Gitonga v Gitonga (Environment and Land Appeal E003 of 2023) [2026] KEELC 4337 (KLR)
The bottom line
#The Environment and Land Court in Nanyuki confirmed that agreeing in writing to leave land interrupts an adverse possession claim in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant's possession of the suit land was continuous and uninterrupted for the statutory 12-year period
The appellant's possession was interrupted when she vacated the land after being summoned before the assistant chief in 2005 and agreeing in writing to vacate; the claim therefore fails.
The court found that the appellant's own supporting affidavit annexed the 2005 letter agreeing to vacate, and her evidence confirmed she moved away 'to have peace'. Interruption breaks the running of time for adverse possession, and her ill health or alleged confusion when signing could not undo that interruption. The respondent fenced and used the land, defeating exclusivity.
Whether the trial magistrate misdirected himself on the appellant's evidence by finding she had conceded vacating the land
No misdirection was established; the extracted portions of the appellant's own testimony corroborated the trial court's finding that she vacated the land.
The appellant blamed the trial court for allegedly distorting her testimony, but the first appellate court extracted her actual evidence, in which she stated she lived next to the land and had moved away from the suit land before the dispute, confirming the concession to vacate. There was thus no basis to disturb the trial court's factual findings.
The duty of a first appellate court on facts
The first appellate court must re-evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses.
Relying on Selle v Associated Motor Boat Company Ltd, the court restated that an appeal by way of retrial obliges it to reconsider and evaluate the evidence itself, and that it is not bound by trial findings where the trial court failed to take account of particular circumstances or probabilities or where demeanor-based findings are inconsistent with the evidence generally.
Legal principles established
#- Adverse possession requires possession that is exclusive; any acknowledgement of, or submission to, the claim of the rightful proprietor interrupts possession and breaks the 12-year period.
- Keeping livestock on land while another person fences and uses it does not amount to exclusive possession for purposes of adverse possession.
- A first appellate court must reconsider and evaluate the evidence and draw its own conclusions, while making allowance for not having seen or heard the witnesses.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- Environment and Land Court (trial court / magistrates' court)
- Not stated (Originating Summons dated 21.7.2016)
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's judgment (appeal by way of retrial per Selle v Associated Motor Boat Co Ltd)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitonga v Gitonga (Environment and Land Appeal E003 of 2023) [2026] KEELC 4337 (KLR)", Case Analysis (2026). Not stated on the face of the judgment (appeal against the judgment in Eusonyiro/Suguroi Block VIII/457 adverse possession suit, Originating Summons dated 21.7.2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4337/eng@2026-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.