Ole Samperu v Masarie (Land Case Appeal E038 of 2024) [2026] KEELC 1061 (KLR)
The bottom line
#The Environment and Land Court dismissed a Kilgoris land appeal, cancelling improperly issued titles and ordering the family land shared equally among three brothers.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial magistrate properly evaluated the evidence on the objection proceedings and the Minister's appeal
The trial court was right: Objection No. 1/1990 over Transmara/Moita/47 was allowed and directed equal sharing among the three brothers, and the Minister's Appeal No. 261/1998 was dismissed affirming equal sharing; these decisions were never implemented, so the plaintiff's case was founded on a false premise
The demarcation book shows Transmara/Moita/626 and 627 existed as distinct parcels; the original Transmara/Moita/47 was never subdivided as pleaded. The Objection Proceedings decision of 13.05.1993 required equal subdivision among the three brothers but the whole parcel was registered to Samperu Ole Masarie alone. The Minister's Appeal decided on 23.05.2002 was dismissed, affirming equal sharing. Neither decision was implemented, so the plaintiff's claim of ownership through subdivision failed.
Whether the trespass claim was proved
Trespass was not proved - no survey report or photographs - and in any event the plaintiff held a title unprocedurally issued which could not confer ownership rights
The trial magistrate found no trespass because no survey report or photographs were adduced. This court added that the plaintiff's title itself was unprocedurally issued because the registration of Transmara/Moita/47 ignored the Land Adjudication Officer's decision on the objection, and the subsequent subdivisions were unlawful. A party without a valid title cannot sustain a trespass claim.
Whether titles issued in breach of the Land Adjudication Act attract indefeasibility under section 26 of the Land Registration Act
No - titles procured unprocedurally are nullities ab initio with no protection of the law, contrary to section 26(1)(b) of the Land Registration Act
Section 26 of the Land Adjudication Act required the outcome of the Objection Proceedings to be taken into account before registration; it was not. Registration of Transmara/Moita/47 in Samperu Ole Masarie's name was therefore unprocedural, as were the subdivisions into 629, 630 and 631. Such titles, contravening section 26(1)(b) of the Land Registration Act, are nullities ab initio following Kipkobel Arap Misoi and Macfoy.
Legal principles established
#- A first appellate court must reconsider and evaluate the evidence and draw its own conclusions
- Registration that ignores a decision in objection proceedings under the Land Adjudication Act is unprocedural and confers no proprietary interest; titles procured through a flawed adjudication process are nullities without need of a court order to set them aside
Court orders
#- 1.All the subdivisions of Transmara/Moita/629, Transmara/Moita/630 and Transmara/Moita/631 emanating out of Transmara/Moita/47 are cancelled
- 2.The Land Surveyor to amalgamate Transmara/Moita/47, Transmara/Moita/626 and Transmara/Moita/627 into one parcel and subdivide it into 3 portions to the families of Samperu Ole Masarie, Ntokoyuan Ole Masarie and Iripian Ole Masarie to give effect to the Objection Proceedings decision and the Minister's Appeal decision
- 3.In subdividing, regard to be given to areas currently occupied by each family and the RIM to be amended to reflect the subdivisions
- 4.The Land Registrar Transmara West, East and South to rectify the register to reflect the resultant titles after the subdivisions
- 5.For avoidance of doubt, Transmara/Moita/47 refers to the original parcel as adjudicated, measuring 146 Ha, and Transmara/Moita/626 and Transmara/Moita/627 refer to the original parcels at time of adjudication
- 6.The Appeal is dismissed
- 7.The Appellant (Estate of Samperu Ole Masarie) to bear the costs of the Appeal and the costs of the suit in the lower court
- On appeal from
- Principal Magistrate's Court, Kilgoris
- CM.ELC Case No. E021 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the magistrates' court (Environment and Land Court); appeal decided on written submissions after admission
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ole Samperu v Masarie (Land Case Appeal E038 of 2024) [2026] KEELC 1061 (KLR)", Case Analysis (2026). Land Case Appeal E038 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1061/eng@2026-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.