Chumba v Murei (Enviromental and Land Originating Summons E010 of 2023) [2026] KEELC 3561 (KLR) (9 June 2026) (Judgment)

Chumba v Murei (Enviromental and Land Originating Summons E010 of 2023) [2026] KEELC 3561 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] KEELC 3561 (KLR) Republic of Kenya In the Environment and Land Court at Kapsabet Enviromental and Land Originating Summons E010 of 2023 GMA Ongondo, J June 9, 2026 Between Philip Kipkosgei Chumba Plaintiff and Kimeto Arap Murei Respondent Judgment A. Introduction 1.Article 64 of the Constitution of Kenya 2010 provides that Private Land consists of, inter alia, registered land held by any person under any freehold tenure or any other land declared private land under an Act of Parliament. 2.The land in dispute in the instant suit is Title number Nandi /Ndalat /269 measuring approximately Three Decimal Two Four Hectares (3.24 Ha) in area (The suit property herein) registered in the name of the defendant, Kimeto Arap Murei. It is located within Nandi County. 3.On 22nd July 2025, the court directed that the matter proceeds by way of viva voce evidence and Order 37 Rule 19 of the Civil Procedure Rules 2010, was invoked accordingly. B. The Plaintiff’s Case 4.The plaintiff through J.K. Kaptich and Company Advocates instituted the present suit by way of an Originating Summons dated 16th August 2023 claiming to have acquired title of the suit property by adverse possession and for determination of the questions thus;a.Whether the plaintiff herein has acquired title of the suit property by adverse possession.b.Whether the defendant his heirs, agents, assigns and/or successors hold the title acres to the suit property in trust for the plaintiff.c.Whether the title held by Kimeto Arap Murei/the defendant in respect of the suit property got extinguished on the expiry of 12 years after the plaintiff took possession thereof.d.Whether the Plaintiff has established a prima facie case to warrant the issuance of an order of a permanent injunction against the Defendant/Respondent, his agents, representatives, employees and/or assigns from interfering, alienating, evicting and/or threatening the peaceful occupation and/or do anything whatsoever on the suit property. 5.The basis of the originating summons is the plaintiff’s 21-paragraphed affidavit of even date and the accompanying documents including a copy of official search, a bundle of photographs and a notice of intention to remove caution over the suit property alongside three grounds set out on the face of the summons. Briefly, the plaintiff asserted that he has openly, continuously, peacefully and uninterruptedly occupied the suit property since 1964 when he bought it from the defendant at a consideration of Kshs. 1,550/=. That in July 2023, the defendant re-emerged and sought possession of it hence, provoking this suit. 6.The Plaintiff (PW1) and called five witnesses in support of his case. He relied on his statement dated 15th September 2025 as part of his evidence in chief and stated that he has been in possession of the suit property since 1964 when the Defendant sold the same to him. That there was no written agreement thereof and that all the parties who witnessed the sale have passed on. Further, PW1 testified that he lives in land parcel number Nandi/Ndalat/270 which is registered in his name. Under cross-examination, PW1 admitted that he has built on the said land parcel and not on the suit property. 7.PW2, David Kibungei Kebenei, a neighbour to PW1, relied on his statement dated 5th September 2025 as part of his evidence and stated that he was present when PW1 entered the suit property in 1964 after he bought it from the defendant. That the defendant moved out of the suit property and never returned thereunto. On cross examination, PW2 stated that PW1 started to enter the suit land in 1964 and planted maize since 1972. In re-examination, he stated that sugar cane, maize and trees of PW1 are grown on the suit property. 8.PW3, Charles Kipkoech Kosgei aged 51 years and 4th born child of PW1 relied upon his statement dated 8th September 2025 as part of his testimony. He stated, inter alia, that PW1 owns it since 1964 to-date. That PW1 carries out dairy farming and has planted trees thereon. That the defendant sold the suit property, moved to Burnt Forest in Uasin Gishu County and has never claimed it. During cross examination, PW3 told the court that PW1 has cultivated it since 1972 but not living thereon. 