased brother and the Plaintiff’s son live on the suit parcel of land. 17. When he was referred to the photographs produced as **Exhibit P1(a), (b), (c) & (d),** he confirmed that **Exhibit P1(a)** is of a house that is made of timber and belongs to the Plaintiff’s son. 1. He also confirmed that **Exhibit P1(b)** is a photograph of a house built with timber which house he could not recognize. 2. He further confirmed that **Exhibit P1(c)** is of a brick house that was built by the Plaintiff in the year 2017. 3. He admitted that he could not recognize the house and trees that were on the photograph produced as **Exhibit P1(d).** 4. He also admitted that the house on **Exhibit P1(a)** was built in the year 2013 by the Plaintiff. 5. He confirmed that the Plaintiff built the house as the dispute was being heard by the family. 6. He admitted that there was no suit filed in Court between the years 2013 and 2019 until the Plaintiff filed the present suit in the year 2019. 7. He also admitted that they wanted to chase the Plaintiff away but the brothers of his deceased father dissuaded them. 8. He confirmed that he was fifty-six years old and also confirmed that the Plaintiff used to visit the suit parcel of land as she was their deceased father’s sister. 9. Upon clarification by the Court, he stated that according to the Plaintiff, she took possession of the suit parcel of land in the year 1995. 10. **Wilson Arap Soi** testified as **DW3**. It was his evidence that the Plaintiff and the Defendant are his neighbors. 11. It was also his evidence that the Plaintiff and Defendant are disputing over a parcel of land whose number he could not remember. 12. It was further his evidence that the land measures about two acres and it is occupied by **Charles** the Plaintiff’s son and the Defendant. 13. He testified that Charles took possession of a portion of the suit parcel of land which measures 50 x 100 feet in the year 2017. 14. He also testified that the Defendant occupies about 1.8 to 1.9-acre portion of the suit parcel of land. 15. He further testified that the children of **Christopher Rono** (deceased) who was a brother to the Defendant live on the portion occupied by the Defendant. 16. It was his evidence that the Plaintiff has never lived on the suit parcel of land. 17. It was also his evidence that the Plaintiff is their relative and she visits and goes back to her home where she is married. 18. It was further his evidence that the Defendant’s deceased father and the Plaintiff are brother and sister. 19. He testified that before the Plaintiff got married, she lived on the suit parcel of land as she was part of their family. 20. He also testified that the Plaintiff lives in Kapkesosio which is about ten kilometers from where **Terer** lives and she has lived there for about forty to fifty years. 21. He further testified that he knew **PW2**. It was his evidence that **PW2** purchased land around their area around six years before he gave his evidence and he moved from Kericho to Bomet. 22. Upon cross examination, he confirmed that he is the Plaintiff and the Defendant’s neighbor and admitted that he could not remember his parcel number. 23. He stated that he did not purchase his parcel of land and confirmed that **Christopher Rono** (Deceased) and **Christopher Terer** are brothers. 1. He admitted that he did not know why they shared the same first name. 2. He confirmed that the distance between his parcel of land and the suit parcel of land is about fifty meters. 3. When he was referred to **Exhibit P1(a),** he admitted that the house appearing on the said photograph belonged to **Charles**. 4. He confirmed that the said house was built between the years 2017 to 2018 by **Charles** and he lives there with his children. 5. He also confirmed that there was another house where the children of **Christopher Rono** (Deceased) were living. 6. He further confirmed that there was a house on the suit parcel of land where **Christopher Rono** (Deceased) used to live and another house was built when he passed away. 7. He admitted that he could not remember the year **Christopher Rono** (Deceased) died and stated that the Defendant’s house is made of wood. 8. He confirmed that the suit parcel of land is family land and **Charles** took possession of a portion of it while alleging that his deceased father had purchased a portion of it. 9. He also confirmed that the Defendant was tilling the land. 10. He admitted that he did not know the person who planted the trees appearing on **Exhibit P1(d).** 11. He confirmed that **David Meli** who testified as **PW2** purchased a portion of his parcel of land from one Robert six years before he gave evidence. 12. The Defendant’s case was then closed. **ISSUES FOR DETERMINATION .** 1. The Plaintiff filed submissions on 3rd December, 2025 while the Defendant filed submissions on 19th January, 2026. **The Plaintiff’s Submissions.