'1. Through the amended plaint dated October 25, 2021, the plaintiff filed a suit in the trial court seeking the following reliefs:
a) A permanent injunction preventing the defendants, their agents, and/or employees from trespassing on the plaintiff’s property, Plot No. 131/KLF/2005/1.
b) A mandatory injunction requiring the defendants, their agents, and/or servants to remove the poles and structures on the plaintiff’s property, Plot No. 131/KLF/2005/1, and to clear debris from the premises.
c) General damages for trespass.
d) Costs of the suit.
e) Interest on items (c) and (d) above at court rates until payment is made in full.
2. On April 6, 2023, the trial court issued its judgment dismissing the plaintiff’s case, with costs awarded to the defendants.
3. Aggrieved by that judgment, the appellant filed a Memorandum of Appeal dated April 23, 2023, in this court, outlining the grounds for the appeal as follows:
a) The learned magistrate erred both factually and legally by concluding that the appellant failed to prove ownership of the suit property, despite substantial documentary evidence supporting it.
b) The learned magistrate misinterpreted the burden of proof required to establish the allocation of the suit property beyond the documentary evidence submitted.
c) The learned magistrate erred both factually and legally in finding that the appellant failed to prove trespass into the suit property by the respondents.
d) The learned magistrate misdirected himself by ignoring the findings of the sole expert witness regarding the ground situation of the suit property.
e) The learned magistrate erred both factually and legally by failing to find that the respondents were trespassers, despite their open admission and lack of any rights.
f) The learned magistrate erred both factually and legally in dismissing the appellant’s suit for failing to prove trespass on a balance of probabilities, despite documentary evidence to the contrary.
g) The learned magistrate misdirected himself in finding that the respondents, except for the 4th respondent, had been in possession long before the allocation to the appellant.
h) The learned magistrate misjudged himself by ignoring the importance of the appellant''s surveyor''s evidence.
i) The learned magistrate erred in law by dismissing a claim that was not heavily contested.
4. The appeal was resolved through written submissions. The court received detailed submissions from the learned counsels representing the appellant, as well as the 2nd and 4th respondents, for which it is grateful.
5. Based on the record of appeal and the submissions before me, the issues I identify for the court''s decision are whether: The appellant proved its case at the trial court; the trial court made errors in law and fact when granting the orders in the judgment dated April 6, 2023; and whether the appellant is entitled to the orders requested in the appeal.
6. It is well established that a first appellate court must reassess the evidence from the trial court and the judgment, then form its own independent decision on whether to grant the appeal. A first appellate court has the authority to thoroughly review all evidence and draw conclusions, remembering that it did not have the chance to see and hear the witnesses firsthand. This duty was outlined in Selle and another v Associated Motor Boat Co. Limited [1968] EA 123, and in Peters v Sunday Post Limited [1958] EA 424, which cases are cited with approval in Ndungu Dennis v Ann Wangari Ndirangu and Eddah Mwihaki [2018] KEHC 8799 (KLR), where Ngugi J (as he then was) summed it up this way:
“The appropriate standard of review established in these cases can be stated in three complementary principles:
i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
7. According to the appeal record, the evidence presented before the trial court shows that PW1, Philiph Mutua, a member of the church, adopted his witness statement dated August 20, 2019, as his primary evidence. He also submitted the documents listed and dated January 31, 2018, and October 31, 2019, marked as P. exh1-23, except for the document dated April 25, 1995, which was illegible.
8. He stated that the defendants trespassed onto the suit property after it was allocated to the plaintiff. He clarified that the document produced as P. exh23 is an allotment letter issued by the National Land Commission for the suit property. Furthermore, he testified that the suit property was 4.5 acres, even though the allotment letter indicates a size of 1.6 hectares, an inconsistency he could not explain. Additionally, he stated that the church took possession of the suit property in 1993 after applying for allocation, but did not fully fence it when the defendants started claiming it.
