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ELCDismissedCM ELC 189 OF 2018 (Appeal from trial court, Nanyuki)· [2026] KEELC 4358 (KLR)

Gitonga v Ndichu (Environment and Land Appeal E004 of 2023) [2026] KEELC 4358 (KLR)

Environment and Land Court
9 July 2026
4,133 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A man who admitted living on land with the owner's permission lost his claim to own it through adverse possession.

What this practically means

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Executive summary

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This is a first appeal from the Magistrates' Court at Nanyuki (CM ELC 189 OF 2018) decided by Lucy N. Mbugua, J of the Environment and Land Court at Nanyuki. The respondent, administratrix of the estate of Francis Ndichu Thaiya, had sued the appellant for trespass, eviction and damages over parcel Euasonyiro/Suguroi Block VIII/461, which her late husband bought in 2013 from Peter Miaraho. The appellant counterclaimed, asserting he bought 3 acres in 1995 and had acquired them by adverse possession. The trial court, in a judgment delivered on 18.7.2023, dismissed the counterclaim, ordered eviction, issued a permanent injunction, awarded general damages of Kshs 500,000 for trespass and costs to the plaintiff. On appeal, the court applied the Selle principles of retrial and identified a single issue: whether the trial court erred in dismissing the counterclaim while allowing the respondent's claim. The court found the appellant's case fatally flawed: his pleadings alleged purchase from Miaraho while his affidavit alleged purchase through Nyeri Properties Agencies; his receipts related to parcels 462 and 537, not 461; he admitted occupation with the owner's consent, which is inconsistent with adverse possession; and even computing time from the 2005 chief's letter, the 12-year period had not matured by 2016. The court acknowledged the trial court did not analyse adverse possession in depth but held its dismissal of the counterclaim was correct. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the appellant acquired the suit land by adverse possession

Holding

No. His pleadings and evidence were contradictory (purchase from Miaraho vs Nyeri Properties Agencies), his receipts referred to other parcels (462 and 537), and he admitted occupation was with the consent of the lawful owner, all of which were fatal to the claim.

Reasoning

The court found inconsistency between the pleaded purchase from Miaraho and the affidavit claim of purchase through Nyeri Properties Agencies, with receipts for parcels 462 and 537 rather than 461. Even computing time from the 2005 chief's letter, the 12-year period had not matured by 2016. The appellant's admission that occupation was with the owner's consent defeated adverse possession, since possession must be nec vi, nec clam, nec precario.

p. 7
02

Whether the trial court erred in dismissing the counterclaim

Holding

No. Although the trial court did not analyse adverse possession in depth, it correctly noted the appellant was claiming ownership through purchase and adverse possession simultaneously, and its dismissal of the counterclaim was correct.

Reasoning

The first appellate court applied the Selle v Associated Motor Boat Company principles, reconsidering and evaluating the evidence itself. It acknowledged the trial court's analysis of adverse possession was shallow but found the dismissal was nonetheless correct because the appellant's claim was self-contradictory and unsupported by evidence.

p. 8
03

Whether the incomplete trial record (missing ruling of 3.7.2018) vitiated the appeal

Holding

No. Although the ruling on the preliminary objection striking out the original counterclaim was not in the record, the court declined to strike out the appeal since the ruling could be traced in the original trial record.

Reasoning

The court noted the Ready Consultancy authority on striking out appeals for incomplete records but declined to follow that route because the missing ruling could be found in the original trial court record, and neither party pursued the issue after the ruling.

p. 6

Legal principles established

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  • A party cannot claim land by title and at the same time claim the same land through adverse possession
  • Adverse possession requires possession that is peaceful, open and continuous - nec vi, nec clam, nec precario
  • A party is bound by its own pleadings and cannot raise a different or fresh case without due amendment

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
On appeal from
Magistrates' Court at Nanyuki
CM ELC 189 OF 2018 (originally ELC 120 OF 2016, Nyeri)
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court decision (Environment and Land Court)

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, "Gitonga v Ndichu (Environment and Land Appeal E004 of 2023) [2026] KEELC 4358 (KLR)", Case Analysis (2026). CM ELC 189 OF 2018 (Appeal from trial court, Nanyuki). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4358/eng@2026-07-09

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