** 1. The Plaintiff sets out the prayers sought in the Originating Summons, the evidence adduced during the hearing and submits on the following issue; 1. ***Whether the Plaintiff has met the threshold for grant of orders for adverse possession.*** 2. The Plaintiff relies on **Sections 38(1) & (2)** of the Limitation of Actions Act, the judicial decision of **Mtana Lewa vs Kahindi Ngala Mwagandi [2015] eKLR** and submits that in the year 1995, she took possession of a 0.6070 Ha portion of land comprised in land parcel No. Kericho/Itembe/734 then registered in the name of her brother one **Kipruto Rutto Sino**. 3. The Plaintiff also submits that in the year 1998, **Kipruto Rutto Sino** transferred land parcel No. Kericho/Itembe/734 to his wife one **Lucy Chepkoech Rutto** which parcel of land was then registered as land parcel No. Kericho/Itembe/746. 4. The Plaintiff further submits that land parcel No. **Kericho/Itembe/746** was subdivided into land parcel No’s **Kericho/Itembe/773 and 774.** 5. It is the Plaintiff’s submissions that the portion of land she is in occupation of was part of land parcel No. Kericho/Itembe/773 which was registered in the name of **Lucy Chepkoech Ruto.** 6. It is also the Plaintiff’s submissions that land parcel No. **Kericho/Itembe/773** was subdivided into land parcel No’s **Kericho/Itembe/924,930,935** and **936** in the year 2008. 7. It is further the Plaintiff’s submissions that the portion of land that she is in possession of now forms part of land parcel No. **Kericho/Itembe/924** which measures 0.79 Hectares. 8. The Plaintiff submits that land parcel No. **Kericho/Itembe/746** was her ancestral land where she and the Defendant’s father one **Kiprono Rutto Sino** were born and raised. 9. The Plaintiff also submits that their parents were buried on the suit parcel of land and that she is now 84 years old. 10. The Plaintiff further submits that she took possession of a portion of the suit parcel of land after her husband passed away. 11. It is the Plaintiff’s submissions that she established her home on the said portion, cultivated crops and planted trees. 12. It is also the Plaintiff’s submissions that she constructed two houses on the said portion of land. 13. It is further the Plaintiff’s submissions that she lives in one house while her two sons live in the other house. 14. The Plaintiff submits that at the time of registration of land parcel No. **Kericho/Itembe/924**, she was in possession of the 0.6070 Ha portion while the Defendant occupies 0.18 Ha. 15. The Plaintiff relies on the judicial decisions of **Munyaka Kuna Company Limited vs Bernado Vicezo De Masi (The Administrator of the Estate of Domenico De Masi (Deceased) [2018] eKLR**, **Wilson Kazungu Katana & 101 others versus Salim Abdalla Bakshwein & another [2015] eKLR, Kasuve Mwaani Investments Limited & 4 Others [2004] I KLR 184** and reiterates that she has been in possession of the said portion of the suit parcel of land which is their ancestral land. 16. The Plaintiff also submits that her possession of the suit parcel of land has been peaceful, uninterrupted, open and continuous until the year 2017 when the Defendant served her with a demand notice with the intention of evicting her. 17. The Plaintiff further submits that as at the year 2017, the Defendant had sold to third parties twenty-eight acres of their ancestral land. 18. It is the Plaintiff’s submissions that she produced photographs that show the houses constructed and the trees planted on the portion of the suit parcel of land that she is in occupation of. 19. It is also the Plaintiff’s submissions that she produced the green card for land parcel No. **Kericho/Itembe/773** which shows that it was closed on 29th May, 2008 upon subdivided into land parcel No’s **Kericho/Itembe/924, 930, 935** and **936.** 20. It is further the Plaintiff’s submissions that she produced a copy of the green card for land parcel No. Kericho/Itembe/924 together with the certificate of official search dated 2nd May, 2018. 21. The Plaintiff reiterates her evidence on the various houses that appear on the photographs that were produced as **Exhibit P1 (a), (b), (c), (d) & (e)** and submits that her possession has been without force, secrecy and/or permission from the Defendant. 22. The Plaintiff also submits that despite the changes in the proprietorship of the suit parcel of land, she has continued to be in possession and use of a portion of the land which measures 0.6070 Ha. 23. The Plaintiff concludes her submissions by urging the Court to grant the prayers sought in the Originating Summons. **The Defendant’s Submissions.** 1. The Defendant sets out the prayers sought in the Originating Summons, a summary of the evidence adduced during the hearing and submits on the following issues; 1. ***Whether the Plaintiff has been in actual, peaceful, uninterrupted, hostile and exclusive possession of the property known as Title No. Kericho/Itembe/924 for a period of at least 12 years.