9. William Chimenga, the 1st defendant, lived on land bordering the suit property. The feud over the suit property began in 2015, when the 1st defendant annexed part of the land and began farming it. Rashid was not a resident of the land and first appeared in 2017, when he trespassed onto the suit property, while in 2016, Gogwe, the 2nd defendant, began claiming that the land was his, even before it was allocated to the church. During cross-examination by Mr. Miller, learned defense counsel for the 1st and 3rd defendants, the witness stated that the church''s allotment application was unavailable and admitted that a letter dated June 7, 1993, from the then Urban Council for Mariakani (P. exh1) did not reference any specific plot number. He also said that the minutes of the urban council, produced as P. exh3, did not show that the plaintiff was represented. He further admitted that he did not attend all the meetings about the matter and that, to the best of his knowledge, the council was to allocate the suit property free of charge. He disclosed that during a demarcation exercise, the plaintiff was not represented, but he knew that Rashid was assigned a plot within the area. He also stated that after allocation, they did not fence off the suit property but placed some beacons. When asked about a letter dated August 18, 2014, in which the plaintiff sought permission to build a new fence, the witness stated he was sure they had not erected any fence on the suit property, and even if another fence existed, he did not know who put it up. He added that they had never developed the land due to a lack of ownership documents. In response to questions from Mrs. Shikanda, learned defense counsel for the 2nd defendant, PW1, said he did not recall accepting the letter of offer dated February 26, 2018 (P. exh22) in writing. Although the plaintiff had made the payments mentioned in the letter of offer, he did not have receipts to support this. He also noted that the 2nd defendant had annexed half an acre of the suit property, but again admitted he lacked documentary evidence to support this. Referring to P. exh2, he said he did not know if the minutes were ever confirmed. It was also his testimony that they had sent demand letters to the 2nd defendant, but these were not before the court. In response to questions from Mr. Amakobe, learned defense counsel for the 4th defendant, the witness said the church does not own Plot No. 112, which is different from the suit property, and that the National Land Commission had approved the matter for court proceedings. During re-examination, the witness reaffirmed the plaintiff''s claim and added that they had issued demand letters to all defendants. He also revealed that the second defendant had complained to NLC about the matter.
10. PW2; Dennis Maleveka, a land surveyor, produced a survey report based on an exercise conducted in 2018, which he submitted in 2019 (P. exh20). He stated that he was guided by a Physical Development Plan and an allotment letter issued to the plaintiff. He also testified that when preparing his report, he did not have a plot number for the suit property; the number mentioned in his report is the PDP reference number. On the ground, he observed that the suit property measured 1.33 hectares. The report aimed to map out the suit property and assist the Director of Survey in taking further action. Additionally, he stated that the shape of the suit property shown in the survey report and the PDP differs, and that the titling process had not yet been completed.
11. During cross-examination, he stated that he is a private surveyor hired by the church and that he couldn''t remember the names of its representatives during the exercise. He also mentioned that it was necessary to invite others with parcels of land bordering the exercise to participate. He insisted that, when identifying the boundaries of the suit property, he was guided by the plaintiff, the PDP, and the allotment letter. He also said there were no beacons on the ground during his visit. However, he denied relying solely on the plaintiff''s information to identify the boundaries. He added that Physical Planners prepare PDPs. In re-examination, he stated that the shape of the suit property, as shown on the PDP and his report, differs due to developments on the ground.
12. DW1; Ishmael Rashid Hassan, the third defendant, adopted his witness statement dated August 16, 2018, as his main evidence. The statement indicates that he owns Plot No. 112, which he bought from Johnstone Charo Mweni, and that this property is separate from the suit property. He also states that he knows the first defendant owns Plot No. HSE/MKI/C1/97, which is unrelated to the suit property. In cross-examination, he testified that he only knows of the suit property on paper. He further revealed that he inherited Plot No. 112 from his father. He added that his neighbors are the first and second defendants. Additionally, he disclosed that part of Plot No. 112 was sold to the fourth defendant and that he was unaware of any claim by the church before the sale. It was also his testimony that he did not receive the demand letter dated January 10, 2018, before selling the land, and that the letter was served on the first defendant, who resides on the land. He further stated that the second defendant has been his neighbor since 1990.
13. DW2; William Yawa Chimega, the first defendant, adopted his witness statement dated June 14, 2016, as his main evidence and submitted the listed documents, including a letter of allotment for Plot No. HSE/MKI/C1/97 in his favor, marked as D. exhl-11. In cross-examination, he added that he purchased a 50ft by 100ft plot from Plot No. 112, which borders Plot No. 97. He also explained that the boundaries of their land were verified by a surveyor hired by an organization commissioned by the World Bank to upgrade the area. Finally, he testified that his land does not border the land claimed by the plaintiff.
