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ELCPartially Allowed· [2025] KEELC 413 (KLR)

Githui v Joreth Limited & another (Environment & Land Case 213 of 2012) [2025] KEELC 413 (KLR)

Environment and Land Court
6 February 2025
10,235 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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A Nairobi court gave a man land he occupied for 25 years, cancelling a later buyer's title entirely.

What this practically means

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Executive summary

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The Plaintiff bought Plot No. 226 (LR 13330/506), a subdivision carved from land belonging to Joreth Limited (the 1st Defendant), from Stanley Gichuki Maitho in 1987, took possession, fenced it and stationed a caretaker who lived there from 1987 to 2012. Joreth Limited had resolved in 1974 to sell the mother parcels to Thome Farmers No. 5 Limited but never transferred them, and the resulting title disputes generated multiple suits. In 2005 the Plaintiff, responding to a newspaper notice inviting plot owners to ride on a consent order in HCCC No. 6206 of 1992, paid Kshs. 40,000 of the required Kshs. 200,000 but the balance was refused. Joreth later sold the plot to Nyali Beach Cycads Limited (the 2nd Defendant), which obtained distress-for-rent orders in 2012 and evicted the caretaker, destroying the house and carting away goods. The court found that the Plaintiff had been in open, continuous, notorious possession for twenty-five years; that the filing of HCCC No. 6206 of 1992 did not interrupt his possession because he was not a party and was unaware of it; and that his adverse possession extinguished Joreth's title by 1999 (at the latest 2004). Consequently the 1st Defendant had no title to pass to the 2nd Defendant, who also failed to establish bona fide purchaser status having known of the Plaintiff's occupation. However, the claim for specific performance failed for want of a written agreement under section 3(3) of the Law of Contract Act and non-compliance with the consent order, and the Kshs. 600,000 special damages claim failed for want of strict proof. The counterclaim was dismissed. The court declared the Plaintiff entitled by adverse possession, nullified the sale, ordered cancellation of the 2nd Defendant's registration, rectification of the register in the Plaintiff's favour, eviction of the 2nd Defendant, and awarded the Plaintiff costs jointly and severally against both Defendants.

Key legal issues

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01

Whether the Plaintiff was entitled to specific performance of the offer made in the Daily Nation notice of 23rd July 2005

Holding

Specific performance was refused. The alleged agreement was implied, not in writing, and therefore unenforceable under section 3(3) of the Law of Contract Act, and the Plaintiff failed to comply with the consent order terms requiring payment of the full Kshs. 200,000 within six months.

Reasoning

The court held that specific performance is discretionary and based on the existence of a valid, enforceable contract. The Plaintiff paid only Kshs. 40,000 out of Kshs. 200,000 and produced no written agreement signed by the parties. The implied agreement therefore could not found the relief, especially as title had already issued to the 2nd Defendant.

p. 13
02

Whether the Plaintiff established adverse possession over LR 13330/506

Holding

Yes. The Plaintiff entered possession in 1987 through his caretaker, fenced and cultivated the land openly, and remained undisturbed for twenty-five years until 2012, well beyond the statutory twelve years.

Reasoning

Relying on sections 7, 13, 17 and 38 of the Limitation of Actions Act and the elements laid down in Mtana Lewa, Wines & Spirits, Richard Wefwafwa Songoi and Gabriel Mbui, the court found the possession was open, notorious, continuous, non-permissive and known to the 1st Defendant, evidenced by the caretaker's residence, fencing, cultivation and demand letters from the 1st Defendant's advocates.

p. 16
03

Whether the filing of HCCC No. 6206 of 1992 interrupted the running of adverse possession

Holding

No. The Plaintiff was not a party to that suit, was unaware of it, and it did not assert rights against him personally, so it did not interrupt his possession.

