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ELCOtherOriginating Summons dated 26th May 2023

Cherubet & another (Suing on Behalf of the Estate of Elizabeth Mboga alias Elizabeth Mboga Ezron - Deceased) v Kebenei (Enviromental and Land Originating Summons E001 of 2023) [2025] KEELC 3890 (KLR)

Environment and Land Court
13 May 2025
GOG M A Ongondo
598 words in judgment
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The bottom line

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A Kenyan land dispute over adverse possession ended through court-annexed mediation, with the Kapsabet Environment and Land Court adopting the settlement as binding judgment.

What this practically means

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Executive summary

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By an Originating Summons dated 26th May 2023, the applicants, supported by a nineteen-paragraph affidavit of the 2nd applicant with a limited grant of letters of administration over the estate of Elizabeth Mboga, sought declarations that they had been in open, continuous and uninterrupted possession of parcels Nandi/Kapatich/699 and Nandi/Kaptich/701 (each 0.8 hectares) for over twelve years; that the respondent's titles had been extinguished by adverse possession; that the titles were held in trust; registration of the applicants as proprietors; transfer instruments to be executed; and costs. The respondent opposed through a thirty-two-paragraph replying affidavit sworn on 9th October 2023. After hearing counsel for both sides on 2nd October 2024, the court referred the matter to Court Annexed Mediation at the parties' request, the parties being related by marriage. Before mediator Petronila Imbayi Wegulo they executed a Mediation Settlement Agreement dated 6th February 2025, providing for subdivision of Nandi/Kamaywa 637 and transfer of Nandi/Kaptich/701 and 699 to William Kogo Bariori and Christine Cherobet, with each party bearing survey costs. Counsel for both parties urged the court to enter judgment in those terms. Holding that the settlement was in the spirit of Article 159(2)(c) of the Constitution and the Civil Procedure (Court Annexed Mediation) Rules 2022, Ongondo J recognized and adopted the agreement and entered judgment in its terms on 13th May 2025 at Kapsabet. The adverse possession claim was thus resolved by consent rather than adjudicated on the merits.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether judgment be entered in terms of Mediation Settlement Agreement herein

Key legal issues

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01

Whether judgment should be entered in terms of the Mediation Settlement Agreement

Holding

Yes. The parties settled the dispute through Court Annexed Mediation and both counsel endorsed the settlement, so the court adopted the agreement as its judgment.

Reasoning

The adverse possession claim was referred to Court Annexed Mediation on the parties' request. Before the mediator the parties executed a Mediation Settlement Agreement dated 6th February 2025, disposing of the suit parcels and a further parcel. Both counsel for the applicants and the respondent affirmed the settlement. The court found the settlement consistent with the constitutional directive on alternative dispute resolution and adopted it, entering judgment in its terms rather than determining the adverse possession claim on the merits.

p. 2

Legal principles established

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  • A settlement reached through Court Annexed Mediation may be recognized and adopted by the court as a judgment for implementation, in line with Article 159(2)(c) of the Constitution and the Civil Procedure (Court Annexed Mediation) Rules 2022.

Court orders

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  1. 1.Judgment entered in terms of the Mediation Settlement Agreement dated February 6, 2025
  2. 2.Nandi/Kamaywa 637 to be subdivided: Romana Kebenei to get 3.0 acres of which she will surrender 1 acre to Mr. Julius Ngetich; Late Malakwen Arap Barno - 3.0 acres; Mark Ngeny - 0.4 acres
  3. 3.Romana Chepkoech Kebenei to transfer parcels Nandi/Kaptich/701 and Nandi/Kaptich/699 to Mr. William Kogo Bariori and Christine Cherobet
  4. 4.Each person to bear the cost of the survey

The bench

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One judgment of the whole court — no separate or dissenting opinions.

GO
majority

Wrote the judgment

Jurisdiction invoked
Article 159(2)(c) of the Constitution of Kenya 2010 and the Civil Procedure (Court Annexed Mediation) Rules 2022

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Wherefore, Judgment be and is hereby entered in terms of the Mediation Settlement Agreement dated February 6, 2025 as set out in paragraph 4 hereinabove.
p. 3Final orders - adoption of mediated settlement
It is so ordered.
p. 3Closing disposition

Issues in the judgment

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minor

The Mediation Settlement Agreement disposes of land parcels (Nandi/Kamaywa 637, Nandi/Kaptich/701, Nandi/Kaptich/699) in favour of third parties (Romana Kebenei, Julius Ngetich, Mark Ngeny, William Kogo Bariori, Christine Cherobet) who are not named parties to the originating summons.

minor

The judgment does not identify the respondent by name, and the applicants' counsel is recorded as both 'Tum' and 'Mr Kiprono' appearing for the respondent, creating uncertainty as to identity of parties/advocates.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Cherubet & another (Suing on Behalf of the Estate of Elizabeth Mboga alias Elizabeth Mboga Ezron - Deceased) v Kebenei (Enviromental and Land Originating Summons E001 of 2023) [2025] KEELC 3890 (KLR)", Case Analysis (2025). Originating Summons dated 26th May 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3890/eng@2025-05-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.