14. DW3; Joyce Kombe, a retired senior chief for Mariakani, also adopted her witness statement filed on August 16, 2019, in which she denounces the plaintiff''s claim to the suit property and states that the attempts to alienate the land were initiated by one Awadh with the intention of grabbing the land for himself through the church. One of the rightful owners, the 2nd defendant, learned of the scheme and complained to the area chief. During a meeting called to discuss the matter, the church failed to produce ownership documents. In cross-examination, she stated that she was not involved in the allocation of plots but in arbitrating ownership disputes and advising residents on procedures for addressing grievances related to plot allocations.
15. DW4; Chuhi Ngala also adopted his witness statement dated June 14, 2019, which states that he used to work for a man named Awadh, a former councilor, who devised a scheme to allocate a parcel of land to the plaintiff illegally. However, the land belonged to others, including the 2nd defendant. Later, residents who possessed ownership documents had their plots surveyed and assigned numbers through an exercise sponsored by the World Bank. The plaintiff, who lacked ownership documents, did not receive a number. During cross-examination, he maintained that he used to attend some of the council''s meetings that handled plot allotment. He also testified that he knew the location of the plaintiff''s land but not its size; he said it is larger than Chimenga''s but smaller than Rashid''s land.
16. DW5; Kombo Charo adopted his witness statement dated June 14, 2019, as his evidence in chief. The statement indicates that he is the Chairman of the Kenya Informal Settlement Project (KISP) for the Njoro area in Mariakani and that he was aware that former County Council Chairman Awadh attempted to illegally allocate a plot to the plaintiff so that he could eventually take possession of it. During the survey, Rashid proved that he owned his land, which he inherited from his father. He had it surveyed in his name and received a plot number. In cross-examination, he stated that the disputed parcels were not assigned plot numbers and were left out, including the plot owned by the 2nd defendant. He also said he was not involved in the county council''s plot allotment process and was unaware that the council had issued plot numbers to Chimenga and Rashid.
17. During re-examination, he stated they did not survey or assign a plot number to the 2nd defendant''s land because he and the plaintiff were in a dispute over ownership, and the second defendant opposed any discussions on the matter.
18. DW6; George Gogwe, the 3rd defendant, adopted his witness statement dated June 6, 2018. The statement indicates that he was the first person to settle on a piece of land measuring about 2.5 acres in 1975, remaining there until sometime in the 1980s when the plaintiff began claiming ownership. It is also his evidence that the plaintiff has hindered his plans to build permanent structures on his land and that he is unaware of the documents supporting the plaintiff''s alleged ownership. He further states that his attempts to resolve the issue through the NLC were unsuccessful because the plaintiff did not cooperate.
19. During cross-examination, he said that he has lived on the land continuously and that Chimenga is one of his neighbors.
20. DW7; Kitsao Nzioka, through a statement dated June 8, 2018, sought to corroborate DW6’s testimony and added that he started seeing the 2nd defendant on the land in 1971. He acknowledged that disputes over the land’s ownership have occurred.
21. DW8; Saumu Chuphy, the 4th defendant, adopted her statement dated October 25, 2021, as her primary evidence. The statement states that she bought a portion of land from Ishmael Rashid (the 1st defendant), identified as Plot No. 112, which is different from the suit property. She presented her documents filed under the list of documents dated October 25, 2021, as D.exh. 12 and 15.
22. During cross-examination, she said she verified that the land belonged to Rashid before buying and that she was shown a demand notice for rates issued by the county council in Rashid’s name, along with an allotment letter. She also stated that she was unaware of any dispute before purchasing the land, even though a demand letter had been sent to Rashid three days before the sale. She added that she bought half an acre, as agreed with Rashid.
23. After outlining the issues for determination, the learned trial magistrate summarized the questions to decide whether the plaintiff demonstrated beneficial ownership of the suit property and whether they possessed the necessary ownership documents. He also examined whether the proper allocation procedure was followed to justify the plaintiff''s requested orders. The main issue in this appeal was whether the appellant could prove ownership of the suit property based on documents in their possession relating to an alleged allocation of unsurveyed public land.
24. The Supreme Court clarified in Torino Enterprises Limited v Attorney General [2023] KESC 79 (KLR) that letters of allotment are merely invitations to treat, not actual titles. To establish valid ownership, an allottee must meet the conditions specified in the allotment letter and register the land in accordance with the law. Only registration grants a transferable title, and many parcels issued through allotments still lack registered titles. Some rely on allotment letters as proof of ownership when purchasing property, but if they do not meet the conditions or register, the property remains public land. To convert an allotment letter into a title, one must accept the offer, pay the applicable fees, survey the land, and obtain the necessary documents.