9.PW4, Veronicah Kirongo Jelagat aged 68 years told the court that she is a cousin to PW1 while the defendant is a brother to her father, Kiptoo Murei who sold the suit property to PW1. She relied on her statement dated 15th December 2025 as part of her evidence. Under cross examination, she could not recall the purchase price thereof. In re-examination, she clarified that the Father of PW1 bought it in 1964 when she (DW4) was aged 9 years. 10.PW5, Lawrence Kipserem Busienei aged 80 years relied on his statement dated 15th December 2025 as part of his evidence in chief. He told the court that the defendant sold the suit property to PW1 when he (DW5) was aged 21 years, That the defendant moved out of the suit property to Tarakwa, Burnt Forest area in Uasin Gishu County. That the plaintiff cultivates it since 1964 to-date. 11.PW6, Thomas Kipruto Tororey aged 80 years anchored part of his evidence on his statement dated 15th December 2025. He stated that the defendant moved out of the suit property and left it to PW1 in 1964 never to return to the same. That PW1 and DW1 belong to one family but the former cultivates it. 12.Learned counsel for the plaintiff filed submissions dated 4th April 2026 making reference to the orders sought on the face of the originating summons, delineated issues for determination including whether PW1 has acquired the suit property by adverse possession and the evidence of witnesses. Counsel submitted that PW1 has satisfied all the requisite ingredients of his claim as held in Sisto Wambugu vs Kamau Njuguna (1983) KLR 172 and Mtana Lewa vs Kahindi Ngala Mwagandi (2015) eKLR. That thus, that the plaintiff has acquired title to the suit property by adverse possession to enable him be registered as the absolute proprietor of the same in place of the defendant and costs of the suit to PW1. 13.Also, counsel submitted that plaintiff attempted to rely on an agreement but DW1 knowingly allowed PW1 to uninterruptedly possess the suit property for 59 years. That therefore, acquiescence and affirmation of ownership of the suit property by PW1 are inferred herein. Further, counsel cited the case of Isack N’Inanga Kiebia vs Isaaya Theuri M’Lintari & another (2018) eKLR that trust is a question of fact to be proved by evidence and the circumstances and Willy Kimutai Kitilit vs Michael Kibet (2015) eKLR on constructive trust, to fortify the plaintiff’s submissions. C. The Defendant’s Case 14.The defendant through Z.K Yego Law Offices entered appearance vide the memorandum of appearance dated 13th September 2023. He opposed the originating summons by his 33-paragraphed replying affidavit sworn on 15th January 2024 and averred in part, that he is the lawful registered proprietor of the suit property as per title deed (KAM 1) annexed to the affidavit. That the plaintiff owns LR Nandi/Ndalat/270. That he temporarily allowed the plaintiff as a relative, to possess the suit property. 15.Further, the defendant averred that the plaintiff illegally encroached into the suit property and cut down trees belonging to the defendant thereon. That after the plaintiff lodged a caution claiming purchaser’s interest, he (The defendant) presented his intention to remove caution over the suit property (KAM 3). That this suit is an abuse of the process of the court and an affront to the ends of justice thus, sought dismissal of the Originating summons with costs. 16.The defendant (DW1) a retired teacher aged 91 years anchored part of testimony on his statement dated 21st July 2025 and stated that he did not sell the suit property. That PW1 is a son to his brother as well as his neighbour. He relied on his list of documents dated 21st July 2025 S/Nos. 1 to 7 (PExhbits 1 to 7 respectively) and a further list of documents dated 9th October 2025 (PExhibit 8) in his testimony 17.Under cross examination, DW1 stated that he left the suit property to his brother, the plaintiff’s father Arap Kerich (Deceased) in 1964 and moved to Tarakwa , Burnt Forest in Uasin Gishu County. That he did not claim the same after the death of the plaintiff’s father in 1990’s. That PW1 lived in the house that DW1 had left for his (PW1) father since 1964 and cut down trees on the suit property. 18.DW2, Phillister Jepkoech Chepkwony, a cousin to PW1 testified by reliance on her statement dated 21st July 2025 as part of her evidence. She testified that the suit property belongs to DW1. During cross examination, DW2 stated that PW1 cultivates the suit property and cut down trees of the late father of DW2 thereon. 