Kuto v Tum (Enviromental and Land Originating Summons E021 of 2023) [2025] KEELC 229 (KLR)
The bottom line
#Kenya's Environment and Land Court handed a farmer ownership of land he had openly occupied and farmed for over 40 years, extinguishing the registered owner's title through adverse possession.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiff has proved the essential ingredients of adverse possession
Key legal issues
#Whether the plaintiff proved the essential ingredients of adverse possession
Yes - the plaintiff entered openly and peacefully in 1978/1980, has continuously cultivated and possessed the land for over 12 years without the defendant's permission, dispossessing the defendant who left the area about 40 years ago
The court applied the Court of Appeal's enunciation of the ingredients of adverse possession in Elijah O.L Opar and Mtana Lewa. PW1 testified he planted tea, reared cattle and grew maize on the land; PW2, the assistant chief for 27 years, corroborated that the plaintiff had lived and farmed there for over 27 years while the defendant left the area about 40 years ago. The land was registered in the defendant's name (PExhibit 2), satisfying the registration requirement. Possession was open, continuous and uninterrupted, hence title was extinguished under Sections 7, 13, 37 and 38 of the Limitation of Actions Act.
Whether the suit could proceed undefended upon service
Yes - the defendant was duly served but failed to respond; the defendant's case was deemed closed and the suit proceeded by way of formal proof
The affidavit of service sworn by authorised process server Moses Osundwa Shikanda on 11th January 2024 established service. The defendant nonetheless failed to enter appearance or file a defence, and the defendant's case was deemed closed on 12th November 2024. The court heard the plaintiff's evidence and submissions on a balance of probabilities even in formal proof, per Kirugi v Kabiya.
Legal principles established
#- The ingredients of adverse possession are open, peaceful entry without the owner's permission and uninterrupted possession for at least 12 years dispossessing the owner and extinguishing title
- In an adverse possession claim the land must first be registered in the name of a person other than the applicant
- The burden of proof in civil cases, even in formal proof proceedings, is on a balance of probabilities
Court orders
#- 1.A declaration that the rights and title of Kipsogon Arap Tum over land parcel No. Nandi/Kipsigak/187 have been extinguished by operation of the law of adverse possession and are statute barred
- 2.A declaration that the plaintiff has acquired freehold interest in the suit land by adverse possession for more than 12 years (from 1980)
- 3.An order directing the Land Registrar Nandi County to remove the entries relating to the defendant's title and register the plaintiff as the new registered owner of the suit land
- 4.An affirmation that the plaintiff took actual and physical possession of the whole suit land, residing and cultivating it since 1980, nec vi, nec clam and nec precario
- 5.Costs of the application provided to the plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 17 and 38 of the Limitation of Actions Act (Cap 22, Laws of Kenya) - originating summons for adverse possession
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that judgment is hereby entered for the plaintifi against the defendant in terms of orders 1, 2, 3 , 4 and 5 stated on the face of the originating summons dated 22nd May 2023 as set out in paragraph 1 (a) (b) (c) (d) and (e) hereinabove.
It is so ordered.
In the present case, I find the plaintifi's claim firm, consistent, cogent and proved against the defendant on a balance of probability.
evidence sufficient to prove on a balance of probabilities that he had entered upon the subject land openly, peacefully, without permission of Opar, and had continued in such possession for an uninterrupted period of at least 12 years thereby dispossessing Opar and extinguishing his right and title thereto. These are the ingredients of adverse possession
Besides, registration of land can be challenged by way of overriding interests including adverse possession under Section 28 (h) of the Land Registration Act 2016 (2012)
Issues in the judgment
#Party names are largely omitted in the body of the judgment; only the defendant's name (Kipsogon Arap Tum) appears, and the plaintiff is referred to throughout simply as 'the plaintiff'
Relief (e) is described as 'Cost of this application be provided by the claimant' although the plaintiff is the claimant seeking costs, an apparent internal misdescription in the pleading
Order (d) of the originating summons is a factual assertion rather than a remedy, yet the court granted judgment 'in terms of orders 1, 2, 3, 4 and 5' including it
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kuto v Tum (Enviromental and Land Originating Summons E021 of 2023) [2025] KEELC 229 (KLR)", Case Analysis (2025). Originating Summons dated 22nd May 2023 (amended 18th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/229/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.