25. Delving into these issues in paragraph 10 of his judgment, the learned trial magistrate made the following findings:
” The plaintiff in his plaint at paragraph 3 pleaded that the Urban Council Mariakani allocated it Plot No. 131/KLF/2005/1, now County Government of Kilifi, on 21/6/1993.
First and foremost, during the testimony of Pw2, it emerged and it is corroborated by some of the documents on record including the letter of Allotment dated 26th February 2018 (P.exh 20) that Number 131/KLF/2005/1 does not refer any particular plot. It is a reference number for a Part Development Plan for the area within which the suit property is located.
Secondly, the plaintiff''s witness did give and or produce any credible documentary evidence to show that indeed the suit property was so allocated to the plaintiff on the alleged date. The plaintiff appeared to rely on an extract of council minutes dated 21st June 1993, but even if it were true that a resolution had been made on that date to allocate any parcel of land to the plaintiff, there is no evidence that the same was followed with an issuance of a letter of allotment by the Council the same date and or soon thereafter. Actually, in cross-examination Pw1 admitted he had not produced the full minutes of the Council to shed light on the subject matter more so noting that the actual location of the land purportedly allocated during that meeting is not given in the extract minute produced in court. Further to this it is also worth of note that whereas the minute talks of a 5-acre land, Pwl testified that they had been allocated 4.5 acres. The size further differs with what was confirmed to be the actual size on the ground by Pw2.
In addition to the foregoing, as submitted by the defence counsel for the 4th defendant, Pwl did not demonstrate that the prerequisites to a lawful allocation of plots within trust land and or government land had been followed in making the alleged allocation, in particular section 10 of the Trust Lands Act.”
26. Citing statutory requirements regarding how the allocated public land is allocated, the trial magistrate believed that, whether this land was allocated in 1993 by the defunct Mariakani Urban Council or in 2018 by the NLC, the proper procedure was not followed by the plaintiff.
27. Notably, on pages 14 and 15 of the judgment, the trial magistrate stated:
“In addition to this, the plaintiff did not show that it complied even with a single condition of the conditions set out in the said letter of Allotment. Indeed, in cross examination its witness admitted that he had no evidence that the plaintiff accepted the allotment yet the letter required acceptance in writing of the conditions set out therein.
In the case of Mbau Saw Milis Ltd v Attorney General for and on behalf of the Commissioner of Lands, & 2 others [2014] eKLR, it was stated as follows:
"I have considered the evidence on record and the submissions of the parties and do find that a letter of allotment was issued to Mr. Joseph K. Mugambi on 21/10/1971 with a condition to accept the offer within 30 days. He did not do so, and thereafter the offer lapsed 30 days after it was made in accordance with the allotment letter. Having failed to accept the offer as stipulated in the letter of allotment, Mr. J. K. Mugambi did not acquire interest in the unsurveyed lorry depot and therefore had no interest to transfer to the plaintiff. This court holds that a letter of allotment does not confer any property rights to a person unless there is acceptance and payment of the stand premium and ground rent. In the letter dated 17/6/1988 which was written about 17 years after the allotment letter was issued, the Commissioner of Lands confirmed that the plot was allocated to Joseph M. Mugambi in 1971 for lorry depot. However, the plot had neither been paid for nor an acceptance of the offer in the allotment letter made. The implication of this letter and therefore the offer had lapsed. The offer having lapsed. The allottee Mr.Joseph Mugambi did not have any interest to transfer to the plaintiff and therefore all transactions between the allottee and the plaintiff were a nullity."
Thus, even if I had found the Letter of Allotment dated 26th February 2018 to have been validly issued, then the same would have lapsed upon expiry of 90 days of postmark for want of acceptance and payment of the requisite charges specified thereon. In the upshot I make a finding that the plaintiff has not proved on a balance of probabilities that she is the bonafide owner of the suit property. “
28. Based on the evidence on record and since the trial court was determining ownership interests of unsurveyed public land and the relevant procedure for allocation of public land, I find that the trial magistrate properly considered the evidence and the applicable law, and that this court will not disturb the findings of the trial court.
29. It follows that, because the plaintiff could not prove ownership in the trial court, the other reliefs sought in the plaint could not succeed.
