Mulama & 2 others v Choge & 7 others (Environment and Land Case 52 of 2011 & 57 of 2022 (Consolidated)) [2026] KEELC 905 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Res judicata
The plea fails; prior suits were not determined on the merits to finality, affirming Obaga J's ruling of 19/10/2015
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.
Capacity of the SHG and the Society to sue
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
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.
Adverse possession by the SHG
Claim fails; possession was permissive, disputed and interrupted, and neither the land nor the acts of adversity were specifically pleaded and proved
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.
Constructive trust / purchase claim by the Society
Not proved; no evidence of contributions, loan repayment or valid competing title
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.
Estate's claim for cancellation of the Society's titles, nullification of parcellation and injunction
Granted; the estate proved valid root of title and the Society's documents were forgeries or products of an unlawful process
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.
Legal principles established
#- 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
#- 1.The suits by the SHG and the Society are dismissed with costs
- 2.Cancellation and/or revocation of title to Cherangani/Nzoia Block 12 and Moi's Bridge/Moi's Bridge Block 12
- 3.Nullification of the parcellation of L.R. No. 2187 and L.R. No. 8915
- 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.Permanent injunction against the defendants not to in any way interfere with Title Nos. L.R. No. 2187 and L.R. No. 8915
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.