Atabo (Suing as the legal representative of the Estate of the Late Sarah Atambo Esironi) v Land Registrar-Kitale & another (Environment and Land Case 54 (E049) of 2021) [2026] KEELC 1203 (KLR)
The bottom line
#A Kitale court ordered a landowner who fenced off 1.16 acres beyond his title to vacate, pay Kshs 2 million, and cover the legal costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.If the plaintiff has established trespass, encroachment, grabbing, and illegal takeover of the suit property
- 2.If the 2nd defendant was justified in entering, occupying, using, and developing the 1.16 acres of the suit property
- 3.If the 2nd defendant was justified in admitting registering and sustaining the caution over L.R. No. Kitale Municipality Block 16/Kaura Wa Bechau/74
- 4.If the plaintiff is entitled to the reliefs sought
- 5.What is the order as to costs?
Key legal issues
#Whether the 2nd defendant encroached on the suit property
Yes – the court-ordered survey established that parcel No. 75 encroaches 1.16 acres onto parcel No. 74
The plaintiff produced a title for 3.175 Ha and the 2nd defendant's title was for 0.8093 Ha. The licensed surveyor, PW2, measured the parcels on the ground pursuant to a court order and found the 2nd defendant occupying 1.16 acres beyond his entitlement, cutting off the plaintiff's access to the stream. The 2nd defendant admitted occupying more than his title states. The RIM showed parcel No. 74 should touch the stream.
Whether the 2nd defendant was justified in claiming and occupying the extra 1.16 acres under the alleged purchase
No – the alleged purchase of the extra land was not proved; no written agreement compliant with Section 3(3) of the Law of Contract Act exists
The sale agreement spoke of one acre only; the receipts did not indicate parcel numbers or that the maker/recipient was the deceased, and no forensic document examination linked them to the deceased. No transfer, land control board consent or specific performance was ever sought to regularise the extra acreage, whether before the deceased's death in 2004 or after the confirmed grant in 2021.
Whether the suit is barred by limitation under Section 7 of the Limitation of Actions Act
No – the cause of action is a continuing trespass, renewed daily, so limitation does not bar the claim
The 2nd defendant's claim founded on contract, if made in 1994, expired after six years under Section 4(1) of Cap 22. The plaintiff's cause is trespass continuing from 1998 to the present; following the authorities on continuing trespass, each day constitutes a fresh cause of action. The court also noted a prior ruling dated 29/3/2023 on the point.
Whether the caution lodged by the 2nd defendant on 4/6/2010 was justified
No – the caution was maliciously registered and sustained without justifiable cause
A cautioner bears the onus of justifying the caution before the Land Registrar. The 2nd defendant made no efforts to advance his claim against the deceased before or after the caution, and only asserted his claim when sued in 2021. The plaintiff had complied with Sections 71(3) and 73(1) of the Land Registration Act in seeking removal. Under Section 75, a person who lodges or maintains a caution wrongfully is liable for damage.
Whether the plaintiff is entitled to the reliefs sought including damages
Yes – judgment entered for the plaintiff, including permanent injunction, eviction, rectification of the register and general and exemplary damages of Kshs.2,000,000/=
Trespass is actionable per se; the plaintiff proved ownership and encroachment, shifting the burden to the defendant. The plaintiff was denied enjoyment of her Article 40 rights from 1998 to date, both by physical occupation and by the caution preventing dealings with the title. A permanent injunction is appropriate upon determination of the parties' rights on the merits.
Legal principles established
#- Trespass to land is actionable per se without proof of damages
- Once a plaintiff proves ownership and encroachment, the burden shifts to the defendant to justify the trespass
- A contract for the disposition of an interest in land must be in writing under Section 3(3) of the Law of Contract Act
- A continuing trespass consists of acts renewed or continued from day to day, so limitation does not bar the claim
Court orders
#- 1.Declaration that the illegal encroachment, takeover, grabbing and boundary walls and fence erected on more hectares of title No. Kitale Municipality Block 16/Kaura Wa Bechau/74 are illegal and unlawful
- 2.Declaration that the encroached and/or grabbed land of more acres on the suit property belongs to the estate of the deceased
- 3.Order compelling the 1st defendant to rectify the register of any entry invalidating the purported caution placed on the register by the 2nd defendant on 4/6/2010
- 4.Permanent injunction restraining the 2nd defendant, his agents, servants or assignees from interfering with the plaintiff's quiet possession, use, occupation and enjoyment of the suit property, from trespassing or dealing with it, and compelling them to vacate, failing which forceful eviction
- 5.General and exemplary damages of Kshs.2,000,000/= as compensation for trespass and illegal activities thereon with effect from 4/6/2004 to date
- 6.Order that the OCPD Kitale and DCIO Kiminini ensure compliance with the orders of permanent injunction and eviction should the 2nd defendant refuse to vacate voluntarily
- 7.Costs of the suit to the plaintiff to be met by the 2nd defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to title, occupation and use of land
Relief refused
#Order for a survey of the portion owned by the plaintiff to determine the actual mutation and level of encroachment
Not expressly granted; the survey was already carried out pursuant to a prior court order and its findings adopted by the court
Costs
Costs of the suit to the plaintiff are to be met by the 2nd defendant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The illegal encroachment, takeover, grabbing, and boundary walls and a fence, as erected on more hectares of title No. Kitale Municipality Block 16/Kaura Wa Bechau/74 is illegal and unlawful.
General and exemplary damages at Kshs.2,000,000/=, as compensation for the trespass and the illegal activities thereon, with efiect from 4/6/2004 to date.
Costs of the suit to the plaintifi are to be met by the 2nd defendant.
I find the caution was maliciously registered and sustained.
The said receipts do not amount to a sale agreement as envisaged by Section 3(3) of the Law of Contract Act and Section 38 of the Land Act.
Once proved, trespass is actionable per se, without proof of damages, as held in Park Towers Ltd -vs- Mithamo (supra).
Issues in the judgment
#Inconsistent dates for the plaintiff's letters – the plaint records the letters as dated 13/10/2016 and 8/11/2021, but the analysis paragraph refers to letters 'dated 13/10/2026 and 8/11/2021'
Inconsistent dates for the caution by the 2nd defendant – plaint and orders say 4/6/2010, while the analysis refers to entry No. (5) as a caution recorded on 4/6/2020
Inconsistent dates cited for the dispute resolution agreement – the defence and evidence refer to 23/4/1999 (or 23/9/1999) while the plaint's submissions and exhibits refer to a document dated 23/4/1999 as DMFI-(4) and elsewhere 'D. Exhibit No. (4)' as dated 29/4/1999
Inconsistent dating of the surveyor's report relied on by the 2nd defendant – variously 14/9/2022 and 14/9/2023
Letter dated 13/11/2025 cited in evidence of DW3 appears anachronistic in context of exhibits said to be from 2020
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Atabo (Suing as the legal representative of the Estate of the Late Sarah Atambo Esironi) v Land Registrar-Kitale & another (Environment and Land Case 54 (E049) of 2021) [2026] KEELC 1203 (KLR)", Case Analysis (2026). ELC Case (Kitale) – unnumbered in judgment (suit over Kitale Municipality Block 16/Kaura Wa Bechau/74). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1203/eng@2026-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.