30. In a nutshell, the current appeal has no merit. It is hereby dismissed with costs.
Dated, signed, and delivered virtually at Malindi on this 22nd day of October, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Mkomba for the Appellant
Mr. Mwanzia for the 2nd Respondent
Mr. Amakobe for the 4th Respondent
Happy: Court Assistant
'
a) A permanent injunction preventing the defendants, their agents, and/or employees from trespassing on the plaintiff’s property, Plot No. 131/KLF/2005/1.
b) A mandatory injunction requiring the defendants, their agents, and/or servants to remove the poles and structures on the plaintiff’s property, Plot No. 131/KLF/2005/1, and to clear debris from the premises.
c) General damages for trespass.
d) Costs of the suit.
e) Interest on items (c) and (d) above at court rates until payment is made in full.
2. On April 6, 2023, the trial court issued its judgment dismissing the plaintiff’s case, with costs awarded to the defendants.
3. Aggrieved by that judgment, the appellant filed a Memorandum of Appeal dated April 23, 2023, in this court, outlining the grounds for the appeal as follows:
a) The learned magistrate erred both factually and legally by concluding that the appellant failed to prove ownership of the suit property, despite substantial documentary evidence supporting it.
b) The learned magistrate misinterpreted the burden of proof required to establish the allocation of the suit property beyond the documentary evidence submitted.
c) The learned magistrate erred both factually and legally in finding that the appellant failed to prove trespass into the suit property by the respondents.
d) The learned magistrate misdirected himself by ignoring the findings of the sole expert witness regarding the ground situation of the suit property.
e) The learned magistrate erred both factually and legally by failing to find that the respondents were trespassers, despite their open admission and lack of any rights.
f) The learned magistrate erred both factually and legally in dismissing the appellant’s suit for failing to prove trespass on a balance of probabilities, despite documentary evidence to the contrary.
g) The learned magistrate misdirected himself in finding that the respondents, except for the 4th respondent, had been in possession long before the allocation to the appellant.
h) The learned magistrate misjudged himself by ignoring the importance of the appellant''s surveyor''s evidence.
i) The learned magistrate erred in law by dismissing a claim that was not heavily contested.
4. The appeal was resolved through written submissions. The court received detailed submissions from the learned counsels representing the appellant, as well as the 2nd and 4th respondents, for which it is grateful.
5. Based on the record of appeal and the submissions before me, the issues I identify for the court''s decision are whether: The appellant proved its case at the trial court; the trial court made errors in law and fact when granting the orders in the judgment dated April 6, 2023; and whether the appellant is entitled to the orders requested in the appeal.
6. It is well established that a first appellate court must reassess the evidence from the trial court and the judgment, then form its own independent decision on whether to grant the appeal. A first appellate court has the authority to thoroughly review all evidence and draw conclusions, remembering that it did not have the chance to see and hear the witnesses firsthand. This duty was outlined in Selle and another v Associated Motor Boat Co. Limited [1968] EA 123, and in Peters v Sunday Post Limited [1958] EA 424, which cases are cited with approval in Ndungu Dennis v Ann Wangari Ndirangu and Eddah Mwihaki [2018] KEHC 8799 (KLR), where Ngugi J (as he then was) summed it up this way:
“The appropriate standard of review established in these cases can be stated in three complementary principles:
i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
7. According to the appeal record, the evidence presented before the trial court shows that PW1, Philiph Mutua, a member of the church, adopted his witness statement dated August 20, 2019, as his primary evidence. He also submitted the documents listed and dated January 31, 2018, and October 31, 2019, marked as P. exh1-23, except for the document dated April 25, 1995, which was illegible.
8. He stated that the defendants trespassed onto the suit property after it was allocated to the plaintiff. He clarified that the document produced as P. exh23 is an allotment letter issued by the National Land Commission for the suit property. Furthermore, he testified that the suit property was 4.5 acres, even though the allotment letter indicates a size of 1.6 hectares, an inconsistency he could not explain. Additionally, he stated that the church took possession of the suit property in 1993 after applying for allocation, but did not fully fence it when the defendants started claiming it.
