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ELCPartially AllowedELCOS E017 OF 2023· [2026] KEELC 5098 (KLR)

Gichuki & another v Church Commissioner of Kenya (Enviromental and Land Originating Summons E017 of 2023) [2026] KEELC 5098 (KLR)

Environment and Land Court
29 July 2026
MGM. N. Gicheru
2,746 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Applicants, son and granddaughter of the original owner Gichuki Wanyaga, sued by originating summons seeking registration of the whole of L.R. No. Loc.14/Kairo/708 by adverse possession. They were born on the land (1954 and 1966), lived there all their lives, buried three relatives there, and claimed the land was registered in the name of the senior Wanyaga Gichuki, the first Applicant's step-brother, as trustee for the family of the absent father who went to fight for independence in 1952. The Respondent opposed, relying on decrees in Kangema LDT Case No. 17 of 2005 and Murang'a CMCC No. 454 of 2014 ordering eviction, and contending the adverse possession claim lacked a clear commencement date. At trial, the court framed an additional issue on customary trust under Order 15 rule 2 of the Civil Procedure Rules. It held the adverse possession claim shaky and doubtful because the Applicants failed to prove when adverse occupation began without permission, and possession was interrupted by tribunal cases and eviction orders. However, the customary trust claim succeeded: under Section 28(b) of the Land Registration Act and Section 30(g) of the repealed Registered Land Act, customary trusts are overriding interests, following the Supreme Court's decision in Isack M'Inanga Kiebia. The Respondent, as purchaser, took subject to that encumbrance. The court revoked the Respondent's title, ordered subdivision of the land into two equal halves - the Applicants taking the half with their relatives' graves - directed the Deputy Registrar to execute the necessary instruments, and awarded costs to the Applicants.

Key legal issues

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01

Whether the Applicants acquired title by adverse possession

Holding

The claim failed for lack of clarity on the commencement of adverse possession

Reasoning

The court found that the Applicants occupied the land from birth (1954 and 1966 respectively) until eviction in April 2024. However, possession was not clearly shown to be adverse because the registered owner may have permitted the occupation as caretaker, and the Applicants failed to specify when adverse possession commenced. The pending tribunal cases and eviction orders, plus failure to appeal, made the claim doubtful.

p. 6
02

Whether the Applicants are entitled to half the suit land by customary trust

Holding

Yes - they enjoy an overriding customary trust entitling them to a half share

Reasoning

Evidence that the Applicants were born on the land, have no other family land, buried three relatives there, and that the registered owner was a step-brother registered on behalf of the absent father Gichuki Wanyaga was uncontroverted. Under Section 28(b) of the Land Registration Act and the repealed Registered Land Act, such customary trusts are overriding interests binding on the registered owner and any purchaser from him.

p. 7

Legal principles established

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  • Customary trusts, as well as all other trusts, are overriding interests not required to be noted in the register
  • A purchaser who accepts land occupied by persons benefiting from a customary trust takes subject to that encumbrance

Court orders

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  1. 1.The title to the suit land held by the Respondent is revoked
  2. 2.The suit land to be subdivided into two equal halves, one registered jointly in the Applicants' names and the other in the Respondent's name, with the Applicants taking the half containing their relatives' graves
  3. 3.The Deputy Registrar to execute all instruments necessary to ensure full compliance with the decree
  4. 4.Costs to the Applicants
Jurisdiction invoked
Originating summons under the law of adverse possession; Order 15 rule 2 of the Civil Procedure Rules; Articles of the Land Registration Act on overriding interests

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, "Gichuki & another v Church Commissioner of Kenya (Enviromental and Land Originating Summons E017 of 2023) [2026] KEELC 5098 (KLR)", Case Analysis (2026). ELCOS E017 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5098/eng@2026-07-29

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