Reasoning

DW1 admitted the Plaintiff was not a defendant in HCCC No. 6206 of 1992. The court adopted the Court of Appeal's reasoning in Patrick Magu Mwangi Kimunyu v Joreth Limited that a suit unknown to and not joined against the possessor is not an assertion of rights against him and cannot stop time. The 1st Defendant also knew the Plaintiff had been on the property since 1987 yet took no step against him.

p. 16
04

Whether the 2nd Defendant acquired good title from the 1st Defendant and was a bona fide purchaser for value

Holding

No. The 1st Defendant's title had already been extinguished by the Plaintiff's adverse possession before the 9th December 2011 transfer, so there was no title to pass, and the 2nd Defendant knew of the Plaintiff's occupation.

Reasoning

The statutory period expired in 1999 at the latest 2004, long before the December 2011 transfer. The 2nd Defendant admitted awareness of the Plaintiff's occupation when purchasing, and later evicted him under a false claim of distress for rent, disqualifying it from bona fide purchaser protection.

p. 17
05

Whether the Plaintiff was entitled to Kshs. 600,000 as special damages for the destroyed house and distrained goods

Holding

No. Special damages must be specifically pleaded and strictly proved; the Plaintiff led no evidence of the distrained goods, their value or the value of the destroyed house.

Reasoning

Applying Hahn v Singh as quoted in Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates, the court found the degree of certainty and particularity of proof had not been met, and the Kshs. 600,000 claim had no basis.

p. 17
06

Whether the Defendants' counterclaim for eviction and permanent injunction had merit

Holding

No. Having found the Plaintiff entitled to the suit property by adverse possession, the counterclaim seeking his eviction and injunction failed.

Reasoning

The counterclaim was premised on the Plaintiff being a trespasser, but the court had found his possession was adverse and had extinguished the 1st Defendant's title. The counterclaim therefore could not stand and was dismissed with costs.

p. 18
07

Whether the 2nd Defendant's distress for rent proceedings were lawful

Holding

No. The Plaintiff was never a tenant; the distress proceedings in Miscellaneous Application 849 of 2012 were founded on falsehoods and constituted an abuse of court process.

Reasoning

Section 3 of the Distress for Rent Act applies only where rent is in arrears under a grant, lease, demise or contract. No rental agreement existed between the Plaintiff and either Defendant. The auctioneer dispositions claiming Kshs. 300,000 rental arrears were false and were used to evict the Plaintiff through the backdoor.

p. 17

Legal principles established

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  • A person who enters possession of another's land and remains for twelve consecutive years, openly, adversely and without interruption, becomes entitled to the land and extinguishes the registered proprietor's title.
  • The institution of a suit against third parties does not interrupt adverse possession of a claimant who was neither a party to nor aware of the suit.
  • Once a plaintiff's title has been extinguished by adverse possession, the former registered proprietor has no title to pass to a subsequent purchaser.
  • A claimant under section 3(3) of the Law of Contract Act must have a written agreement for the disposition of an interest in land; an implied agreement is unenforceable.

Court orders

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  1. 1.A declaration that the Plaintiff, Christopher Wachira Githui, has acquired title by adverse possession of LR 13330/506
  2. 2.A declaration that the sale between the 1st and 2nd Defendants in respect of Plot No. LR 13330/506 was null and void
  3. 3.An order that the Chief Land Registrar cancel the registration of the 2nd Defendant as proprietor of LR No. 13330/506 and rectify the register by entering the name of the Plaintiff as registered proprietor, and thereafter issue the Plaintiff with a title in his name
  4. 4.An eviction order against the 2nd Defendant from the suit property
  5. 5.An order for removal of any structures the 2nd Defendant has put up on the suit property
  6. 6.Dismissal of the Defendants' counterclaim with costs
  7. 7.Costs of the suit to be borne by the 1st and 2nd Defendants jointly and severally
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim for adverse possession, title cancellation and eviction (Sections 7, 13, 17 and 38 of the Limitation of Actions Act)

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, "Githui v Joreth Limited & another (Environment & Land Case 213 of 2012) [2025] KEELC 413 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/413/eng@2025-02-06

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