Christopher Tinega Morigori & 68 Others v Board of Management, Kenya African National Farmers & Traders Union (KANTAFU) & Another
The bottom line
#The Environment and Land Court dismissed 69 plot buyers' claims and ordered them to vacate within 90 days, because the union that sold them plots never owned the land.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether it was proved that an enforceable contract existed between the defendants
- 2.If (a) is in the affirmative, whether the plaintiffs are members of the 1st defendant and could benefit from the contract
- 3.Whether the plaintiffs, including the defendants added in the counterclaim, are trespassers
Key legal issues
#Whether an enforceable contract existed between the defendants over the mother parcel
No enforceable contract exists; the only existing contract is that of 12 September 2022, which the 1st defendant breached by non-payment
The plaintiffs, bearing the burden under Sections 107 and 109 of the Evidence Act, never led evidence of a contractual relationship between the defendants, nor produced the alleged 21 June 1994 agreement which clause 18 of the 2022 agreement revived. The 2022 agreement was breached by the 1st defendant's failure to pay the purchase price of Kshs. 59,400,000/-, rendering it unenforceable.
Whether the plaintiffs could derive title through the 1st defendant's reallocation
The 1st defendant could not reallocate the mother parcel as it did not own it
Applying nemo dat quod non habet, the court held that the 1st defendant, having no interest in the mother parcel registered in the 2nd defendant's name, could not pass any valid interest to the plaintiffs through reallocation. This rendered determination of the plaintiffs' membership issue unnecessary.
Whether the plaintiffs are trespassers on the mother parcel
The plaintiffs and all occupants claiming from the 1st defendant are in illegal occupation; the counterclaim succeeds
It was undisputed that the 2nd defendant is the registered owner, that some plaintiffs occupy the land, and that the 1st defendant, not the owner, put them in possession. Occupation derived from a party with no title is illegal, and general damages of Kshs. 1,500,000/- were awarded as trespass is actionable per se.
Legal principles established
#- The party alleging the existence of facts bears the initial legal burden of proof, and the evidential burden shifts once an initial burden is discharged
- One cannot allocate or pass an interest in land one does not own
- Trespass requires physical entry onto another's land without consent or lawful justification, and ownership is not a prerequisite for a trespass claim
- Trespass is actionable per se without proof of actual damage
Court orders
#- 1.The plaintiffs' suit is dismissed
- 2.A declaration that the 2nd defendant is the lawful proprietor of L.R. No. Donyo Sabuk/Komarock Block 1/529
- 3.Plaintiffs and any person deriving occupancy from the 1st defendant to vacate, remove developments at their own cost and give vacant possession within 90 days, failing which forcible eviction
- 4.Permanent injunction restraining plaintiffs and those claiming through the 1st defendant from interfering with the 2nd defendant's entry, occupation, possession or quiet enjoyment of the mother parcel
- 5.The OCPD Matungulu Sub-County to provide security for compliance with the orders
- 6.General damages of Kshs. 1,500,000/- awarded to the 2nd defendant, to be borne by the plaintiffs
- 7.The 1st defendant to bear the 2nd defendant's costs of the suit and counterclaim
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land disputes (suit and counterclaim)
Relief refused
#Plaintiffs' prayer for a permanent injunction restraining interference with their quiet possession of the allotted plots
No enforceable contract between the defendants; the 1st defendant could not pass title it did not own
Plaintiffs' prayer compelling the defendants to issue title deeds for their allotted plots
Plaintiffs failed to prove a contractual relationship between the defendants over the mother parcel
Counterclaim eviction as against costs - damages were instead apportioned between plaintiffs and 1st defendant
The 1st defendant was held responsible for the circumstances in which the occupants found themselves
Costs
The 1st defendant shall bear the 2nd defendant's costs of the suit and counterclaim; no order on plaintiffs' costs of the suit beyond dismissal.
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.
Consequently, this court finds that no enforceable contract exists between the defendants. Guided by the common law doctrine of nemo dat quod non habet, it is also hereby found that the 1st defendant could not reallocate the mother parcel to the plaintiffs, as it could not allocate land it did not own.
a) The plaintiffs’ suit is dismissed. b) A declaration is hereby made that the 2nd defendant is the lawful proprietor of all that parcel of land known as title no. L.R. No. Donyo Sabuk/Komarock Block 1/529.
General damages of Kshs. 1,500,000/- is awarded to the 2nd defendant, to be borne by the plaintiffs. g) The 1st defendant shall bear the 2nd defendant’s costs of the suit and counterclaim.
It is well established that trespass is an actionable offence per se, without the need to prove actual damage.
The prevailing theme in the definition of trespass is that ownership is not a prerequisite for such a claim. Nevertheless, the assertion of a person holding title to the land takes precedence over competing claims of possession.
Issues in the judgment
#Conflicting damages figures between reasoning and orders
Hearing date of 21 May 2025 precedes submissions dated 2 June 2026 by over a year
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christopher Tinega Morigori & 68 Others v Board of Management, Kenya African National Farmers & Traders Union (KANTAFU) & Another", Case Analysis (2026). ELC Civil Suit No. E091 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5888/eng@2026-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.