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ELCAllowedBungoma ELC Appeal (from Bungoma CM ELC Case No. 70 of 2018)· [2026] KEELC 4403 (KLR)

Nakitare v Barasa (Environment and Land Appeal E034 of 2025) [2026] KEELC 4403 (KLR)

Environment and Land Court
2 July 2026
KBK. Bor
1,150 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Bungoma's Environment and Land Court confirmed that a registered title holder wins a trespass claim unless the other side proves a legally recognised right to the land.

What this practically means

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Executive summary

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The Appellant appealed against the judgment of Hon. R.B.N Maloba, SPM delivered on 23/2/2024 in Bungoma CM ELC Case No. 70 of 2018, by which his trespass claim over East Bukusu/North Kanduyi/1531 failed. The Appellant, who had bought the suit land from Namayuba Sitati Mufoto, argued that he was the lawful registered owner and that the Respondent was a trespasser who had erected structures and cultivated the land. He relied on Section 3 of the Trespass Act, Sections 24 and 26 of the Land Registration Act, Article 40 of the Constitution, and the Park Towers case on damages for trespass. The Respondent contended that the sale to Namayuba was illegal and that the purchase price was refunded before the District Officer under an arbitration agreement dated 3/4/1991, so the Appellant's title was fraudulently acquired. K. Bor, J allowed the appeal. The court held that the Appellant's claim was premised on trespass, not ownership; there was no evidentiary basis for the trial court's finding of fraud, which had treated the Respondent as a son of Marakha Kisuya without basis. The Respondent had not established any superior claim, nor standing to defend the estate of Marakha Kisuya, having no letters of administration. The trial court's judgment was set aside, the Respondent was ordered to remove structures and trees from the suit land within 30 days based on the boundary established pursuant to the court order of 29/5/2014, failing which they would be deemed to belong to the Appellant, and the Appellant was awarded the costs of the appeal and the suit.

Key legal issues

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01

Whether the Respondent was a trespasser on the suit land

Holding

The court found the Respondent had no superior claim and was not a beneficiary of the estate, thus a trespasser.

Reasoning

The Respondent did not establish any claim to the land; he was neither a beneficiary nor an administrator of Marakha Kisuya's estate. The Appellant held registered title to the suit land acquired from Namayuba Mufoto.

p. 3
02

Whether the trial court erred in finding the Appellant's title fraudulent

Holding

The court held there was no basis for the finding of fraud.

Reasoning

The Learned Magistrate's finding that Namayuba Mufoto was refunded the purchase price by Marakha Kisuya rested on treating the Respondent as Marakha's son, for which there was no evidentiary basis.

p. 2
03

Whether the Respondent had standing to defend the estate of Marakha Kisuya

Holding

He did not; only a duly appointed administrator could defend the estate.

Reasoning

The Respondent was neither a beneficiary nor a dependant of the late Marakha, and had not obtained letters of administration, so he lacked capacity to defend the estate's interests in the suit land.

p. 3

Legal principles established

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  • A suit premised on trespass requires proof only of the plaintiff's title and the defendant's entry; the defendant's standing to defend another's estate without letters of administration is untenable.
  • A person who has not been granted letters of administration cannot defend the estate of a deceased person.

Court orders

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  1. 1.The judgment of Hon. Maloba, SPM delivered on 23/2/2024 in Bungoma CMELC Case No. 70 of 2018 is set aside.
  2. 2.The Respondent is directed to remove the structures and trees on East Bukusu/North Kanduyi/1531 based on the boundary established by the District Land Registrar and District Land Surveyor following the court order issued on 29/5/2014, within 30 days, failing which the structures and trees will be deemed to belong to the Appellant as the registered proprietor.
  3. 3.The Appellant is awarded the costs of the appeal and the suit.

Authorities

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Legislation

  • Trespass ActSection 3
  • Land Registration ActSections 24 and 26
  • Constitution of KenyaArticle 40

Cases cited (1)

  • Park Towers Limited v John Mithamo Njika & 7 others
    [2014] eKLR
On appeal from
Senior Principal Magistrate's Court, Bungoma
Bungoma CM ELC Case No. 70 of 2018
Jurisdiction invoked
First appeal from the magistrates' court to the Environment and Land Court (statutory appeal)

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, "Nakitare v Barasa (Environment and Land Appeal E034 of 2025) [2026] KEELC 4403 (KLR)", Case Analysis (2026). Bungoma ELC Appeal (from Bungoma CM ELC Case No. 70 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4403/eng@2026-07-02

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