9. William Chimenga, the 1st defendant, lived on land bordering the suit property. The feud over the suit property began in 2015, when the 1st defendant annexed part of the land and began farming it. Rashid was not a resident of the land and first appeared in 2017, when he trespassed onto the suit property, while in 2016, Gogwe, the 2nd defendant, began claiming that the land was his, even before it was allocated to the church. During cross-examination by Mr. Miller, learned defense counsel for the 1st and 3rd defendants, the witness stated that the church''s allotment application was unavailable and admitted that a letter dated June 7, 1993, from the then Urban Council for Mariakani (P. exh1) did not reference any specific plot number. He also said that the minutes of the urban council, produced as P. exh3, did not show that the plaintiff was represented. He further admitted that he did not attend all the meetings about the matter and that, to the best of his knowledge, the council was to allocate the suit property free of charge. He disclosed that during a demarcation exercise, the plaintiff was not represented, but he knew that Rashid was assigned a plot within the area. He also stated that after allocation, they did not fence off the suit property but placed some beacons. When asked about a letter dated August 18, 2014, in which the plaintiff sought permission to build a new fence, the witness stated he was sure they had not erected any fence on the suit property, and even if another fence existed, he did not know who put it up. He added that they had never developed the land due to a lack of ownership documents. In response to questions from Mrs. Shikanda, learned defense counsel for the 2nd defendant, PW1, said he did not recall accepting the letter of offer dated February 26, 2018 (P. exh22) in writing. Although the plaintiff had made the payments mentioned in the letter of offer, he did not have receipts to support this. He also noted that the 2nd defendant had annexed half an acre of the suit property, but again admitted he lacked documentary evidence to support this. Referring to P. exh2, he said he did not know if the minutes were ever confirmed. It was also his testimony that they had sent demand letters to the 2nd defendant, but these were not before the court. In response to questions from Mr. Amakobe, learned defense counsel for the 4th defendant, the witness said the church does not own Plot No. 112, which is different from the suit property, and that the National Land Commission had approved the matter for court proceedings. During re-examination, the witness reaffirmed the plaintiff''s claim and added that they had issued demand letters to all defendants. He also revealed that the second defendant had complained to NLC about the matter.
10. PW2; Dennis Maleveka, a land surveyor, produced a survey report based on an exercise conducted in 2018, which he submitted in 2019 (P. exh20). He stated that he was guided by a Physical Development Plan and an allotment letter issued to the plaintiff. He also testified that when preparing his report, he did not have a plot number for the suit property; the number mentioned in his report is the PDP reference number. On the ground, he observed that the suit property measured 1.33 hectares. The report aimed to map out the suit property and assist the Director of Survey in taking further action. Additionally, he stated that the shape of the suit property shown in the survey report and the PDP differs, and that the titling process had not yet been completed.
11. During cross-examination, he stated that he is a private surveyor hired by the church and that he couldn''t remember the names of its representatives during the exercise. He also mentioned that it was necessary to invite others with parcels of land bordering the exercise to participate. He insisted that, when identifying the boundaries of the suit property, he was guided by the plaintiff, the PDP, and the allotment letter. He also said there were no beacons on the ground during his visit. However, he denied relying solely on the plaintiff''s information to identify the boundaries. He added that Physical Planners prepare PDPs. In re-examination, he stated that the shape of the suit property, as shown on the PDP and his report, differs due to developments on the ground.
12. DW1; Ishmael Rashid Hassan, the third defendant, adopted his witness statement dated August 16, 2018, as his main evidence. The statement indicates that he owns Plot No. 112, which he bought from Johnstone Charo Mweni, and that this property is separate from the suit property. He also states that he knows the first defendant owns Plot No. HSE/MKI/C1/97, which is unrelated to the suit property. In cross-examination, he testified that he only knows of the suit property on paper. He further revealed that he inherited Plot No. 112 from his father. He added that his neighbors are the first and second defendants. Additionally, he disclosed that part of Plot No. 112 was sold to the fourth defendant and that he was unaware of any claim by the church before the sale. It was also his testimony that he did not receive the demand letter dated January 10, 2018, before selling the land, and that the letter was served on the first defendant, who resides on the land. He further stated that the second defendant has been his neighbor since 1990.
13. DW2; William Yawa Chimega, the first defendant, adopted his witness statement dated June 14, 2016, as his main evidence and submitted the listed documents, including a letter of allotment for Plot No. HSE/MKI/C1/97 in his favor, marked as D. exhl-11. In cross-examination, he added that he purchased a 50ft by 100ft plot from Plot No. 112, which borders Plot No. 97. He also explained that the boundaries of their land were verified by a surveyor hired by an organization commissioned by the World Bank to upgrade the area. Finally, he testified that his land does not border the land claimed by the plaintiff.
14. DW3; Joyce Kombe, a retired senior chief for Mariakani, also adopted her witness statement filed on August 16, 2019, in which she denounces the plaintiff''s claim to the suit property and states that the attempts to alienate the land were initiated by one Awadh with the intention of grabbing the land for himself through the church. One of the rightful owners, the 2nd defendant, learned of the scheme and complained to the area chief. During a meeting called to discuss the matter, the church failed to produce ownership documents. In cross-examination, she stated that she was not involved in the allocation of plots but in arbitrating ownership disputes and advising residents on procedures for addressing grievances related to plot allocations.
