Gaitho & 203 others v Utheri wa Lari Company Limited & another (Land Case 77 of 2016) [2023] KEELC 98 (KLR)
The bottom line
#A Nakuru court ruled that occupying land by force can never earn legal ownership, upholding titleholders' rights to evict and to recover costs.
What this practically means
#Executive summary
#Key legal issues
#Registered ownership of the suit land
The plaintiffs are the registered owners of the subdivisions of LR No. 11192; the 2nd defendant itself recognises the titles by seeking their cancellation
The court noted that the 2nd defendant's counterclaim sought revocation of the Longonot/Kijabe Block 2 titles, thereby acknowledging their registration in the plaintiffs' names. Documentary evidence of purchase from Kedong Ranch Ltd, surrender of the head title in 1994 and issuance of titles to members was uncontroverted.
Adverse possession claim by the 2nd defendant
Claim failed: no specific portions identified, possession not established, and possession obtained by force
The 2nd defendant did not plead or prove the specific portions claimed, offered no evidence of development or definite possession, and nomadic lifestyle negated animus possidendi. Further, the 1991-1997 hostilities and violent expulsion of the plaintiffs meant possession was acquired by force, which vitiates an adverse possession claim and renders quiet uninterrupted possession impossible.
Consistency of adverse possession claim with challenge to title
The two claims are inconsistent and cannot coexist in one pleading
The 2nd defendant denied the plaintiffs' titles as forgeries while simultaneously claiming the same titles by adverse possession, which presupposes a valid title. The court adopted the reasoning in Joseph Kazungu Mwangi that such claims are inconsistent.
Whether titles should be revoked on grounds of historical injustice or native rights
No - the titles are indefeasible and historical injustice claims cannot override them
The land became private land upon initial Crown alienation; the old tenure was extinguished. Section 15(2) of the National Land Commission Act post-dates the RTA and must be read as subservient to indefeasibility under the RTA and LRA; upholding ancestral claims would violate equal protection (Article 27) and property rights (Article 40). Fraud, illegality and forgery allegations were unsupported by evidence.
Whether injunction and eviction should issue
Permanent injunction and eviction issued against the 2nd defendant; plaintiffs not injuncted
Since the plaintiffs' titles were upheld, they cannot be injuncted from their own property; the 2nd defendant established no right to the land and may be restrained and evicted.
Legal principles established
#- Possession of land acquired by force cannot found a claim for adverse possession; use of force vitiates the claim.
- A claim for adverse possession cannot lie side by side with a claim for nullification of the same title in the same suit.
- A claimant for adverse possession must plead and prove the definite portion or acreage dispossessed.
- Titles held for value long after initial Crown alienation remain indefeasible and cannot be nullified on claims of historical or ancestral dispossession.
- An adverse possession claim may properly be raised by way of counterclaim rather than originating summons.
Court orders
#- 1.The 2nd Defendant, its agents, servants and/or any other persons claiming under it shall at their own expense remove themselves and any building, structures and constructing materials that they may have deposited on the suit properties Longonot/Kijabe Block-2 (Utheri wa Lari) 1 to 7956 within thirty (30) days of the order
- 2.In default of compliance, the 2nd Defendant and persons claiming under it shall be evicted under security provided by the Nakuru County Police Commandant and the Assistant County Commissioner Naivasha at their expense and the plaintiffs put into possession
- 3.A permanent injunction issued restraining the 2nd Defendant, its servants, agents and/or any unauthorized person from interfering in any manner whatsoever with the suit properties registered in the names of the Plaintiffs
- 4.General damages for trespass not awarded as not proved
- 5.The 2nd defendant jointly and severally through its named representatives to bear the costs of the suit and the counterclaim
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (suit and counterclaim concerning title and occupation of land)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kalii & 2 others (Suing as Chairman, Secretary and Treasurer of Mamukii Society) on Behalf of 2500 Society Members Squatters And Evicteees From Makala Farm LR No 1748) v National Land Commission & 4 others (Environment and Land Constitutional Petition E004 of 2021) [2025] KEELC 6683 (KLR)[2025] KEELC 6683 (KLR)26 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Gaitho & 203 others v Utheri wa Lari Company Limited & another (Land Case 77 of 2016) [2023] KEELC 98 (KLR)", Case Analysis (2023). Not stated in the extract (ELC suit, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/98/eng@2023-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.