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ELCAllowedOriginating Summons dated 2nd April 2024

Lelmengit & another v Kemboi (Enviromental and Land Originating Summons E001 of 2024) [2025] KEELC 4034 (KLR)

Environment and Land Court
20 May 2025
1,114 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that occupying someone's land openly and peacefully for over twelve years can transfer ownership, even unopposed.

What this practically means

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Executive summary

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The plaintiffs, Mark Kimeli Lelmengit and Paul Kebenei, filed an originating summons dated 2nd April 2024 seeking a declaration that the registered proprietor's interest in parcel Nandi/Kaptildil/11 be extinguished by adverse possession, that the defendant's name be removed from the register and the plaintiffs registered as proprietors, that the land vest in them, and costs. The defendant was duly served but did not respond, and the suit proceeded by way of formal proof on 7th April 2025. PW1 testified that he had possessed and occupied the land since 1977, relying on his affidavit, identity card, an Ardhi Sasa convenience fee, a letter and the register of the suit land. PW2 corroborated occupation since 1977 and produced, among other exhibits, the original title deed of the suit land. Counsel for the plaintiffs filed submissions on 14th April 2025 and cited several adverse possession authorities, including Wilson Kazungu Katana, Mweu v Kiu Ranching, Wambugu v Njuguna and Halsbury's Laws of England. The court adopted the three-element test for adverse possession - registration in another's name, open and exclusive adverse possession, and occupation exceeding twelve years without the owner's permission - and found each element satisfied on the unchallenged evidence. It further cautioned itself, per Kirugi v Kabiya, that the burden of proof on a balance of probabilities is not reduced by formal proof. Judgment was entered for the plaintiffs in terms of all orders sought, including costs.

Questions the Court framed

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

  1. 1.Whether the suit land is registered in the name of a person other than the plaintiffs
  2. 2.Whether the plaintiffs were in open and exclusive possession of the suit land in a manner adverse to the defendant's title
  3. 3.Whether such possession continued for a period in excess of twelve years, dispossessing the registered owner
  4. 4.Whether the claim was proved on a balance of probabilities notwithstanding the hearing by formal proof

Key legal issues

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01

Whether the plaintiffs proved adverse possession over the suit land

Holding

The claim was proved to the required standard; the defendant's title stood extinguished by over twelve years of open, continuous and exclusive possession since 1977

Reasoning

The court applied the three elements from Wilson Kazungu Katana: the land was registered in the defendant's name, not the plaintiffs'; the plaintiffs were in open, continuous and peaceful possession since 1977; and that possession was exclusive and inconsistent with the defendant's title, dispossessing him. Being unchallenged after formal proof, the evidence nonetheless had to meet the balance of probabilities, which it did.

p. 3
02

Whether formal proof hearing reduces the plaintiff's burden of proof

Holding

No; the burden remains on the plaintiff even in formal proof

Reasoning

Relying on Kirugi v Kabiya, the court reminded itself that an unopposed suit heard by way of formal proof does not lower the evidential threshold. The plaintiffs still had to establish each element of adverse possession on a balance of probabilities, which the court found satisfied on the uncontroverted testimony of PW1 and PW2 and the exhibits produced.

p. 3

Legal principles established

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  • Elements of adverse possession: land registered in another's name, open and exclusive adverse possession, and occupation in excess of twelve years dispossessing the owner, without the owner's permission
  • The burden of proof remains on the plaintiff on a balance of probabilities even where the suit proceeds by formal proof

Court orders

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  1. 1.Declaration that the proprietor's interest in the whole of parcel Nandi/Kaptildil/11 is extinguished
  2. 2.Removal/deletion of the defendant's name (and any successor or administrator claiming through him) from the Register and registration of the plaintiffs as proprietors of the suit land
  3. 3.The suit land be vested on the plaintiffs
  4. 4.The defendant to pay the plaintiffs' costs of the case

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Adverse possession claim under the Limitation of Actions Act Chapter 22 Laws of Kenya and Order 37 of the Civil Procedure Rules, 2010

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.

Thus, judgment is hereby entered for the plaintiffs against the defendant in terms of the orders sought on the face of the originating summons as stated in paragraph 1 (a) (b) (c) and (d) hereinabove.
p. 3disposition
In the instant suit, it is the finding of this court that the plaintiffs' claim for adverse possession over the suit land is steadfast. It has been proved against the defendant on a balance of probability
p. 3proof of adverse possession
The evidence of PW1 and PW2 show that they are in open, continuous and peaceful possession of the suit land since 1977. Clearly, that is a period in excess of twelve years.
p. 3length and character of possession

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, "Lelmengit & another v Kemboi (Enviromental and Land Originating Summons E001 of 2024) [2025] KEELC 4034 (KLR)", Case Analysis (2025). Originating Summons dated 2nd April 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4034/eng@2025-05-20

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