15. DW4; Chuhi Ngala also adopted his witness statement dated June 14, 2019, which states that he used to work for a man named Awadh, a former councilor, who devised a scheme to allocate a parcel of land to the plaintiff illegally. However, the land belonged to others, including the 2nd defendant. Later, residents who possessed ownership documents had their plots surveyed and assigned numbers through an exercise sponsored by the World Bank. The plaintiff, who lacked ownership documents, did not receive a number. During cross-examination, he maintained that he used to attend some of the council''s meetings that handled plot allotment. He also testified that he knew the location of the plaintiff''s land but not its size; he said it is larger than Chimenga''s but smaller than Rashid''s land.
16. DW5; Kombo Charo adopted his witness statement dated June 14, 2019, as his evidence in chief. The statement indicates that he is the Chairman of the Kenya Informal Settlement Project (KISP) for the Njoro area in Mariakani and that he was aware that former County Council Chairman Awadh attempted to illegally allocate a plot to the plaintiff so that he could eventually take possession of it. During the survey, Rashid proved that he owned his land, which he inherited from his father. He had it surveyed in his name and received a plot number. In cross-examination, he stated that the disputed parcels were not assigned plot numbers and were left out, including the plot owned by the 2nd defendant. He also said he was not involved in the county council''s plot allotment process and was unaware that the council had issued plot numbers to Chimenga and Rashid.
17. During re-examination, he stated they did not survey or assign a plot number to the 2nd defendant''s land because he and the plaintiff were in a dispute over ownership, and the second defendant opposed any discussions on the matter.
18. DW6; George Gogwe, the 3rd defendant, adopted his witness statement dated June 6, 2018. The statement indicates that he was the first person to settle on a piece of land measuring about 2.5 acres in 1975, remaining there until sometime in the 1980s when the plaintiff began claiming ownership. It is also his evidence that the plaintiff has hindered his plans to build permanent structures on his land and that he is unaware of the documents supporting the plaintiff''s alleged ownership. He further states that his attempts to resolve the issue through the NLC were unsuccessful because the plaintiff did not cooperate.
19. During cross-examination, he said that he has lived on the land continuously and that Chimenga is one of his neighbors.
20. DW7; Kitsao Nzioka, through a statement dated June 8, 2018, sought to corroborate DW6’s testimony and added that he started seeing the 2nd defendant on the land in 1971. He acknowledged that disputes over the land’s ownership have occurred.
21. DW8; Saumu Chuphy, the 4th defendant, adopted her statement dated October 25, 2021, as her primary evidence. The statement states that she bought a portion of land from Ishmael Rashid (the 1st defendant), identified as Plot No. 112, which is different from the suit property. She presented her documents filed under the list of documents dated October 25, 2021, as D.exh. 12 and 15.
22. During cross-examination, she said she verified that the land belonged to Rashid before buying and that she was shown a demand notice for rates issued by the county council in Rashid’s name, along with an allotment letter. She also stated that she was unaware of any dispute before purchasing the land, even though a demand letter had been sent to Rashid three days before the sale. She added that she bought half an acre, as agreed with Rashid.
23. After outlining the issues for determination, the learned trial magistrate summarized the questions to decide whether the plaintiff demonstrated beneficial ownership of the suit property and whether they possessed the necessary ownership documents. He also examined whether the proper allocation procedure was followed to justify the plaintiff''s requested orders. The main issue in this appeal was whether the appellant could prove ownership of the suit property based on documents in their possession relating to an alleged allocation of unsurveyed public land.
24. The Supreme Court clarified in Torino Enterprises Limited v Attorney General [2023] KESC 79 (KLR) that letters of allotment are merely invitations to treat, not actual titles. To establish valid ownership, an allottee must meet the conditions specified in the allotment letter and register the land in accordance with the law. Only registration grants a transferable title, and many parcels issued through allotments still lack registered titles. Some rely on allotment letters as proof of ownership when purchasing property, but if they do not meet the conditions or register, the property remains public land. To convert an allotment letter into a title, one must accept the offer, pay the applicable fees, survey the land, and obtain the necessary documents.