*** 2. ***What remedies are available to the parties herein.*** 2. On the first issue, the Defendant submits that the Plaintiff is his aunt and she has not been in actual, peaceful, hostile and exclusive possession of the suit parcel of land. 3. The Defendant also submits that **DW1** and **DW2**’s evidence on their familial relationship was not controverted. 4. The Defendant further submits that even though the Plaintiff contends that she took possession of a portion of the suit parcel of land in the year 1995, she did not lead any evidence as to the circumstances under which she took possession. 5. It is the Defendant’s submissions that the suit parcel of land, that is land parcel No. **Kericho/Itembe/924,** comprises of family land where the Plaintiff’s parents are buried. 6. It is also the Defendant’s submissions that the Plaintiff did not prove exclusive possession of the suit parcel of land given that he also asserts that he is in possession alongside his brother’s widow and children. 7. It is further the Defendant’s submissions that the Plaintiff’s possession is neither hostile nor exclusive. 8. The Defendant relies on the judicial decisions of **Celina Muthoni Kithinji vs Safiya Binti Swaleh & 8 Others [2018] eKLR** and **Ruth Wangari Kanyagia vs Josephine Muthoni Kinyanjui [2017] eKLR** in support of his submissions. 9. The Defendant submits that by virtue that the Plaintiff is his deceased father’s biological sister and that since the suit parcel of land was initially a portion of their ancestral land, it follows that the Plaintiff cannot claim adverse possession. 10. The Defendant relies on the judicial decisions of **Mbai vs Maranya [1993] KLR 726, Rodgers Mwambaje vs Doghlas Mwambaje [2014]eKLR, Gilbert Kimutai Koech vs Wilson Kipngeno Koech [2018] eKLR** and urges the Court to dismiss the Originating Summons with costs. **ANALYSIS AND DETERMINATION.** 1. After considering the pleadings, the evidence adduced by both the Plaintiff and the Defendant together with their respective submissions, it is my view that the following issues arise for determination; 1. ***Whether the Plaintiff has acquired a 0.6070 acre portion of land comprised in land parcel No. Kericho/Itembe/924 by way of adverse possession.*** 2. ***Whether the prayers sought in the Originating Summons should be granted.*** 3. ***Who should bear costs of the suit.*** **Summary of evidence and documents.** 1. I shall start by briefly summarizing the evidence of the parties herein and the documents produced either is support of the claim or in opposition to it. 2. It is the Plaintiff’s case that in the year 1995, she took possession of a 0.6070-acre portion of land comprised in land parcel No. **Kericho/Itembe/734.** 3. It is also the Plaintiff’s case that land parcel No. **Kericho/Itembe/734** was later registered as land parcel No. **Kericho/Itembe/746.** 4. It is further the Plaintiff’s case that land parcel No. Kericho/Itembe/746 was subdivided and one of its resultant subdivisions, that is land parcel No. **Kericho/Itembe/773** was registered in the name of **Lucy Chepkoech Ruto**. 5. It is the Plaintiff’s case that later land parcel No. **Kericho/Itembe/773** was subdivided and one of its resultant subdivisions, that is land parcel No. **Kericho/Itembe/924** was registered in the name of the Defendant. 6. It is also the Plaintiff’s case that the portion of land she has all along been in possession of, now forms part of land parcel No. **Kericho/Itembe/924.** 7. It is further the Plaintiff’s case that she built houses on the said portion of land some of which were demolished to pave way for the construction of a permanent house. 8. It is the Plaintiff’s case that she also planted a variety of trees which trees are mature and ready for harvesting. 9. It is also the Plaintiff’s case that she lives on the said portion of land with her sons. 10. It is further the Plaintiff’s case that in the year 2017, the Defendant wrote her a demand letter with the intention of evicting her. 11. It is the Plaintiff’s case that she reported the issue to **PW2** but when the Defendant was summoned, he failed to show up. 12. It is also the Plaintiff’s case that she thereafter filed the present suit wherein she seeks orders of adverse possession. 13. In support of her case, the Plaintiff produced a bundle of photographs as **Exhibits P1 (a), (b), (c), (d) & (e).** The Plaintiff and her witness set out in great detail what is captured in the said photographs. 14. A certified copy of the green card for land parcel No. **Kericho/Itembe/746** was produced as **Exhibit P2**. It shows that the green card was opened on 3rd December, 1998 and the land measures 5.39 Ha. The green card also shows that land parcel No. **Kericho/Itembe/746** is one of the resultant subdivisions of land parcel No. **Kericho/Itembe/734.