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Court of AppealDismissedMachakos ELC No. 89 of 2008 (appeal therefrom)· [2025] KECA 1722 (KLR)

Jane Wanjiru Gitonga & 1 other v Machakos Ranching Company Limited

Court of Appeal
24 October 2025
WKW. KaranjaLAL. AchodeJNJoel Ngugi
3,388 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed two long-time occupants' claim to land in Athi River because they could not prove 12 years of open, hostile possession against the registered owner.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Angote J delivered on 31st March 2017 in Machakos ELC No. 89 of 2008, dismissing an Originating Summons by which Jane Wanjiru Gitonga and Wambua Mwithi Kilovoo sought to be registered as proprietors of Plot No. 337/648, Athi River Township, by adverse possession, and sought a permanent injunction against Machakos Ranching Company Limited. The appellants claimed occupation since the 1960s; the respondent, registered proprietor since the late 1970s, asserted it had been in possession and relied on prior eviction orders in Machakos CMCC No. 175 of 2005, though the res judicata plea was abandoned below and was not pronounced on. Hearing the appeal under Rule 31(1)(a) of the Court of Appeal Rules, 2022, the Court (Karanja, Achode and Ngugi JJA) identified the sole issue as whether the appellants satisfied the requirements for adverse possession. Re-appraising the evidence afresh, the Court found no corroboration of entry in the 1960s, noted the appellants could not state the date of entry or the acreage claimed, observed that the 1981 allocation letter by the first appellant's late husband was inconsistent with a hostile claim, and noted the photographs showed semi-permanent rather than permanent structures. Holding the appellants had not proved open, continuous and exclusive possession for twelve years to the exclusion of the registered owner, the Court found no basis to disturb the judgment below and dismissed the appeal with costs to the respondent.

Key legal issues

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01

Whether the appellants proved a claim for adverse possession over Plot No. 337/648

Holding

The appeal fails; the appellants did not satisfy the elements of adverse possession and the judgment of the ELC is upheld.

Reasoning

The court reappraised the evidence afresh on first appeal. Apart from the appellants' own testimonies, there was no evidence supporting entry in the 1960s. The 1981 letter showed the appellants' late husband applied for allocation of the land, inconsistent with a hostile claim, and no nexus was shown between Plot No. 3 and the suit property. The appellants could not state the date of entry or the acreage claimed, and photographs showed semi-permanent rather than permanent structures.

p. 7
02

Scope of the Court of Appeal's mandate on a first appeal

Holding

On first appeal the Court re-appraises the evidence and draws its own inferences, while making allowance for not having seen or heard the witnesses.

Reasoning

Rule 31(1)(a) of the Court of Appeal Rules, 2022 empowers the Court to re-appraise evidence from a superior court exercising original jurisdiction, and Gitobu Imanyara confirms the appeal is by way of retrial.

p. 5

Legal principles established

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  • A claimant seeking adverse possession must prove actual, open and notorious possession, to the exclusion of the true owner, continuous and uninterrupted for 12 years, without the owner's consent and with hostile intent; where possession is consensual or contractual in inception, adverse possession cannot arise.
  • The claimant must demonstrate the date of entry, the nature of the possession, that the owner knew of it, its duration, and that it was open and undisturbed for 12 years.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
On appeal from
Environment and Land Court, Machakos
Machakos ELC No. 89 of 2008
Jurisdiction invoked
First appeal under Rule 31(1)(a) of the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (14)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jane Wanjiru Gitonga & 1 other v Machakos Ranching Company Limited", Case Analysis (2025). Machakos ELC No. 89 of 2008 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1722/eng@2025-10-24

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