(Being an appeal from the judgment and decree of Hon. E. A. Obina, Senior Principal Magistrate, delivered on 5th March 2024 in Kisumu Chief Magistrate’s Court Environment and Land Case No. E022 of 2021)
1. This is a first appeal from the judgment and decree of Hon. E. A. Obina, Senior Principal Magistrate, delivered on 5th March 2024 in Kisumu Chief Magistrate’s Court Environment and Land Case No. E022 of 2021, by which the learned trial magistrate dismissed the appellant’s suit for want of proof and made no order as to costs.
2. The subject matter of the dispute is a parcel of land described in the pleadings as Kisumu/Municipality Plot No. 244 situate at Mamboleo within Kisumu County, and described on the face of the appellant’s principal exhibit as “Uns. Residential Plot No. 244, Kisumu” (“the suit property”). It is common ground that the suit property is unsurveyed and that no certificate of title, grant or deed has ever issued in respect of it to either party.
3. The appellant sued in a representative capacity as the legal representative and administratrix ad litem of the estate of Sylvester Ouma Osage alias Agoro (deceased), her late father, pursuant to a limited grant of letters of administration ad litem issued on 22nd December 2020 by the Chief Magistrate’s Court at Kisumu in Succession Cause No. E349 of 2020.
The case before the trial court
The Appellant’s case
4. By a plaint filed in the trial court, the appellant pleaded that the deceased was at all material times the registered owner of the suit property and was in occupation of the same, having erected residential structures thereon until his demise on 10th November 2020.
5. It was pleaded that by a letter of allotment dated 18th August 1994 the deceased acquired and was granted ownership of the suit property, for a consideration, from the then Municipal Council of Kisumu.
6. The appellant further pleaded that the defunct Municipal Council of Kisumu, without any colour of right and without notice to the affected land owners, revoked the initial titles and allotments it had issued, including that of the deceased, and re-issued them to third parties; that the deceased and other affected owners lodged a complaint with the National Land Commission in 2014; and that the Commission, by a gazette notice dated 17th July 2017, revoked all the titles so re-issued and reverted ownership of the affected parcels, including the suit property, to the initial owners.
7. It was pleaded that in the year 2020, after the demise of the deceased, the respondent trespassed upon the suit property and erected a temporary structure thereon without consent, with the intention of disinheriting the beneficiaries of the estate, and that he had since restrained the beneficiaries from the peaceful enjoyment of the property.
8. The reliefs sought were an order of eviction, a permanent injunction restraining the respondent, whether by himself or through his agents, servants or any person claiming under him, from entering upon, constructing on, occupying, cultivating, alienating or otherwise interfering with the suit property, and costs.
The Respondent’s case
9. The respondent entered appearance and filed a statement of defence on 30th March 2021. He denied the averments in the plaint, challenged and joined issue with the legal ownership and proprietorship of the suit property, and pleaded that he was the sole owner of the same. He asserted that it was the appellant who had violated his proprietary rights by attempting to interfere with his interest, that he had been in occupation of the property, and he gave notice of an intention to institute originating summons proceedings founded on adverse possession.
10. In his recorded statement, the respondent stated that the suit property is his ancestral land; that he was born thereon in 1993; that his parents, Vitalis Ayoo Adoyo and Prisca Akinyi Oyoo, and his siblings are all deceased and buried on the land; that the area he occupies measures approximately 0.6 hectares and was left to his parents by his grandparents, Crestina Awuor Adoyo and Adoyo Agonda Tula; that by reason of patrilineal descent he has been in occupation for over 30 years and, through his lineage, for over 50 years; and that he is a member of the Kikako Welfare Association, which has been pursuing the rights of the indigenous inhabitants of the area. He pleaded that the appellant’s claim was malicious and founded upon falsified documents.
The evidence adduced
11. The matter proceeded to hearing. The appellant testified as PW1 and adopted her statement dated 18th February 2021 as her evidence in chief. She produced documents Nos. 1, 2, 3, 4, 5 and 8 in her list as P. Exhibits 1, 2(a), 2(b), 2(c), 2(d) and 4 respectively, while documents Nos. 6, 7 and 9 were marked for identification as PMFI 3(a), 3(b) and 5. The exhibits so admitted comprised the deceased’s national identity card, the burial permit, the death certificate, a letter from the area chief dated 3rd December 2020, the limited grant of letters of administration ad litem, and the Kenya Gazette carrying the determination of the National Land Commission.
