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ELCAllowedELD CM ELC Case No. E117 of 2022 (Appeal dated 31st October, 2024)· [2025] KEELC 6646 (KLR)

Eliazar & another v Sambu (Environment and Land Appeal E049 of 2024) [2025] KEELC 6646 (KLR)

Environment and Land Court
2 October 2025
CYC. K. Yano
4,292 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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Kenya's Environment and Land Court ruled that buying land from someone who isn't the registered owner, without the owner's signed consent, gets you nothing—no matter how much you've built on it.

What this practically means

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Executive summary

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The Appellants sued the Respondent in the Chief Magistrate's Court claiming ownership of land parcels including Moi's Bridge/Sirikwa Block 2 (Ziwa)/345, and sought eviction and a perpetual injunction for trespass. The trial court (Hon. Peter Areri, SPM) dismissed the suit on 24th October 2024, finding the Respondent had entered with permission after purchasing 5 acres from Mary Tabutany, the 1st Appellant's mother-in-law, to offset an AFC loan. On appeal, the Environment and Land Court at Eldoret (Hon. C. K. Yano, ELC Judge) re-evaluated the evidence as a first appellate court. It held that under Section 3(3) of the Law of Contract Act the sale agreement was invalid: none of the registered owners signed or authorised the sale, and the alleged AFC loan was unproved, the Respondent failing to obtain loan documents even after a court order. The Appellants' title deed, issued in 1995, was prima facie and indefeasible under Section 26(1) of the Land Registration Act, and allegations of fraud were unevidenced. Applying nemo dat quod non habet, the court found Mary Tabutany could not pass title she did not have, and the Respondent's failure to conduct due diligence barred reliance on any exception. His development of the land did not defeat the registered owners' rights. The appeal succeeded; the trial judgment was set aside and replaced with an order that the Respondent vacate within 90 days, with police enforcement, a perpetual injunction, and costs to the Appellants in both the appeal and the lower court.

Key legal issues

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01

Validity of the sale agreement between Mary Tabutany and the Respondent

Holding

The agreement was not legal or legitimate because the registered owners were not parties and gave no authority; it could not bind them.

Reasoning

Section 3(3) of the Law of Contract Act requires written, signed contracts for land dispositions. None of the Appellants signed the agreement and there was no evidence Mary Tabutany was authorised to sell. The claimed AFC loan purpose was not proved, the Respondent having failed to obtain the loan documents even after a court order. Privity principles meant the agreement could not bind the registered owners.

p. 6
02

Whether the Respondent acquired valid title

Holding

The Respondent acquired no valid title since Mary Tabutany had no title to pass.

Reasoning

The Appellants held a title deed issued 25th September 1995, before the 2006 agreement, protected by Section 26(1) of the Land Registration Act. Allegations of fraud or secret registration were unevidenced. The Respondent admitted he never saw the title, did not know the registered owner, and did no due diligence, so he could not invoke any exception to nemo dat quod non habet.

p. 6
03

Entitlement to eviction and perpetual injunction

Holding

The Appellants, as registered proprietors, are entitled to possession, eviction of the Respondent, and a perpetual injunction.

Reasoning

Since the Respondent has no title, he has no right to remain on the land; his development of the land does not defeat the Appellants' registered rights. His failure to conduct due diligence was his own fault. A perpetual injunction is granted on the merits upon full determination of rights, as in Kenya Power & Lighting Co. Ltd vs Sherifi Molana Habib.

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Costs

Holding

Costs follow the event; the successful Appellants get costs of the appeal and the lower court.

Reasoning

Under Section 27(1) of the Civil Procedure Act costs are discretionary but follow the event unless the court gives reasons to depart. There being no reason to order otherwise, the Appellants as successful party receive costs of both the appeal and the lower court.

p. 8

Legal principles established

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  • A certificate of title is prima facie/conclusive evidence of proprietorship and can only be challenged on fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition under Section 26(1) of the Land Registration Act
  • No suit shall be brought upon a contract for the disposition of an interest in land unless the contract is in writing, signed by all parties, and the signatures attested (Section 3(3) Law of Contract Act)
  • The nemo dat quod non habet principle: one cannot pass a better title than one has
  • First appellate court must re-evaluate the evidence and draw its own conclusions while allowing for lack of opportunity to see witnesses

Court orders

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  1. 1.An order directing the Respondent to vacate the suit property within 90 days, failure to which the Appellants shall be at liberty to evict him from the suit property
  2. 2.An order directing the O.C.S. Ziwa Sirikwa Police Station to ensure compliance of order (a) above
  3. 3.A perpetual injunction restraining the Respondent by himself, his servants and or agents from ever trespassing or interfering with the Appellants' interests over the suit property
  4. 4.The Appellants shall have the costs of the Appeal and the lower court

Authorities

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Legislation

  • Land Registration Act, No. 3 of 2012Sections 24, 25(1), 26, 26(1), 38(1) of the Land Act cross-reference
  • Law of Contract Act, Cap 23Sections 3(3), 3(6)
  • Evidence ActSections 107, 109
  • Civil Procedure Act, Cap 21Section 27(1)

Cases cited (9)

  • Elizabeth Ndulu Mathwa vs Joseph Mbiu Muthiani
    Makueni ELC Case No. 152 of 2017
  • Levi Simiyu Makali vs Koyi John Waluke & 2 Others
    (2018) eKLR, Bungoma Election Petition No. 4 of 2017
  • Republic vs Chief Land Registrar & 2 Others
    (2020) eKLR
  • Kassam vs Kassam & 3 Others
    (2019) eKLR
  • Abigael Baram vs Mwangi Theuri
    ELC No. 393 of 2013
  • Peter M. Kariuki vs. Attorney General
    (2014) eKLR
  • Onsongo vs Njagi & 2 others
    (Civil Appeal E008 of 2022) (2024) KEHC 3648 (KLR)
  • Daniel Kiprugut Maiywa vs Rebecca Chepkurgat Maina
    (2019) eKLR
  • Kenya Power & Lighting Co. Limited vs Sherifi Molana Habib
    (2018) eKLR
On appeal from
Chief Magistrate's Court, Eldoret
ELD CM ELC Case No. E117 of 2022
Jurisdiction invoked
First appellate jurisdiction over the trial court's judgment in an ELC suit

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, "Eliazar & another v Sambu (Environment and Land Appeal E049 of 2024) [2025] KEELC 6646 (KLR)", Case Analysis (2025). ELD CM ELC Case No. E117 of 2022 (Appeal dated 31st October, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6646/eng@2025-10-02

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