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ELCPartially AllowedNot stated in the judgment as provided

Korwa v Pusikwang & 4 others (Environment and Land Case 61 of 2018) [2025] KEELC 7916 (KLR)

Environment and Land Court
12 November 2025
10,054 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~40 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court fixed wrong land boundaries caused by a registration mistake, but rejected the ownership claim based on long occupation.

What this practically means

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Executive summary

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The plaintiff, as legal representative of the estate of Kaboyi Merkor (the initial plaintiff), sued the 1st defendant, his first cousin, and state defendants over land parcels West Pokot/Chepareria/558 and 490, arising from the Chepareria adjudication of 1974. The plaintiff pleaded that both brothers occupied distinct portions of parcel 558 separated by a boundary erected in 1974, but that in 2018 an official search revealed parcel 490 recorded as only 12 acres on Sheet Map 41 across the river, while the 1st defendant's title 558 covered the entire ground occupation. He sought cancellation of title 558, re-subdivision, amendment of RIM Sheets 40 and 41, and a fresh title, pleading fraud/mistake and adverse possession. The 1st defendant maintained he was regularly registered in 1998, that the plaintiff was a mere licensee whose permission was withdrawn, that no objection was lodged during adjudication, and that fraud and adverse possession cannot co-exist. The court framed six issues. Relying on the unchallenged County Surveyor's report (DW3), which confirmed the RIM does not tally with ground occupation, and discounting the unlicensed private surveyor (DW2), the court found a proved mistake in registration and mapping warranting rectification under Sections 79 and 80 of the Land Registration Act. However, the adverse possession claim failed: it is mutually exclusive with fraud, time had not run since discovery in 2018, animus possidendi was absent, permissive entry between close relatives raised a rebuttable presumption of consent, and the claim was improperly brought by plaint rather than originating summons under Order 37. Prayers B1, C and D were granted; each party to bear its own costs.

Questions the Court framed

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

  1. 1.If the plaintiff has proved continuous, open, and uninterrupted occupation of land Title No. West Pokot/Chepareria/558 to be entitled to adverse possession.
  2. 2.If there was a mistake, error, or fraud on the part of the 2nd and 3rd defendants in mapping and registering on the adjudication or survey records, regarding the location of parcel No. West Pokot/Chepareria/558 and 490.
  3. 3.If the 1st defendant was party to the mistake, error, or fraud in the alleged shifting, mapping, and or registration of parcels No. West Pokot/Chepareria/558 and 490.
  4. 4.Whether the plaintiff was aware of and or had objected to the aforementioned mistake, error, or fraud during the adjudication process and or registration of title.
  5. 5.If the plaintiff is entitled to the reliefs sought.
  6. 6.What is the order as to costs?

Key legal issues

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01

Whether a mistake or error was proved in the mapping and registration of parcels 490 and 558

Holding

Yes. The government surveyor's unchallenged evidence established that the RIM does not conform to the ground position; both parties occupy parcel 558, and the register requires rectification under Sections 79 and 80 of the Land Registration Act.

Reasoning

DW3, the County Surveyor, visited the locus and found the plaintiff occupying about 62.8 acres of parcel 558 on the lower side, while the record placed parcel 490 across the river where parcel 435 lies. His findings were not challenged under Section 79 of the Land Registration Act, and the 2nd–5th defendants admitted the errors. Section 80 empowers rectification where registration was made through mistake. The court found the mismatch between records and ground locality proved and ordered alignment.

02

Whether the plaintiff proved adverse possession

Holding

No. The claim fails for want of animus possidendi, non-elapsement of 12 years, presumed permissive entry between close relatives, and improper procedure.

Reasoning

Adverse possession requires open, actual, hostile, continuous and uninterrupted possession for 12 years with knowledge of the true owner. The plaintiff only learned in 2018 that he occupied parcel 558 and not his parcel 490, so time could not run against a possessor who believed himself owner. Both parties are first cousins, and permissive entry by close relatives raises a rebuttable presumption of consent which the plaintiff did not rebut. Further, the claim was brought by plaint, not originating summons under Order 37, and cannot be pleaded together with fraud.

p. 16
03

Whether the survey report of DW2 (private surveyor) could stand

Holding

It was discounted because he was not a licensed surveyor and his report did not comply with the Survey Act and Survey Regulations.

