Tarus & 51 others v Attorney General & 4 others; Kebenei & 15 others (Interested Parties) (Constitutional Petition 8 of 2020) [2025] KEELC 819 (KLR)
The bottom line
#The court dismissed 52 squatters' bid for land ownership, ruling that adverse possession is a civil claim that cannot be dressed up as a constitutional petition.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition raises constitutional issues
It does not; the sole issue is adverse possession, a private law claim requiring statutory interpretation, evidence of occupation and quantification of acreage, properly pursued through a civil suit under the Limitation of Actions Act and Order 37 of the Civil Procedure Rules.
The court applied the Anarita Karimi Njeru threshold and found the Petitioners had not stated with precision the constitutional provisions violated. Relying on Trans Nzoia Chingano and Parkire Stephen Munkasio, it held that adverse possession claims must follow laid-down private law channels. The Petitioners' earlier originating summons was withdrawn, and the present petition was a civil claim clothed as a constitutional petition.
Whether the Petitioners' rights under Articles 40 and 43 were violated
No violation was established. The allocation of the 377 acres was unlawful since the land was private property with no evidence of government purchase, and Article 40(6) denies protection to unlawfully acquired property; socio-economic rights cannot confer rights in alieno solo.
The court found no evidence the government paid for the 377 acres, and that the instructions to subdivide and give the land to the landless were illegal, with the beneficiaries appearing to be senior government officials rather than the landless. Following the Supreme Court's Mitu-Bell decision, it held socio-economic rights cannot override private property or the Limitation of Actions Act.
Whether the reliefs sought should be granted
No. Adverse possession cannot be claimed against the government, there is no claim against the owners, and the Estate of Nyongio Kimitei owns the suit property and cannot be restrained from dealing with it.
The court found the provisional certificate issued pursuant to Gazette Notice No. 4024 of 30th April 2021 was incomplete and the shareholding unclear, but concluded ownership vested in the Estate of Nyongio Kimitei. The alleged 1985 government process was illegal ab initio and could not be completed or regularized, so all the reliefs sought failed.
Legal principles established
#- A claim for adverse possession is a private law claim that cannot be brought through a Constitutional Petition.
- A constitutional petition must state with precision the constitutional provisions violated, the manner of violation, the evidence and the loss suffered.
- Property rights under Article 40 do not extend to property unlawfully acquired, and socio-economic rights cannot confer proprietary rights in the land of another.
- Private land cannot be allocated by the State; purported allocation of private land is unlawful and confers no legitimate interest.
Court orders
#- 1.The Petitioners' Petition is dismissed.
- 2.Costs of the Petition are awarded to the 1st, 3rd and 5th Respondents.
- Jurisdiction invoked
- Articles 19(1), 19(2), 21(1), 23, 28, 29, 40 and 43 of the Constitution of Kenya, 2010 (as pleaded by the Petitioners)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tarus & 51 others v Attorney General & 4 others; Kebenei & 15 others (Interested Parties) (Constitutional Petition 8 of 2020) [2025] KEELC 819 (KLR)", Case Analysis (2025). Amended Petition dated 14th November, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/819/eng@2025-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.