12. Under cross-examination PW1 stated that the suit property belonged to her father; that she had not produced receipts for payment of rates for the year; that her father had paid Kshs. 67,160/= and that she could make the receipt available if given time; and that the respondent had trespassed upon the property in 2021.
13. PW2, Charles Owino Otieno, adopted his statement and testified that he had been engaged by the deceased in or about 2008 as caretaker of the suit property and had served in that capacity for over ten years. Of critical significance, PW2 was confronted in cross-examination with a document appearing at page 22 of the respondent’s bundle. He testified that the letter was not his, that the signature appearing on it was forged, though the telephone number and address were his, and that the rates payment request at page 23 related to plot 127 and not to plot 244. He further conceded that he had not been issued with a title deed and that all he held was a letter of allotment.
14. The appellant’s counsel sought and obtained leave to file a supplementary list of documents and a further list of witnesses and to have PW1 recalled. On the appointed date an extension was sought on the ground that the witnesses had not been traced. Nothing further was filed. On 9th March 2023 the appellant’s counsel closed the appellant’s case and the same was marked as closed.
15. The respondent testified as DW1 on 17th August 2023 before Hon. E. A. Obina (SPM), the part-heard matter having been reallocated to him by the Chief Magistrate on 19th May 2023 with directions that it proceed from the point it had reached. DW1 adopted his statement and relied on Defence Exhibits 1 to 15. Under cross-examination he stated that the land is ancestral, that he was born there, that the land bears no number and has not been subdivided, that he holds no letter of allotment, that he has no evidence of payment of rates in respect of plot 244, that plot No. 127 mentioned in his documents is in the name of Charles, and that Charles is a witness for the appellant.
16. Among the documents produced by the respondent were a certificate of registration of the Kikako Welfare Association; Gazette Notice No. 3400 of 19th November 1976; Gazette Notice No. 882 of 1st March 2019; Kenya Gazette Notice No. 5375 of 6th May 2022 appointing a task force on the implementation of the historical land injustices determination for the Kikako Welfare Association and the Kolwa Development Association; a letter from the National Land Commission dated 9th June 2022 requesting the suspension of active court cases whose subject matter involves the extended areas of Kisumu Municipality in Kanyakwar, South Kajulu and Kolwa; a letter from the respondent’s advocates dated 9th November 2021 to the National Land Commission seeking authentication of the appellant’s letter of allotment; and the reply of the County Coordinator, National Land Commission, Kisumu County dated 10th December 2021.
17. The learned trial magistrate framed three issues for determination, namely: what the circumstances surrounding the suit land were; whether the appellant had proved ownership of the suit land to the required standard of a balance of probabilities; and what order ought to be made as to costs.
18. On the question of capacity, the learned trial magistrate held that the issue was not in contention, the limited grant of letters of administration ad litem having been exhibited, and that the appellant was accordingly clothed with capacity to sue.
19. On the merits, the learned trial magistrate found that there was no evidence that the offer of allotment had been accepted; that there was no evidence of payment of the sum of Kshs. 67,160/=; that the appellant had not exhibited a rates clearance certificate; that an allotment letter comes with conditions and it had not been demonstrated that those conditions had been met; that a letter had been placed before the court to the effect that the purported allotment letter was fraudulent and did not originate from the relevant office; and that the parcels of land in the area are the subject of a task force appointed by the Chairman of the National Land Commission by gazette notice, whose report and recommendations the court had not seen.
20. The learned trial magistrate concluded that the appellant had failed to prove her case against the respondent on a balance of probabilities and dismissed the suit. Observing that neither party could be punished for what he described as the confusion brought about by the government, he made no order as to costs and directed each party to bear their own costs, advising the parties to follow up on the recommendations of the task force appointed by the National Land Commission in order to put the matter to rest.
The Appeal
21. The appellant was aggrieved by that decision. The record discloses that the appeal was preceded by a notice of motion dated 19th September 2024, supported by the appellant’s affidavit of even date, seeking leave to appeal out of time and preservatory orders. The ruling on that application is not contained in the record placed before me. The appeal having been admitted and registered as ELC Land Appeal No. E106 of 2024, and the record of appeal having been settled and filed on 1st October 2025 by M/s Ondego Garo Advocates, I proceed on the footing that leave to appeal out of time was duly granted.
22. I should observe at the outset that the record contains two versions of the memorandum of appeal, the first bearing seven grounds and the second bearing eight. The two are substantially identical in substance, differing chiefly in the ordering and phrasing of the grounds and in the description of the trial magistrate. No point was taken on the discrepancy and I have treated the memorandum of appeal reproduced at the head of the record of appeal as the operative pleading, while satisfying myself that no ground appearing in the alternative version has been left unconsidered.