19.The defendant’s counsel filed submissions dated 26th May 2026 referring to the orders sought in the parties’ respective pleadings, evidence and framed twinned issues namely whether the claim of PW1 has met the threshold for adverse possession and who shall bear the costs of the suit. In analyzing the issues, counsel submitted that PW1 was permitted by DW1 to use the suit property and has not been in occupation of the suit property as admitted by PW1 and demonstrated by the evidence of DW1 and DW2. That PW1 has not been in open, non-permissive, continuous and uninterrupted possession of the suit property and therefore not entitled to it by adverse possession. 20.To buttress the submissions, counsel cited Sections 7 and 38 of the Limitation of Actions Act Chapter 22 Laws of Kenya and relied on the case of Karitu vs Mwihike Farmers Company Limited 7 3 others {2025} KECA 1127 (KLR), Gabriel Mbui vs Mukindia Maranya (1995) eKLR, Mtana Lewa (supra) and Maweu vs Liu Ranching & Farming Cooperative Society (1985) eKLR, among others, on adverse possession. That thus, this suit be dismissed with costs. D. Issues for Determination 21.It is established law that issues for determination in a suit generally, flow from either the pleadings or as framed by the parties for the court’s determination; see Galaxy Paints Co. Ltd-vs-Falcon Guards Ltd (2000) 2 E A 385. 22.Having considered the entire parties’ respective cases, the rival submissions including the issues for determination identified together with case law cited therein, has the plaintiff satisfied the essential ingredients of adverse possession as established in the Court of Appeal decision in the case of Wilson Kazungu Katana-vs-Salim Abdalla Bakshwein and another (2015) eKLR that adverse possession dictates that;a.The suit land must be registered in the name of a person other than the applicant,b.The applicant must be in open and exclusive possession of that piece of land in an adverse manner to the title of the owner,c.The applicant must be in that occupation for a period in excess of twelve years having dispossessed the owner or there having been discontinuance of possession by the owner. 23.Furthermore, it is trite law that adverse possession cannot arise where the applicant’s entry into the suit property was by permission from a person; see Richard Songoi vs Ben Songoi {2020} KECA 942 (KLR). E. Discussion and Disposal 24.Regarding the first dictate, paragraph 5 of his affidavit in support of the originating summons reads;‘That the suit land is registered in favour of Kimeto Arap Murei. Annexed and marke ‘PKC 1’ is a copy of official search of the suit land.’ 25.Notably, Part B-Proprietorship section of the official search (PKC 1) reveals that the proprietor of the suit property is the defendant. 26.The defendant averred at paragraph 4 of his affidavit that he is the absolute and indefeasible registered owner of the suit property. 27.In case of Wainaina-v-Murai and 2 others (1976-80) 1 KLR 283 at 289/290 which I find quite instructive as pertains registration of land in adverse possession, Simpson J (as he then was) observed;“......The land in question is registered under the Registered Land Act.....” 28.As such, the suit property is registered in the name of the defendant as disclosed in his exhibits including title deed issued on 18th March 2015 and the certificate of official search forming part of the plaintiff’s exhibits. So, the first ingredient is resolved thereby. 29.On the second dictate, PW1 stated that he has been in possession and occupation of the suit land peacefully and uninterruptedly since 1964. That he has developed it and no attempt has been made to evict him therefrom. 30.It is well settled that possession can take different forms such as fencing and cultivation of the land in dispute; see Kimani Ruchine and another-vs-Swift Rutherford Company Ltd and another (1976-80) 1 KLR 1500. 31.During examination in chief, PW1 stated that;‘………..I have been in possession of the suit land since then to-date. I started living in houses made of grass roof belonging to the defendant who sold one acre to me at Ksh. 150/=. …….. He has never claimed the land to the time of filing this suit. There was no witness herein. I fenced the suit land using barbed wire and planted trees thereon. I cultivate the land…………’ 32.The testimonies of PW2 to PW6, DW1 and DW2 affirm the evidence of PW1 that he developed the suit property and has lived thereon together with his family since 1964. This is a pointer to the plaintiff’s open and exclusive possession of the same in an adverse manner to the title of the defendants. 