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ELCDismissedAmended Petition dated 14th November, 2022

Tarus & 51 others v Attorney General & 4 others; Kebenei & 15 others (Interested Parties) (Constitutional Petition 8 of 2020) [2025] KEELC 819 (KLR)

Environment and Land Court
26 February 2025
5,593 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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The court dismissed 52 squatters' bid for land ownership, ruling that adverse possession is a civil claim that cannot be dressed up as a constitutional petition.

What this practically means

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Executive summary

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Fifty-two Petitioners, occupying portions of LR No. 9723 (now KIPLOMBE/KIPLOMBE/BLOCK II, Sergoit River Farm), sought declarations that they had acquired the land by effluxion of time/adverse possession - 80 acres to the 1st Petitioner and 5 acres each to the others - plus an order compelling the State Respondents to complete a conveyance begun in 1985, declarations extinguishing the 4th Respondent's rights over 477 acres, and restraint against eviction. They asserted violations of Articles 19, 21, 23, 29, 40 and 43, relying on a 1985 Provincial State Counsel letter directing subdivision of 377 acres for the landless. The Respondents and Interested Parties countered that the land was always private property incapable of State allocation, that adverse possession is a private law claim unsustainable in a constitutional petition, and that the Petition failed the Anarita Karimi Njeru threshold. The court framed three issues. Applying Anarita Karimi Njeru and Trans Nzoia Chingano, it held the Petition raised no constitutional issue: the sole question was adverse possession, requiring interpretation of the Limitation of Actions Act and evidence of occupation, and thus purely civil in nature. On violations, it found no evidence of any government purchase of the 377 acres, held the allocation unlawful with beneficiaries who were senior officials rather than the landless, and applied Article 40(6) and the Supreme Court's Mitu-Bell jurisprudence that socio-economic rights cannot confer proprietary rights in another's land. Alleged Article 28 and 29 violations lay outside its jurisdiction. The court concluded the Estate of Nyongio Kimitei owns the property, that adverse possession cannot be claimed against the government, and dismissed the Petition with costs to the 1st, 3rd and 5th Respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Petition raises issues worth to be considered as a Constitutional Petition.
  2. 2.Whether the rights of the Petitioners were violated as alleged.
  3. 3.Whether the court should grant the reliefs sought in the Petition.

Key legal issues

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01

Whether the Petition raises constitutional issues

Holding

It does not; the sole issue is adverse possession, a private law claim requiring statutory interpretation, evidence of occupation and quantification of acreage, properly pursued through a civil suit under the Limitation of Actions Act and Order 37 of the Civil Procedure Rules.

Reasoning

The court applied the Anarita Karimi Njeru threshold and found the Petitioners had not stated with precision the constitutional provisions violated. Relying on Trans Nzoia Chingano and Parkire Stephen Munkasio, it held that adverse possession claims must follow laid-down private law channels. The Petitioners' earlier originating summons was withdrawn, and the present petition was a civil claim clothed as a constitutional petition.

p. 12
02

Whether the Petitioners' rights under Articles 40 and 43 were violated

Holding

No violation was established. The allocation of the 377 acres was unlawful since the land was private property with no evidence of government purchase, and Article 40(6) denies protection to unlawfully acquired property; socio-economic rights cannot confer rights in alieno solo.

Reasoning

The court found no evidence the government paid for the 377 acres, and that the instructions to subdivide and give the land to the landless were illegal, with the beneficiaries appearing to be senior government officials rather than the landless. Following the Supreme Court's Mitu-Bell decision, it held socio-economic rights cannot override private property or the Limitation of Actions Act.

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Whether the reliefs sought should be granted

Holding

No. Adverse possession cannot be claimed against the government, there is no claim against the owners, and the Estate of Nyongio Kimitei owns the suit property and cannot be restrained from dealing with it.

Reasoning

The court found the provisional certificate issued pursuant to Gazette Notice No. 4024 of 30th April 2021 was incomplete and the shareholding unclear, but concluded ownership vested in the Estate of Nyongio Kimitei. The alleged 1985 government process was illegal ab initio and could not be completed or regularized, so all the reliefs sought failed.

p. 14

Legal principles established

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  • A claim for adverse possession is a private law claim that cannot be brought through a Constitutional Petition.
  • A constitutional petition must state with precision the constitutional provisions violated, the manner of violation, the evidence and the loss suffered.
  • Property rights under Article 40 do not extend to property unlawfully acquired, and socio-economic rights cannot confer proprietary rights in the land of another.
  • Private land cannot be allocated by the State; purported allocation of private land is unlawful and confers no legitimate interest.

Court orders

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  1. 1.The Petitioners' Petition is dismissed.
  2. 2.Costs of the Petition are awarded to the 1st, 3rd and 5th Respondents.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 19(1), 19(2), 21(1), 23, 28, 29, 40 and 43 of the Constitution of Kenya, 2010 (as pleaded by the Petitioners)

Relief refused

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Declaration of entitlement to 80 acres (1st Petitioner) and 5 acres each (2nd-52nd Petitioners) by effluxion of time / adverse possession

The claim is purely a private-law adverse possession claim which cannot be brought as a constitutional petition, and no adverse possession claim can lie against the government or its agency.

p. 12

Order compelling the 1st-3rd Respondents to complete the 1985 conveyance

The allocation process was illegal as the land was private property, and the government cannot be compelled to complete an illegal process.

p. 14

Declarations of registrable interests and extinguishment of the 4th Respondent's rights by prescription, and restraint against eviction

The suit property belongs to the Estate of Nyongio Kimitei, which cannot be restrained from dealing with it including evicting the Petitioners.

p. 14

Alleged violations of Articles 28 and 29 (arrest and criminal prosecution of the 1st and 31st Petitioners)

This court lacks jurisdiction; such violations are a preserve of the High Court.

p. 13

Costs

The Petition is dismissed with costs to the 1st, 3rd, and 5th Respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

From the above analysis, it is clear that the Petitioners' Petition is devoid of merit. The same is dismissed with costs to the 1st , 3rd , and 5th Respondents.
p. 14Disposition and final orders
This is purely a civil claim clothed as a Constitutional Petition.
p. 12Adverse possession cannot be brought as a constitutional petition
There was no evidence that the government purchased the 377 acres as alleged. The allocation to the Petitioners was unlawful.
Unlawful allocation of private land
Prescriptive rights to land cannot be acquried in the name of enforcement of socio-economic rights.
p. 13Socio-economic rights and private property (Mitu-Bell)
The High Court is the proper court to address any alleged violation of Article 28 and 29.
p. 13Jurisdiction over Articles 28 and 29 violations

Issues in the judgment

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minor

The judgment inconsistently identifies the 5th Respondent: the heading 'The 5th Respondent's case' at paragraph 18 contains content attributed to 'The 4th Respondent contends', suggesting possible conflation of the 4th and 5th Respondents' pleadings.

minor

The name of the estate said to own the suit property is spelled inconsistently ('Nyongio Kimitei' and 'Nyangio Kimitei') within the same paragraph, and paragraph 56 refers to 'Esmail Nurani' while the reliefs and earlier text refer to 'Diamondali/Bahadurali Nurani'.

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, "Tarus & 51 others v Attorney General & 4 others; Kebenei & 15 others (Interested Parties) (Constitutional Petition 8 of 2020) [2025] KEELC 819 (KLR)", Case Analysis (2025). Amended Petition dated 14th November, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/819/eng@2025-02-26

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