23. Shorn of repetition, the grounds of appeal come to four complaints, namely: that the learned trial magistrate treated the evidence and the submissions superficially and thereby arrived at a wrong conclusion; that he erred in finding that the appellant had not proved her case to the required standard and in failing to find that ownership of the suit property had been established; that he erred in failing to give effect to the determination of the National Land Commission dated 17th July 2017; and that he erred in failing to hold that the respondent had tendered no documentary evidence capable of rebutting the appellant’s proof of ownership.
24. The appellant prays that the appeal be allowed with costs and that the judgment of the trial court be set aside.
The state of the record of appeal
25. Before turning to the merits, I am obliged to record an observation about the state of the record placed before this court, both because it bears upon the manner in which I have discharged my duty as a first appellate court and because it is a matter to which practitioners in this station ought to give closer attention.
26. The typed proceedings of the trial court are internally paginated. Of those proceedings, the record of appeal reproduces pages 1, 3, 6, 8, 10, 13, 14, 16, 18, 20 and 21 only. Pages 2, 4, 5, 7, 9, 11, 12, 15, 17 and 19 are missing, as is everything appearing after page 21. The practical consequence is that the whole of the appellant’s evidence in chief as PW1, and the opening portion of her cross-examination, are absent from the record; so too are the closing of the defence case, the directions given on the filing of written submissions, and the entry fixing the judgment for delivery.
27. It is the duty of an appellant to prepare, settle and file a record of appeal that is complete in all material respects. A first appellate court is enjoined to re-evaluate the whole of the evidence tendered at the trial, and it can hardly discharge that duty upon a record that is materially truncated. Where an appellant places before the appellate court an incomplete record, the appellant can scarcely be heard to complain that the evidence has not been fully re-assessed.
28. I have anxiously considered whether the appropriate course is to strike out the appeal, or to defer judgment pending the supply of the complete typed proceedings. I have concluded that neither course is necessary in this particular case. The reason is that the determination of this appeal turns upon documentary evidence which is complete upon the record and which is independently dispositive: the letter of allotment relied upon by the appellant, the twin allotment letter produced by the respondent, the correspondence with the National Land Commission, and the gazetted determination of the Commission. The outcome of the appeal would be the same whatever the missing pages of the oral evidence contain, for the appellant’s difficulty is not one of testimony but one of documentary proof. Since the omission cannot conceivably operate to the appellant’s prejudice, and since it is the appellant who compiled the record, no injustice is occasioned by proceeding.
29. I nonetheless record the deficiency expressly, first so that the position is preserved, and secondly so that it may serve as a caution.
30. When this appeal came up before me, directions were given that the appeal be canvassed by way of written submissions and both parties were granted time within which to file and exchange the same. Notwithstanding the time so allowed, neither the appellant nor the respondent filed any written submissions. The court has waited, and the record remains bare of any submissions on either side.
31. The failure of the parties to file submissions does not divest this court of its jurisdiction, nor does it relieve it of its obligation to determine the appeal on its merits. The reason is that written submissions, however helpful, are not evidence. They are the advocate’s argument upon the evidence and the law. They cannot supply what the evidence lacks, nor can they detract from what the evidence establishes, and their absence cannot convert a meritorious appeal into an unmeritorious one or the converse.
32. The position is settled. In Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR the Court of Appeal reiterated that submissions cannot take the place of evidence, being no more than the parties’ own reasoning upon material already properly before the court. To the same effect is Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, in which the Court of Appeal held that submissions are aids to the court and are not a substitute for pleadings or for evidence, and that a court determines a matter upon the pleadings and the evidence rather than upon the eloquence of counsel.
33. It follows that where parties are afforded an opportunity to file submissions and decline or neglect to take it, the court must nevertheless proceed to determine the dispute upon the pleadings, the evidence and the applicable law. To do otherwise would be to abdicate the judicial function and to visit upon the litigants the consequences of their advocates’ inaction. Article 159(2)(b) of the Constitution requires that justice shall not be delayed, and section 1A of the Civil Procedure Act, Cap. 21, obliges this court to give effect to the overriding objective of the just, expeditious, proportionate and affordable resolution of disputes.
34. I have therefore proceeded to determine this appeal on the merits, upon the record as filed, and without the assistance of submissions from either side. I have been careful, in doing so, to consider each ground of appeal on the footing most favourable to the party who would have advanced it, so that neither party suffers by reason of the silence of counsel.