** 15. Entry No. 1 is dated 3rd December, 1998 when **Lucy Chepkoech Rutto** was registered as the owner. Entry No. 2 is also dated 3rd December, 1998 when she was issued with a title deed. Entry No. 3 is dated 24th February, 2000 when the title deed was closed upon subdivision into land parcel No’s 773 & 774. The copy of the green card is certified by the District Land Registrar, Bomet on 26th April, 2019. 16. A certified copy of the green card for land parcel No. **Kericho/Itembe/773** was produced as **Exhibit P3.** It shows that the green card was opened on 24th February, 2000 and the land measures 5.29 Ha. It also shows that land parcel No. **Kericho/Itembe/773** is one of the resultant subdivisions of land parcel No. **Kericho/Itembe/746**. Entry No. 1 is dated 24th February, 2000 when it was registered in the name of **Lucy Chepkoech Rutto.** Entry No. 2 is dated 29th May, 2008, when the green card was closed for subdivision into land parcel No’s 921, 930, 935 and 936. It is certified as a true copy by **J.K Ngeno.** 17. A certified copy of the green card for land parcel No. **Kericho/Itembe/924** was produced as **Exhibit P4.** It shows that the green card was opened on 29th May, 2008 and the land measures 0.79 Ha. Entry No. 1 is dated 29th May, 2008 when **Lucy Chepkoech Rutoo** (sic) was registered as the owner. Entry No. 2 is dated 14th October, 2015 when **Christopher Kiplangat Terer** was registered as the owner. Entry No. 3 is also dated 14th October, 2015 when the title deed was issued. 18. A copy of the certificate of official search for land parcel No. **Kericho/Itembe/924** was produced as **Exhibit P5.** The Certificate of Official Search was issued on 2nd May, 2018 and it shows that on 14th October, 2015, **Christopher Kiplangat Terer** was registered as the owner of the said parcel of land and was issued with a title deed on the same day. 19. It is the Defendant’s case that the Plaintiff is his deceased father’s sister. 20. It is also the Defendant’s case that his deceased father and the Plaintiff were born and raised on the suit parcel of land. 21. It is further the Defendant’s case that his grandparents, who are the Plaintiff’s parents were buried on the suit parcel of land which is their ancestral land. 22. It is further the Defendant’s case that in the year 2017, one of the Plaintiff’s sons, **Charles,** took possession of a portion of the suit parcel of land. 23. It is the Defendant’s case that he instructed his advocates to write a letter to **Charles** which letter asked him not to make any developments on the suit parcel of land. 24. It is also the Defendant’s case that after the letter was served, Charleswent on to construct a house on a portion of the suit parcel of land. 25. It is further the Defendant’s case that the Plaintiff is not in possession of the suit parcel of land as she lives in Keben. 26. It is the Plaintiff’s case that the suit parcel of land forms part of their ancestral land and therefore the Plaintiff cannot claim adverse possession. 27. In support of his case, the Defendant produced a copy of an undated demand letter as **Exhibit D1**. He set out in great detail the contents of the said demand letter in his evidence. 28. A copy of a letter dated 3rd May, 2018 was produced as **Exhibit D2.** The letter is written by **David K. Marusoi**, the Senior Chief Itembe Location and addressed to **Paul Rono**, Chepkochun Village. The reference of the letter is “*Land Dispute*”. The letter summons **Paul Rono** to appear in his office on 7th May, 2008 as there has been a complaint filed by **Norah Kenduiwo**. The letter is copied to **Norah Kenduiwo**. **A. Whether the Plaintiff has acquired a 0.6070-acre portion of land comprised in land parcel No. Kericho/Itembe/924 by way of adverse possession.** 1. **Section 38 (1)** and **(2)** of the **Limitation of** **Actions Act** provides as follows: ***“(1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.*** ***(2) An order made under subsection (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.”*** 1. The Court of Appeal in **Kasuve Vs Mwaani Investments Limited & 4 others 1 KLR 184** held as follows; ***“In order to be entitled to land by Adverse Possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right without interruption for a period of 12 years either after dispossessing the owner or by discontinuation of possession by the owner on his own volition”*** (Emphasis mine) 1. It is not disputed that land parcel No. **Kericho/Itembe/924** is registered in the name of the Defendant. 2. It is also not disputed that land parcel No. **Kericho/Itembe/924** is one of the resultant subdivisions of land parcel No. **Kericho/Itembe/773.** 3. It is further not disputed that land parcel No. **Kericho/Itembe/773** was registered in the name of the Defendant’s deceased mother one **Lucy Chepkoech Ruto**. 4. It is not disputed that land parcel No. **Kericho/Itembe/773** was one of the resultant subdivisions of land parcel No. **Kericho/Itembe/746** which was initially registered as **Kericho/Itembe/734.