Reasoning

Expert evidence under Section 48 of the Evidence Act must come from a qualified, independent expert. DW2 admitted his credentials were not attached and that he was not a licensed surveyor; his photographs lacked certificate of electronic production. The court held only a licensed surveyor can undertake such survey works and competently testify, and preferred the County Surveyor's report.

p. 14

Legal principles established

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  • Once title deeds are issued for land after adjudication, the land becomes titled land and post-registration disputes fall outside the Land Adjudication Act and are governed by the Land Registration Act.
  • Under Sections 79 and 80 of the Land Registration Act, the court may order rectification of the register and amendment of the RIM where a registration was obtained or made through mistake.
  • Adverse possession and a claim disputing the validity of the registered title (fraud) are mutually exclusive causes of action that cannot co-exist in the same suit.
  • Permissive entry by a close relative raises a rebuttable presumption of consent, and the burden of proving absence of permission lies on the relative claiming adverse possession.

Court orders

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  1. 1.An order directing the Land Registrar, West Pokot, to cancel the 1st defendant's title deed for West Pokot/Chepareria/558 and issue two separate titles, one capturing the deceased plaintiff's acreage and the other capturing the 1st defendant's acreage.
  2. 2.An order directing the County Surveyor, West Pokot, to amend Sheet Nos. 40 and 41 Chepareria Adjudication Section by removing the ground for Title No. 490 from Sheet Map No. 41 and placing it on Sheet No. 40, particularly on the ground currently occupied by the deceased plaintiff under Sheet No. 40, which was its original position.
  3. 3.An order directing the Land Registrar, West Pokot County, to issue a new title deed No. 490 in the deceased plaintiff's name as per the acreage currently occupied by him on the ground, according to the County Surveyor's findings, and to recall and cancel Title No. West Pokot/Chepareria/558 and issue a new title deed measuring 62 acres as forming part of title No. 558 in the name of the deceased plaintiff.
  4. 4.Each party is to meet its own costs.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes ( Land Registration Act, Land Adjudication Act, Limitation of Actions Act); no specific constitutional provision invoked

Relief refused

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Claim for adverse possession over the 62.8 acres occupied on parcel No. West Pokot/Chepareria/558

The claimant failed to prove animus possidendi and hostile occupation; both parties only discovered the true position in 2018, so 12 years had not run; the parties are close cousins with permissive entry raising a rebuttable presumption of consent; and the claim was improperly brought by plaint rather than originating summons under Order 37 and cannot co-exist with a fraud claim.

Costs

Each party is to meet its own costs.

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.

The upshot is prayers B1, C, and D are granted
p. 16disposition - rectification reliefs granted
Each party is to meet its own costs.
p. 17costs order
The court finds the plaintiff has proved that there was a mistake in the registration and the Mapping of the two parcels of land that requires an alignment.
finding of mistake in registration and mapping
A person cannot claim adverse possession while simultaneously disputing the validity of the registered title; otherwise, the two causes of action are not mutually exclusive and cannot co-exist in the same cause.
p. 15mutual exclusivity of adverse possession and fraud claims
The plaintiff failed to file an originating summons under Order 37 of the Civil Procedure Rules, which is the known procedure of seeking adverse possession.
procedure for adverse possession claims
The law is that, once title deeds are issued for land after adjudication, the suit land automatically becomes titled land.
p. 14effect of issuance of title deeds after adjudication

Issues in the judgment

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minor

Internal inconsistency in the dates of the demand letter, stated variously as 2/7/2018 and 2/8/2018

minor

The judgment refers to the court-ordered survey report of the County Surveyor with conflicting dates (7/6/2019, 1/6/2019 and 20/10/2019)

minor

Acreage of the plaintiff's ground occupation stated inconsistently as 62.2 acres and 62.8 acres in different passages

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, "Korwa v Pusikwang & 4 others (Environment and Land Case 61 of 2018) [2025] KEELC 7916 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7916/eng@2025-11-12

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