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ELCAllowedOriginating Summons dated 14th July, 2023

Cheruiyot (Suing as the Administrator of the Estate of Kitur arap Milgo) v Kirui & another (Enviromental and Land Originating Summons 8A of 2023) [2025] KEELC 8333 (KLR)

Environment and Land Court
27 November 2025
4,818 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kericho court handed a deceased man's family two acres of land his father had openly farmed for over 12 years.

What this practically means

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Executive summary

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The Plaintiff, sued as administrator of the estate of his late father Kitur Arap Milgo, brought an Originating Summons under Sections 17, 18, 37 and 38 of the Limitation of Actions Act and Order 37 Rules 7 and 8 of the Civil Procedure Rules, seeking a declaration that he is entitled to two acres of land parcel Kericho/Kapsoit/437 (comprising tea bushes and his homestead) by adverse possession, and an order compelling the Defendants, administrators of the estate of the registered proprietor Kipkurui Arap Chepkwony, to excise and transfer the portion. The Defendants denied the claim, contending the Plaintiff encroached after their father's death in 1996, planted tea and built structures, and was intermeddling with a deceased person's estate under Section 45 of the Succession Act; they sought a boundary re-establishment and a permanent injunction. The court identified three issues: whether adverse possession was established, whether the Plaintiff was entitled to the orders sought, and costs. Relying on Kasuve v Mwaani Investments and Daniel Gikundi M'Impwi, the court held that adverse possession does not run against unregistered land, so time was computed only from 1st July 1975 when the registered proprietor was registered; by the father's death in 2000 about twenty-five years had elapsed, far exceeding the twelve-year threshold. The court found the occupation exclusive, open and uninterrupted, and held the intermeddling allegations unsupported by evidence. The Originating Summons was allowed: the estate of Kitur Arap Milgo was declared to have acquired the two acres by adverse possession, the Defendants were directed to execute subdivision and transfer documents within 90 days, the Deputy Registrar to execute in default, and the Plaintiff was awarded 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 Plaintiff has acquired a two-acre portion of land parcel No. Kericho/Kapsoit/437 by way of adverse possession
  2. 2.Whether the Plaintiff is entitled to the orders sought in the Originating Summons
  3. 3.Who should bear costs of the suit

Key legal issues

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01

Whether the Plaintiff (through his deceased father) acquired a two-acre portion of land parcel No. Kericho/Kapsoit/437 by adverse possession

Holding

Yes. Possession from 1975 (when the registered proprietor was registered) to 2000 exceeds the statutory 12-year period and was exclusive, open and without interruption.

Reasoning

The court held that although the father occupied from 1960, adverse possession does not run against unregistered land, so time was computed only from 1975 when Kipkurui Arap Chepkwony was registered as proprietor. Between 1975 and the father's death in 2000, about twenty-five years elapsed, well beyond the 12-year requirement. The Defendants did not dispute the initial occupation, and their allegations of intermeddling from 2001 were unsupported by any evidence and remained mere allegations.

p. 10
02

Whether the Plaintiff is entitled to the orders sought in the Originating Summons

Holding

Yes, having proved adverse possession, the Plaintiff is entitled to the orders sought, including declaration and compelled execution of transfer documents.

Reasoning

The court reasoned that once it found in favour of the Plaintiff on adverse possession, it followed that he was entitled to the reliefs claimed: a declaration of entitlement to the two acres, excision, and execution of transfer documents by the Defendants, with the Deputy Registrar executing in default.

p. 10
03

Whether the Defendants' claim of intermeddling with the estate of a deceased person was established

Holding

No. No evidence was produced to support the allegations of intermeddling.

Reasoning

The Defendants asserted that the Plaintiff destroyed the boundary in 2001, planted tea and built structures, amounting to intermeddling under Section 45 of the Law of Succession Act. The court found these assertions unsupported by any evidence, leaving them as mere allegations, and noted the Plaintiff's point that any intermeddling issues could be raised in the pending succession cause.

p. 10

Legal principles established

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  • A claim of adverse possession cannot accrue against land that is unregistered; time runs only from registration

Court orders

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  1. 1.The estate of the late Kitur Arap Milgo is declared to have acquired a two-acre portion of land parcel No. Kericho/Kapsoit/437 by way of adverse possession
  2. 2.The Defendants are directed to execute, within 90 days of the date of delivery of the judgment, all the necessary documents for purposes of the subdivision, transfer and registration of the two-acre portion of land comprised in the land known as Kericho/Kapsoit/437 in the Plaintiff's name
  3. 3.In default, the Deputy Registrar of the Court shall execute the said documents
  4. 4.The Plaintiff shall have costs of the suit

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 17, 18, 37 and 38 of the Limitation of Actions Act and Order 37 Rule 7 & 8 of the Civil Procedure Rules

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 estate of the late Kitur Arap Milgo is hereby declared to have acquired a two-acre portion of land parcel No. Kericho/Kapsoit/437 by way of adverse possession.
p. 10Final orders - declaration of adverse possession
The Defendants are hereby directed to execute, within 90 days of the date of delivery of this judgment, all the necessary documents for purposes of the subdivision, transfer and registration of the two-acre portion of land comprised in the land known as Kericho/ Kapsoit/437 in the Plaintifi's name.
p. 10Final orders - compelled execution of transfer documents
Therefore, the period between 1960 to 1975 is excluded when computing time. This means that the Plaintifi cannot claim adverse possession between the years 1960 to 1975.
p. 10Adverse possession does not run against unregistered land
It is important to note that no evidence in support of the assertions of intermeddling have been produced and therefore the said assertions remain to be mere allegations.
p. 10Burden of proof on allegations of intermeddling
In order to be entitled to land by Adverse Possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right without interruption for a period of 12 years either after dispossessing the owner or by discontinuation of possession by the owner on his own volition
p. 9Elements of adverse possession (as adopted from Kasuve v Mwaani Investments)

Issues in the judgment

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minor

The Defendants' pleading states the deceased father died in 1996, while the Defendants' submissions give the death date as 9th March 1996 - consistent internally, but the Certificate of Death names 'Musa Kipkurui Arap Chepkwony' while other documents name 'Kipkurui Arap Chepkwony'

minor

The court found the Plaintiff was in occupation from before 2000, while the Defendants alleged interference beginning in 2001; the Plaintiff's supplementary affidavit denies interfering 'in the year 2001' whereas the Replying Affidavit alleges 2000

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, "Cheruiyot (Suing as the Administrator of the Estate of Kitur arap Milgo) v Kirui & another (Enviromental and Land Originating Summons 8A of 2023) [2025] KEELC 8333 (KLR)", Case Analysis (2025). Originating Summons dated 14th July, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8333/eng@2025-11-27

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