** 5. It is further not disputed that land parcel No. **Kericho/Itembe/734** was registered in the name of **Kipruto Rutto Sino,** the Defendant’s deceased father and the Plaintiff’s brother. 6. It is not disputed that the suit parcel forms part of the Plaintiff and the Defendant’s ancestral land as the Plaintiff is the Defendant’s aunt. 7. What is in dispute is whether the Plaintiff is in possession of a portion of the suit parcel of land and whether, by virtue of her familial relationship with the Defendant, the Plaintiff can claim adverse possession. 8. In her evidence, the Plaintiff testified that she took possession of the suit parcel of land in the year 1995. **David Kipngetich Meli** who testified as **PW2** stated that when he moved to his parcel of land in the year 1998, he found the Plaintiff in possession of the suit parcel of land. 9. The Defendant who testified as **DW1** stated that the Plaintiff was not in possession of the suit parcel of land as she lives in Keben. It was his evidence that it is the Plaintiff’s son, one **Charles** who is in possession of the land since the year 2017. 10. **Richard Maritim**, who testified as **DW2** stated in his evidence that the Plaintiff and their deceased father were brought up on the suit parcel of land. It was also his evidence that the Plaintiff begun to claim the land in the year 2013 and in the year 2017, she forcefully took possession of the land together her son **Charles**. 11. **Wilson Arap soi** who testified as **DW3** however, gave evidence that the Plaintiff has never been in possession of the suit parcel of land and that it is her son, one **Charles** who is in possession. 1. As stated, it is not in dispute that the Plaintiff and the Defendant’s deceased father were siblings and therefore the Plaintiff and the Defendant are close relatives. **DW2**’s evidence that the Plaintiff and their deceased father were brought up on the suit parcel of land was not disputed. 2. The issue that therefore arises is whether the Plaintiff can claim adverse possession against the Defendant who is her close relative. 3. The Court of Appeal in **Kihamba v Mbaisi [2015] KECA 853 (KLR) held** as follows; ***42 “…Could the doctrine of adverse possession apply against the parties to the suit before the learned Judge who were related by being mother and step-son? We think not. We are persuaded by various dicta which we have quoted and relied upon in this judgement and must state that it would create havoc for families and the society of Kenya generally if the principle of adverse possession applied within families against close relatives.”*** (Emphasis mine) 1. In the above cited judicial decision, the Court of Appeal held that it would create havoc for families if adverse possession would apply against close relatives. 2. As stated, it is not in dispute that the Plaintiff is the Defendant’s Aunt and it is also not in dispute that she was born and raised on the suit parcel of land. On account of this close relationship it would be absurd to find that the Plaintiff has acquired a portion of the suit parcel of land by way of adverse possession. 3. The Plaintiff’s claim of adverse possession therefore fails. **B. Whether the prayers sought in the Originating Summons should be granted.** 1. The prayers sought in the Originating Summons have been set out in the preceding paragraphs but I will nonetheless replicate them as hereunder for ease of reference; 1. ***That the Plaintiff has become entitled by adverse possession to 0.6070 Hectares of that piece of land known as Land Parcel No. Kericho/Itembe 924 situated in Bomet County.*** 2. ***That the Plaintiff be registered as the proprietor of the said parcel of land measuring 0.6070 Hectares of that piece of land known as land parcel No. Kericho/Itembe/924 situated in Bomet County.*** 3. ***That the Deputy Registrar of the Honourable Court does execute all the necessary documents to facilitate registration of the Plaintiff as the absolute proprietor of 0.6070 Hectares of that piece of land known as land parcel No. Kericho/Itembe/924 situated in Bomet County.*** 4. ***That costs of this application be provided for.*** 2. Given my finding on issue (**A**) above, the said prayers cannot be granted. **C. Who should bear costs of the suit.** 1. 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).** 2. A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. **DISPOSITION.** 1. In the result, I find that the Plaintiff’s suit lacks merit and it is hereby dismissed. 2. Each party shall bear own costs of the suit. This is because the parties to this suit are close relatives and this Court is intent in ensuring that the already fractured relation between them is mended and does not disintegrate any further. 3. It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 18TH DAY OF JUNE, 2026.** **L. A. OMOLLO** **JUDGE.** **In the presence of: -** **Miss Chepkulul for the Plaintiff.** **Mr. Koech for the Defendant.** **Court Assistant; Mr. Joseph Makori.**