33.Besides, it is worth to note the third dictate that PW1 must prove that has dispossessed the registered owner of the suit property and that his entry into the same was not consensual; see Songoi (supra) and Kihambo & Michuki (infra). 34.In the case of Peter Mbiri Michuki versus Mugo Michuki (2014) eKLR, the Court of Appeal held;“………… the Plaintiff entered the suit property pursuant to a sale agreement in 1964 as a bona fide purchaser for value. The entry in 1964 was with permission of the appellant qua vendor. In the case of Public Trustee –versus- Wanduru, (1984) KLR 314 at 319 Madan, J.A. stated that adverse possession should be calculated from the date of payment of the purchase price to the full span of twelve years if the purchaser takes possession of the property because from this date, the true owner is dispossessed off possession. A purchaser in possession of the land purchased, after having paid the purchase price, is a person in whose favour the period of limitation can run.…….’ (Emphasis added) 35.Similarly, in Samuel Kihambo versus Mary Mbaisi [2015] KECA 853 (KLR), the Court of Appeal held that for one to succeed in a claim for adverse possession, one must prove and demonstrate that;‘……. he has occupied the land openly, that is, without force, without secrecy, and without license or permission of the land owner, with the intention to have the land. There must be an apparent dispossession of the land from the land owner. These elements are contained in the Latin phraseology, nec vi, nec precario. The additional requirement is that of animus possidendi, or intention to have the land.’ (Emphasis added) 36.A title by adverse possession can be acquired under the limitation of Actions Act to a portion of the piece of land which the owner holds. The piece of land is in evidence and as stated at paragraph 2 hereinabove. 37.It is not in dispute that PW1 cultivates the suit property. However, he has to prove that he has ousted the defendant from it followed by adverse possession, occupation and development as noted in Gatimu Kinguru-vs-Muya Gatangi (1976-80) 1 KLR 317. 38.The Halsbury’s Laws of England 3rd Edition Volume 24 paragraphs 481 and 484 at pages 251 and 152 stated that there can be no dispossession if enjoyment and use are possible. PW1 stated that he is use of the suit property. 39.Sections 25 (1) (b) and 28 of the Land Registration Act, 2016 (2012) as well as section 7 of the Land Act, 2016(2012) anchor overriding interests over registered land. Adverse possession is inclusive thereunder. 40.In the case of Richard Songoi (supra), the Court of Appeal observed at paragraph 48 thus;'…..In the instant matter, the appellant’s entry into the suit property was by permission. Whether the permission was lawful or authorized is immaterial. Having entered the suit property on permission, the the appellant cannot be allowed to turn around and state that the entry was by way of adverse possession…..’ 41.Under cross examination, PW3 stated;'…….The defendant knew all along that PW1 was in use of the suit land. The defendant permitted PW1 to use it…’ 42.Moreover, PW1 was succinct that he had no written agreement, no witnesses and no evidence of payment of purchase price in respect of the suit property. Therefore, even the threshold for trust as noted in Kiebia, Kitilit and Michuki cases (supra), has not been met herein. 43.It is trite law that the burden was always on the plaintiff to prove his or her case on the balance of probabilities. That such burden is not lessened even if the case was heard by way of formal proof as held in Kirugi and another-vs-Kabiya and 3 others (1987) KLR 347. 44.In the foregone, the plaintiff’s entry into the suit property was consensual as noted in Songoi case (supra) and others. Also, there is no iota of proof that DW1 is holding it in trust for him. Therefore, his claim has not been proved against the defendant on a balance of probabilities as noted in, inter alia, Wambugu, Wilson Katana, Kiebia cases (supra). 45.Wherefore, the plaintiff’s suit by way of an originating summons dated 16th August 2023 is hereby dismissed. 46.Costs follow the event within the discretion of the court pursuant to the proviso to Section 27 of the Civil Procedure Act Chapter 21 Laws of Kenya. 47.By the character of the suit and as PW1 and DW1 belong to the same family, each party to bear their own costs herein. 48.It is so ordered. DATED AND DELIVERED AT KAPSABET THIS 9TH DAY OF JUNE 2026.HON. GEORGE M.A ONGONDOJUDGEIn the presence of;1. Mr. Songok learned counsel for the plaintiff2. M/s Chelimo learned counsel for the defendant3. Walter, Court Assistant