Mulama & 2 others v Choge & 7 others (Environment and Land Case 52 of 2011 & 57 of 2022 (Consolidated)) [2026] KEELC 905 (KLR)
The bottom line
#The Environment and Land Court in Kitale dismissed squatters' and a co-operative society's land claims, confirming the Choge estate's titles and ruling groups cannot claim adverse possession.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.If the suit and the issues raised by the SHG and the Society are res judicata
- 2.If the SHG and the Society's officials or representatives have the capacity to represent the respective parties before the court
- 3.Whether the SHG and the Society's witnesses have established that they are entitled to the suit properties on account of adverse possession, constructive trust, sale, purchase, and registration
- 4.If the SHG and the Society are entitled to the reliefs sought in their respective suits
- 5.If the estate of the deceased has established a breach of their ownership rights, irregularities in the issuance of titles, and the intentions of the Society or its members to interfere with the titles register to the suit properties, and to illegally stake claim, and or invade the suit properties, to be entitled to the reliefs sought in the 3rd suit
- 6.What is the order in terms of costs
Key legal issues
#Res judicata
The plea fails; prior suits were not determined on the merits to finality, affirming Obaga J's ruling of 19/10/2015
The Court of Appeal had dismissed the earlier adverse possession claim largely on procedural grounds (wrong mode of commencement, representative suit requirements, no certified extract of title), not on the merits. No new material was tendered at trial to sustain the plea. The key ingredients - identity of parties, subject matter, finality by a competent court on the merits - were not established.
Capacity of the SHG and the Society to sue
The SHG's first two witnesses could only represent the 34 members for whom leave was granted; the Society's pleadings were not instituted by duly authorized officials
Leave was limited to 34 claimants; no authority or amendment covered the additional 316 members. The Society's verifying affidavit was sworn by Daniel Omolo without evidence of election at an AGM or written committee resolution authorizing him to sue; certified registers, annual returns and minutes were not tendered. Under the Co-operative Societies Act and the societies cases, societies act only through duly elected officials with written authority.
Adverse possession by the SHG
Claim fails; possession was permissive, disputed and interrupted, and neither the land nor the acts of adversity were specifically pleaded and proved
Entry was with permission of the settler as farm workers. Occupation was contested from 1984, litigation, caveats and evictions punctuated the period, and claimants vacated in 2016. No specific portions, dates of commencement of adversity, or individual acts of exclusive possession were proved; photographs were not tied to any claimant or parcel.
Constructive trust / purchase claim by the Society
Not proved; no evidence of contributions, loan repayment or valid competing title
Contributions of Kshs. 508,000 or 3,500,000 to the AFC were not substantiated by receipts or disbursement records. The Society did not call the makers of its government documents, which the Land Registrar denied, and no conversion under the Land Registration Act was proved. The estate's titles were traced legally, and findings of forgery in Criminal Case No. 1516 of 2011 remain unimpeached.
Estate's claim for cancellation of the Society's titles, nullification of parcellation and injunction
Granted; the estate proved valid root of title and the Society's documents were forgeries or products of an unlawful process
The estate traced acquisition from ADC/Lands Limited with offer letters and transfer, and titles held by Equity Bank. Surrender and conversion under Sections 44 of the Registration of Titles Act and 63 of the Registered Land Act never occurred and required the registered proprietor. The Society's claimed instruments were not authenticated and some were declared forgeries in the criminal case.
Legal principles established
#- Group or communal adverse possession is not recognized in law; adverse possession must be personal, exclusive and specifically identified
- Where two titles compete over one parcel, the court must trace the root of title, for no parcel of land can have two title deeds
- Permissive entry by workers cannot ripen into adverse possession, and a claimant who impugns the registered owner's title cannot simultaneously claim adversely
- Societies can only sue or be sued through their bona fide elected officials with written authority
Court orders
#- 1.The suits by the SHG and the Society are dismissed with costs
- 2.Cancellation and/or revocation of title to Cherangani/Nzoia Block 12 and Moi's Bridge/Moi's Bridge Block 12
- 3.Nullification of the parcellation of L.R. No. 2187 and L.R. No. 8915
- 4.Declaration that the titles in the name of Simon Kiptum Arap Choge are the only genuine and lawful titles to the suit properties
- 5.Permanent injunction against the defendants not to in any way interfere with Title Nos. L.R. No. 2187 and L.R. No. 8915
- 6.Costs in the consolidated suit to the plaintiffs in the 3rd Suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the consolidated land suits
- Consolidated with
- Originating Summons Misc. No. 89 of 2009, Kitale ELC No. 57 of 2020 (formerly Eldoret ELC No. 306 of 2016)
Relief refused
#SHG claim for declaration of adverse possession of 5 acres each and cancellation of the defendants' registration
Adverse possession not proved: entry was permissive, occupation not exclusive or continuous for 12 years, land and claimants not specifically identified, and claimants contradicted themselves by also claiming gift/purchase
Society's claim for eviction and mesne profits
Society failed to prove superior or valid title; its claimed documents were unauthenticated and its officials lacked authority to sue; the estate's paper trail was verified
Society's constructive trust claim against the estate
No evidence of contributions by SHG or Society towards the purchase of the suit properties
Costs
Suits by SHG and Society dismissed with costs; costs in the consolidated suit to the plaintiffs in the 3rd Suit
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.
The suits by the SHG and the Society are hereby dismissed with costs.
The prayers in the 3rd Suit are granted in terms of
Declaration that the titles in the name of Simon Kiptum Arap Choge are the only genuine and lawful titles to the suit properties.
There cannot be, in law, group adverse possession or group adverse occupation of the land.
When two titles are alleged to be in existence over the same land, the court has to follow the root of title and establish which one is valid or not, for no one parcel of land can have two title deeds.
My finding, applying the foregoing cases, is that the Society pleadings in both suits were not verified and presented in court by authorized oficials or witnesses who had written authority or capacity to sue or to represent the Society in the two suits.
Costs in the consolidated suit to the plaintifis in the 3rd Suit.
Issues in the judgment
#Internal inconsistency in cited case years: Mtana Lewa cited as [2015] eKLR in submissions but [2005] eKLR in the analysis; Mbira -vs- Gachuhi cited as (2002) 1 EALR 137 in submissions but [2003] 1EALR 137 in the analysis
Inconsistent dates for the deceased's death: submissions state he passed on in 2013, while the plaint avers he died on 13/12/2015
Inconsistent year of the Court of Appeal appeal number in submissions (HCCC No. 133 of 1999 versus No. 133 of 1989)
PW4's loan repayment figure internally inconsistent within the same testimony (Kshs. 3,500,000 versus Kshs.13,500,000)
Contradiction in PW4's evidence on PW1's membership: PW1 testified he ceased being a member of the Society in 1988, but PW4 insisted he never formally resigned
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulama & 2 others v Choge & 7 others (Environment and Land Case 52 of 2011 & 57 of 2022 (Consolidated)) [2026] KEELC 905 (KLR)", Case Analysis (2026). Kitale ELC No. 52 of 2011 (formerly Kakamega Civil Suit No. 95 of 1994), consolidated with Orig. Summons Misc. No. 89 of 2009 and Kitale ELC No. 57 of 2020 (formerly Eldoret ELC No. 306 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/905/eng@2026-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.