25. Delving into these issues in paragraph 10 of his judgment, the learned trial magistrate made the following findings:
” The plaintiff in his plaint at paragraph 3 pleaded that the Urban Council Mariakani allocated it Plot No. 131/KLF/2005/1, now County Government of Kilifi, on 21/6/1993.
First and foremost, during the testimony of Pw2, it emerged and it is corroborated by some of the documents on record including the letter of Allotment dated 26th February 2018 (P.exh 20) that Number 131/KLF/2005/1 does not refer any particular plot. It is a reference number for a Part Development Plan for the area within which the suit property is located.
Secondly, the plaintiff''s witness did give and or produce any credible documentary evidence to show that indeed the suit property was so allocated to the plaintiff on the alleged date. The plaintiff appeared to rely on an extract of council minutes dated 21st June 1993, but even if it were true that a resolution had been made on that date to allocate any parcel of land to the plaintiff, there is no evidence that the same was followed with an issuance of a letter of allotment by the Council the same date and or soon thereafter. Actually, in cross-examination Pw1 admitted he had not produced the full minutes of the Council to shed light on the subject matter more so noting that the actual location of the land purportedly allocated during that meeting is not given in the extract minute produced in court. Further to this it is also worth of note that whereas the minute talks of a 5-acre land, Pwl testified that they had been allocated 4.5 acres. The size further differs with what was confirmed to be the actual size on the ground by Pw2.
In addition to the foregoing, as submitted by the defence counsel for the 4th defendant, Pwl did not demonstrate that the prerequisites to a lawful allocation of plots within trust land and or government land had been followed in making the alleged allocation, in particular section 10 of the Trust Lands Act.”
26. Citing statutory requirements regarding how the allocated public land is allocated, the trial magistrate believed that, whether this land was allocated in 1993 by the defunct Mariakani Urban Council or in 2018 by the NLC, the proper procedure was not followed by the plaintiff.
27. Notably, on pages 14 and 15 of the judgment, the trial magistrate stated:
“In addition to this, the plaintiff did not show that it complied even with a single condition of the conditions set out in the said letter of Allotment. Indeed, in cross examination its witness admitted that he had no evidence that the plaintiff accepted the allotment yet the letter required acceptance in writing of the conditions set out therein.
In the case of Mbau Saw Milis Ltd v Attorney General for and on behalf of the Commissioner of Lands, & 2 others [2014] eKLR, it was stated as follows:
"I have considered the evidence on record and the submissions of the parties and do find that a letter of allotment was issued to Mr. Joseph K. Mugambi on 21/10/1971 with a condition to accept the offer within 30 days. He did not do so, and thereafter the offer lapsed 30 days after it was made in accordance with the allotment letter. Having failed to accept the offer as stipulated in the letter of allotment, Mr. J. K. Mugambi did not acquire interest in the unsurveyed lorry depot and therefore had no interest to transfer to the plaintiff. This court holds that a letter of allotment does not confer any property rights to a person unless there is acceptance and payment of the stand premium and ground rent. In the letter dated 17/6/1988 which was written about 17 years after the allotment letter was issued, the Commissioner of Lands confirmed that the plot was allocated to Joseph M. Mugambi in 1971 for lorry depot. However, the plot had neither been paid for nor an acceptance of the offer in the allotment letter made. The implication of this letter and therefore the offer had lapsed. The offer having lapsed. The allottee Mr.Joseph Mugambi did not have any interest to transfer to the plaintiff and therefore all transactions between the allottee and the plaintiff were a nullity."
Thus, even if I had found the Letter of Allotment dated 26th February 2018 to have been validly issued, then the same would have lapsed upon expiry of 90 days of postmark for want of acceptance and payment of the requisite charges specified thereon. In the upshot I make a finding that the plaintiff has not proved on a balance of probabilities that she is the bonafide owner of the suit property. “
28. Based on the evidence on record and since the trial court was determining ownership interests of unsurveyed public land and the relevant procedure for allocation of public land, I find that the trial magistrate properly considered the evidence and the applicable law, and that this court will not disturb the findings of the trial court.
29. It follows that, because the plaintiff could not prove ownership in the trial court, the other reliefs sought in the plaint could not succeed.
30. In a nutshell, the current appeal has no merit. It is hereby dismissed with costs.
Dated, signed, and delivered virtually at Malindi on this 22nd day of October, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Mkomba for the Appellant
Mr. Mwanzia for the 2nd Respondent
Mr. Amakobe for the 4th Respondent
Happy: Court Assistant
'