Kabigo & 4 others v Gitau & another (Environment and Land Appeal E094 of 2022) [2025] KEELC 5842 (KLR)
The bottom line
#The Environment and Land Court dismissed an adverse possession claim because the claimants had signed compensation forms describing themselves as lessees, not owners.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Appellants' claim for adverse possession over the suit land is tenable
- 2.Whether the orders sought in the Memorandum of Appeal are merited
Key legal issues
#Whether the Appellants proved adverse possession of Chania/Mataara/654
They did not; the elements of open, exclusive and adverse possession for over twelve years were not proved to the required standard
Although the land was registered in the 1st Respondent's name (first limb of the Katana test), the Appellants produced no evidence of open and exclusive possession adverse to her title, such as photographs or proof of payment for harvested tea. The parties had never met, so dispossession could not arise, and the Valuation Data Collection Forms identified the Appellants as lessees, undermining a claim of ownership by adverse possession.
Whether the trial Magistrate erred in relying on the valuer's report rather than the Chief's evidence
No error; the trial Magistrate identified the correct issues on the burden of proof and gave reasons for her determination
The Court found the trial Magistrate had properly framed the issues touching on the Plaintiffs' onus to prove adverse possession and the Defendant's proof of ownership, determined them, and indicated reasons. The ground attacking reliance on the valuer was therefore untenable. The Court applied Section 107 of the Evidence Act on burden of proof and endorsed the trial Magistrate's finding that neither side proved their case to the requisite standard.
Whether the Appellants' characterization as lessees in the Valuation Data Collection Forms estops an adverse possession claim
Yes; having signed forms identifying their occupation as lessees and received compensation, they cannot claim ownership by adverse possession
The Appellants produced the Valuation Data Collection Forms which identified them as lessees of the suit property, and on that basis the 2nd Respondent paid them compensation of Kshs. 2,000,000/- each in 2021. The Court held that parties who signed forms identifying their occupation as lessees cannot turn around and claim ownership through adverse possession, and that dispossession of the owner could not arise where the parties had never met.
Legal principles established
#- An applicant for adverse possession must be registered owner other than the applicant, be in open and exclusive possession adverse to the owner's title, and have occupied for more than twelve years having dispossessed the owner or following discontinuance of possession by the owner
- A person seeking title by adverse possession must prove non-permissive actual, open, notorious, exclusive and adverse use for the statutory period without interruption
- On first appeal, the court must re-evaluate the evidence afresh while bearing in mind it did not see or hear the witnesses
- The burden of proof in a civil claim lies on the party asserting the facts
Court orders
#- 1.The appeal lodged by way of Memorandum of Appeal dated 31/10/2022 is dismissed
- 2.Costs of the appeal awarded to the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's judgment under the Environment and Land Court Act; appeal by Memorandum of Appeal dated 31/10/2022
Relief refused
#Setting aside of the trial court's judgment and judgment entered in favour of the Appellants on their claim for adverse possession
The Appellants failed to prove open, exclusive and adverse possession of the suit land for the statutory period; the trial Magistrate's judgment was faultless at law
Costs
Appeal dismissed with costs to the 1st Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Wherefore, the instant appeal lodged by way of a Memorandum of Appeal dated 31/10/2022 is hereby dismissed with costs to the 1st Respondent.
it is the finding of this Court that the learned trial Magistrate's Judgment is faultless at law. I proceed to uphold the same.
Further the Valuation Forms that the Appellants produced in Court identified them as lessees and so they cannot now turn and claim ownership through adverse possession.
no suficient evidence was adduced by the Appellants to prove open and exclusive possession of the suit land in an adverse manner to the title of the 1st Respondent
it is my duty to subject the entire evidence on record to a fresh and exhaustive re-evaluation and re-appraisal targeted at reaching my own inferences in the instant dispute.
Issues in the judgment
#The suit land is referred to inconsistently as Chania/Mataara/654 and as Chania/Matara/624 in the issues for determination
The valuer witness is inconsistently identified as PW2 in one passage and as the Defence witness in another
The compensation is stated as paid in 2021 in the submissions but as 2019 in the evidence narrative
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kabigo & 4 others v Gitau & another (Environment and Land Appeal E094 of 2022) [2025] KEELC 5842 (KLR)", Case Analysis (2025). ELC Appeal (Thika), Memorandum of Appeal dated 31/10/2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5842/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.