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ELCPartially AllowedKitale ELC No. 52 of 2011 (formerly Kakamega Civil Suit No. 95 of 1994), consolidated with Orig. Summons Misc. No. 89 of 2009 and Kitale ELC No. 57 of 2020 (formerly Eldoret ELC No. 306 of 2016)· [2026] KEELC 905 (KLR)

Mulama & 2 others v Choge & 7 others (Environment and Land Case 52 of 2011 & 57 of 2022 (Consolidated)) [2026] KEELC 905 (KLR)

Environment and Land Court of Kenya
11 February 2026
22,240 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~89 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kitale dismissed squatters' and a co-operative society's land claims, confirming the Choge estate's titles and ruling groups cannot claim adverse possession.

What this practically means

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Executive summary

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Three consolidated suits concerned L.R. No. 2187 (Trans Nzoia) and L.R. No. 8915/2 (Uasin Gishu). The SHG, a group of 34 (originally) former farm workers of settler George Nicholson, claimed 5 acres each by adverse possession and trust. The Sirikwa Mumbai Multi-Purpose Co-operative Society claimed ownership through alleged purchase, repayment of an AFC loan, and provisional certificates of lease following an alleged surrender and conversion of titles. The estate of the late Simon Kiptum Arap Choge, who acquired the land from ADC/Lands Limited in 1973, sought cancellation of the Society's purported titles, nullification of parcellation, a declaration that its titles were the only genuine ones, and a permanent injunction. The court first held the suits were not res judicata, affirming an earlier ruling that prior litigation ended on procedural grounds, not the merits. It then found both the SHG's and the Society's suits were prosecuted by persons without capacity - the SHG's authority extended only to 34 members and the Society's pleadings were not verified by duly elected, authorized officials. On the merits, adverse possession failed because entry was permissive, occupation was contested and interrupted, no group claim lies in law, and the land and acts of adversity were not specifically identified. Constructive trust and purchase failed for want of proof of contributions and valid competing title; the Land Registrar confirmed no surrender or conversion occurred. The estate's root of title was verified and prior forgery findings against Society officials stood. The suits by the SHG and Society were dismissed with costs, and the 3rd suit's prayers - cancellation of the Society's titles, nullification of parcellation, declaration of the Choge titles as genuine, and a permanent injunction - were granted, with costs to the estate.

Key legal issues

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01

Res judicata

Holding

The plea fails; prior suits were not determined on the merits to finality, affirming Obaga J's ruling of 19/10/2015

Reasoning

The Court of Appeal had dismissed the earlier adverse possession claim largely on procedural grounds (wrong mode of commencement, representative suit requirements, no certified extract of title), not on the merits. No new material was tendered at trial to sustain the plea. The key ingredients - identity of parties, subject matter, finality by a competent court on the merits - were not established.

p. 23
02

Capacity of the SHG and the Society to sue

Holding

The SHG's first two witnesses could only represent the 34 members for whom leave was granted; the Society's pleadings were not instituted by duly authorized officials

Reasoning

Leave was limited to 34 claimants; no authority or amendment covered the additional 316 members. The Society's verifying affidavit was sworn by Daniel Omolo without evidence of election at an AGM or written committee resolution authorizing him to sue; certified registers, annual returns and minutes were not tendered. Under the Co-operative Societies Act and the societies cases, societies act only through duly elected officials with written authority.

p. 26
03

Adverse possession by the SHG

Holding

Claim fails; possession was permissive, disputed and interrupted, and neither the land nor the acts of adversity were specifically pleaded and proved

Reasoning

Entry was with permission of the settler as farm workers. Occupation was contested from 1984, litigation, caveats and evictions punctuated the period, and claimants vacated in 2016. No specific portions, dates of commencement of adversity, or individual acts of exclusive possession were proved; photographs were not tied to any claimant or parcel.

p. 29
04

Constructive trust / purchase claim by the Society

Holding

Not proved; no evidence of contributions, loan repayment or valid competing title

Reasoning

Contributions of Kshs. 508,000 or 3,500,000 to the AFC were not substantiated by receipts or disbursement records. The Society did not call the makers of its government documents, which the Land Registrar denied, and no conversion under the Land Registration Act was proved. The estate's titles were traced legally, and findings of forgery in Criminal Case No. 1516 of 2011 remain unimpeached.

p. 32
05

Estate's claim for cancellation of the Society's titles, nullification of parcellation and injunction

Holding

Granted; the estate proved valid root of title and the Society's documents were forgeries or products of an unlawful process

Reasoning

The estate traced acquisition from ADC/Lands Limited with offer letters and transfer, and titles held by Equity Bank. Surrender and conversion under Sections 44 of the Registration of Titles Act and 63 of the Registered Land Act never occurred and required the registered proprietor. The Society's claimed instruments were not authenticated and some were declared forgeries in the criminal case.

p. 33

Legal principles established

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  • Group or communal adverse possession is not recognized in law; adverse possession must be personal, exclusive and specifically identified
  • Where two titles compete over one parcel, the court must trace the root of title, for no parcel of land can have two title deeds
  • Permissive entry by workers cannot ripen into adverse possession, and a claimant who impugns the registered owner's title cannot simultaneously claim adversely
  • Societies can only sue or be sued through their bona fide elected officials with written authority

Court orders

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  1. 1.The suits by the SHG and the Society are dismissed with costs
  2. 2.Cancellation and/or revocation of title to Cherangani/Nzoia Block 12 and Moi's Bridge/Moi's Bridge Block 12
  3. 3.Nullification of the parcellation of L.R. No. 2187 and L.R. No. 8915
  4. 4.Declaration that the titles in the name of Simon Kiptum Arap Choge are the only genuine and lawful titles to the suit properties
  5. 5.Permanent injunction against the defendants not to in any way interfere with Title Nos. L.R. No. 2187 and L.R. No. 8915
  6. 6.Costs in the consolidated suit to the plaintiffs in the 3rd Suit
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the consolidated land suits

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, "Mulama & 2 others v Choge & 7 others (Environment and Land Case 52 of 2011 & 57 of 2022 (Consolidated)) [2026] KEELC 905 (KLR)", Case Analysis (2026). Kitale ELC No. 52 of 2011 (formerly Kakamega Civil Suit No. 95 of 1994), consolidated with Orig. Summons Misc. No. 89 of 2009 and Kitale ELC No. 57 of 2020 (formerly Eldoret ELC No. 306 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/905/eng@2026-02-11

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