Bitacha alias Ali Butacha Tora v Sori & 68 others (Environment and Land Case E004 of 2024) [2026] KEELC 342 (KLR)
The bottom line
#The Environment and Land Court in Isiolo ordered four occupants to vacate land they claimed to have bought, because their written sale agreement was legally defective.
What this practically means
#Executive summary
#Key legal issues
#Plaintiff's ownership of the suit property
The Plaintiff is the lawful and registered owner of LR No. Marsabit/Jirme/520, his title being unimpeached.
The Plaintiff produced the adjudication record, certificate of title and Green Card showing registration in his name. This evidence of ownership was not controverted by the Defendants, who in fact conceded ownership through DW1 and DW4. The name variance between the identity card and title was explained as a spelling mistake. On this uncontroverted and credible evidence, the court found ownership proved.
Whether the Defendants purchased the suit property
The Defendants failed to prove the alleged sale; the sale agreement did not satisfy Section 3(3) of the Law of Contract Act and no consideration was shown to have reached the Plaintiff.
The sale agreement omitted the purchase price, payment scheme and the Plaintiff's ID number. No evidence showed payment of consideration to the Plaintiff; monies allegedly went to Kuni Ene, who was never called as a witness and whose authority to act for the Plaintiff was not evidenced by any power of attorney, statutory declaration or memorandum. The Defendants' casual approach fell below the diligence required of a conscientious purchaser.
Whether the Defendants' occupation constitutes trespass
The Defendants' occupation without the Plaintiff's authority constitutes trespass, and the entire duration of occupation constitutes continuous trespass.
It was common ground that the Defendants occupied portions of the suit property contrary to the registered owner's wishes. Having failed to establish the alleged sale, they had no colour of right. Their occupation violates the Plaintiff's exclusive possessory rights under sections 24 and 25 of the Land Registration Act, 2012. The mistaken belief that the property was purchased for them does not excuse the trespass.
Reliefs
The Plaintiff, having proved his case on a balance of probability, was granted a declaration of unlawful occupation, eviction within 180 days, a permanent injunction, and costs.
As registered owner, the Plaintiff is entitled to exclusive possession; interference with his possessory rights must be averted. The court adopted the reasoning in Waas Enterprises Limited that a registered proprietor is entitled to enjoy proprietary rights to the exclusion of all others, and ordered the Defendants to vacate with an eviction order in default, plus permanent injunction and costs.
Legal principles established
#- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is a party.
- The burden of proving an alleged sale of land rests on the party asserting it.
- A sale agreement for land that omits essential terms such as purchase price and payment mechanism fails the statutory threshold for written contracts.
- Occupation of land without the authority of the registered owner constitutes trespass, and continued occupation is a continuing trespass giving rise to fresh causes of action daily.
Court orders
#- 1.A declaration that the Defendants' occupation of and settlement on LR. No. Marsabit/Jirme/520 are illegal, unlawful and constitute trespass
- 2.The Defendants to vacate the suit property and hand over vacant possession to the Plaintiff within 180 days [six months] from the date of the judgment
- 3.In default of vacating, the Plaintiff at liberty to levy eviction against the Defendants, and an eviction order shall issue
- 4.In the event of eviction, the expenses/costs of eviction to be certified by the Deputy Registrar and borne by the Defendants
- 5.An order of permanent injunction restraining the Defendants, their agents, servants or anyone claiming under them from returning to, remaining on, trespassing onto or otherwise dealing with the suit property adversely to the Plaintiff's rights
- 6.Costs of the suit awarded to the Plaintiff, to be agreed and in default taxed by the taxing officer
- Jurisdiction invoked
- Original civil suit under the land registration and trespass regime; Land Registration Act, 2012; Civil Procedure Act, Chapter 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bitacha alias Ali Butacha Tora v Sori & 68 others (Environment and Land Case E004 of 2024) [2026] KEELC 342 (KLR)", Case Analysis (2026). Not stated in the judgment (plaint dated 27/11/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/342/eng@2026-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.