https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4403

Nakitare v Barasa (Environment and Land Appeal E034 of 2025) [2026] KEELC 4403 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEELC 4403 (KLR) Republic of Kenya In the Environment and Land Court at Bungoma Environment and Land Appeal E034 of 2025 AK Bor, J July 2, 2026 Between Francis Walekhwa Nakitare Appellant and Fred Mulongo Barasa Respondent Judgment 1.The Appellant lodged this appeal because he was dissatisfied with the judgment of Hon. R.B.N Maloba, Senior Principal Magistrate (SPM), delivered on 23/2/2024. The main grounds of appeal are that the Learned Magistrate failed to find that the Respondent was a trespasser on the suit land and that the Appellant was the lawfully registered owner of the suit land. Further, that the court failed to establish the relationship between the Appellant, Namayuba Sitati Mufoto, Marakha Kisuya and the Respondent. The Learned Magistrate was also faulted for failing to find that the Respondent had forcefully entered the suit land. 2.The appeal was canvassed through written submissions. The Appellant submitted that he was the owner of the land known as East Bukusu/North Kanduyi/ 1531 (the suit land) which he bought from Namayuba Sitati Mufoto, who in turn bought it from Marakha Kisuya. He referred to previous cases filed over the suit property including Bungoma ELC Case No. 111 of 2016 and Bungoma HCCC No. 165/2000. 3.The Appellant relied on Section 3 of the Trespass Act on the definition of trespass and urged that a clear boundary for his land was established following the report which emanated from the order made by the Judge in HCCC No. 165 of 2000. 4.The Appellant relied on Sections 24 and 26 of the Land Registration Act on the rights conferred upon a proprietor by registration and the provision that courts are to take as prima facie evidence the name of the proprietor of land as the absolute owner subject to encumbrances and conditions endorsed on the title. He also relied on Article 40 of the Constitution and argued that a title deed was conclusive evidence of ownership of land and afforded him the protection of his property. 5.He maintained that the Respondent trespassed onto his land and erected structures and cultivated part of the land thereby denying him use of the suit land. This forced the Appellant to file a case in the High Court which was eventually transferred and registered as Bungoma CM ELC Case No 70 of 2018. 6.The Appellant referred to the evidence which the Respondent adduced before the trial court, where he stated that he was wrongly sued by the Appellant because the suit land was not registered in his name. The Appellant pointed out that he sued the Respondent for trespass and not ownership of the suit land. The Appellant also referred to the Respondent’s evidence to the effect that the registered owner of the suit land had sold the land to Namayuba Sitati Mufoto but the money was refunded back to him. 7.The Appellant submitted that the Respondent did not have the legal standing to represent or defend the estate of Mr. Marakha Kisuya because he was neither a beneficiary nor a dependant of the late Marakha. He elaborated that John Barasa Kisuya as the administrator was empowered to defend the estate but not the Respondent. 8.The Appellant submitted that the trial court failed to consider the evidence that he tendered. He faulted the trial court for relying on the copy of the title deed for East Bukusu/North Kanduyi/560 without a certificate of official search which would have shown that the land was subdivided a while back. 9.The Appellant submitted that he was entitled to the reliefs sought in the plaint in which he sued the Respondent for trespassing East Bukusu/North Kanduyi/1531 and added that his title over that suit land had never been challenged. The Appellant cited Park Towers Limited v John Mithamo Njika & 7 others [2014] eKLR in which he urged that the court stated that where trespass is proved, a party did not need to prove that he suffered any loss or damage to be awarded damages. 10.The Respondent submitted that the agreement which Namayuba Sitati Mufoto entered into over the suit land was illegal because Namayuba did not have land to sell. Further, that he got a refund before the District Officer in terms of the agreement dated 3/4/1991. He argued that the Appellant and Namayuba Mufoto acquired title over the suit land through the back door. 11.The issue for determination is whether the court should allow the appeal. The trial court noted that East Bukusu/North Kanduyi/1530 and East Bukusu/North Kanduyi/1531 were subdivisions of parcel no. East Bukusu/North Kanduyi/560. The Learned Magistrate went on to observe that parcel no. East Bukusu/North Kanduyi/ East Bukusu/North Kanduyi/560 was registered in Marakha Kisuya’s name. She also noted that parcel no. East Bukusu/North Kanduyi/ East Bukusu/North Kanduyi/1531 was transferred to Namayuba Mufoto on 23/10/1991 while parcel no. 1530 was in the name of Marakha Kisuya. 12.The Learned Magistrate found that in the absence of evidence that the sale between Marakha Kisuya and Namayuba Mufoto was renegotiated then the transfer East Bukusu/North Kanduyi/1531 to Namayuba Mufoto and later to the Appellant was fraudulent and illegal. The Learned Magistrate relied on the arbitration award dated 3/4/1991 and the Respondent’s evidence that Namayuba Mufoto was refunded the purchase price of Kshs. 27,000/=. 13.The Appellant’s claim before the trial court was premised on trespass and not ownership of land. The Learned Magistrate erred when she observed that the Respondent’s father Marakha Kisuya refunded Namuba Mufoto the purchase price. There is no basis for treating the Respondent as a son of Marakha Kisuya. There was no basis for the Learned Magistrate’s finding that the Appellant’s title was fraudulently obtained. 14.It is evident that the dispute between the parties herein was the subject matter of Bungoma HCCC No. 165 of 2000 in which orders were made for the rectification of the boundary between East Bukusu/North Kanduyi/1530 and 1531. The Respondent has not established any superior claim to the suit land. It is not clear how he came to occupy the land adjacent to the suit land yet it does not seem that he is a beneficiary of the assets of the estate of the late Marakha. He has not been granted letters of administration to defend the estate of the late Marakha. 15.The judgment of Hon. Maloba, SPM delivered on 23/2/2024 in Bungoma CMELC Case No. 70 of 2018 is set aside. 16.The Respondent is directed to remove the structures and trees on East Bukusu/North Kanduyi/1531 based on the boundary which was established by the District Land Registrar and District Land Surveyor following the court order issued on 29/5/2014 within 30 days of today failing which they will be deemed to belong to the Appellant as the registered proprietor for the suit land. 17.The Appellant is awarded the costs of the appeal and the suit. DELIVERED VIRTUALLY AT BUNGOMA THIS 2ND DAY OF JULY 2026.K. BORJUDGEIn the Presence of:-Ms. E. Nekesa holding brief for Mr. C. Akenga for the AppellantMr. Fred Mulongo- the Respondent in open courtCourt Assistants –Bett/Metrine