The duty of the first Appellate Court
35. This being a first appeal, the duty of this court is well settled. It is to reconsider the evidence tendered before the trial court, to evaluate it afresh and to draw its own conclusions, bearing always in mind that it neither saw nor heard the witnesses and making due allowance in that respect.
36. The classic statement of the principle is that of the Court of Appeal for East Africa in Selle & another v Associated Motor Boat Company Limited & others [1968] EA 123, where it was held that an appeal from the High Court is by way of retrial and the appellate court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he failed to take account of particular circumstances or probabilities or that the impression of the demeanour of a witness is inconsistent with the evidence generally. See also Peters v Sunday Post Limited [1958] EA 424 and Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR.
37. That duty is, however, tempered by a corresponding restraint. An appellate court will not lightly disturb findings of fact made by the trial court which had the advantage of seeing and hearing the witnesses. It will interfere only where it is shown that the trial court acted on no evidence, or on a misapprehension of the evidence, or that it demonstrably acted on wrong principles in reaching the findings it did: Mwangi v Wambugu [1984] KLR 453.
38. I have approached this appeal in that spirit, and have re-read and re-assessed the whole of the material contained in the record.
Analysis and Determination
39. Having considered the pleadings, the evidence, the judgment appealed from and the grounds of appeal, the issues that fall for determination are these:
(i) Whether the appellant proved that the deceased held a proprietary interest in the suit property capable of devolving to his estate;
(ii) Whether the determination of the National Land Commission dated 17th July 2017 established the appellant’s claim to the suit property;
(iii) Whether the trial court erred in its treatment of the allegation that the appellant’s letter of allotment was not genuine;
(iv) Whether the appellant established an entitlement to an order of eviction and a permanent injunction;
(v) Whether the learned trial magistrate treated the evidence and submissions superficially or otherwise misdirected himself; and
(vi) What orders ought to issue, and who should bear the costs.
(i) Whether the appellant proved a proprietary interest in the suit property
40. The burden of proof lay upon the appellant. Section 107(1) of the Evidence Act, Cap. 80, provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Section 108 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side, and section 109 provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. The standard is the ordinary civil standard of a balance of probabilities.
41. The appellant pleaded, at paragraph 4 of the plaint, that the deceased was “the registered owner of property title number Kisumu/Municipality Plot No. 244” . That is a plea of registered proprietorship. It was not proved, and indeed it could not have been proved. No certificate of title, no grant, no deed, no certificate of official search and no extract of the register was tendered. On the appellant’s own evidence the suit property is an unsurveyed plot in respect of which no title has ever issued. There is accordingly a fundamental disconformity between what was pleaded and what was proved, and a party is bound by his pleadings.
42. What the appellant in truth relied upon was the letter of allotment, Ref. No. 30973/L111, addressed to Sylvester Ouma Osage of P.O. Box 39, Sondu, in respect of “Uns. Residential Plot No. 244, Kisumu”. It is therefore necessary to consider what, in law, such a document achieves.
43. A letter of allotment is not a document of title. It is an offer. It is an invitation by the allotting authority to the allottee to take a grant of the land described, upon the terms and conditions set out in the letter, and it becomes capable of ripening into an interest in land only upon acceptance of the offer in the manner and within the time stipulated and upon payment of the stand premium and the other charges prescribed. Until then it confers no interest, legal or equitable, in the land. If the conditions are not complied with, the offer lapses and the allottee is left with nothing.
44. That principle has been consistently applied. In Dr. Joseph N. K. arap Ng’ok v Justice Moijo Ole Keiwua & 4 others , Civil Application No. Nai. 60 of 1997, the Court of Appeal held that a letter of allotment does not of itself confer any interest in the land to which it relates. In Gladys Wanjiru Ngacha v Teresa Chepsaat & 4 others [2013] eKLR the court held that a letter of allotment is a mere offer which, if not accepted in accordance with its terms and within the time prescribed, lapses and confers nothing upon the allottee. See also Benja Properties Limited v Syedna Mohammed Burhannudin Sahed & 4 others [2015] eKLR.
45. The letter of allotment relied upon by the appellant is explicit upon its face. It offers a grant of the plot “subject to your formal written acceptance of the following conditions and to the payment of the charges as prescribed hereunder” . It states a term of 99 years, a stand premium, an annual rent of Kshs. 1,320/=, and a schedule of charges yielding a total of Kshs. 67,160/=. It requires that acceptance of the attached conditions be received “together with banker’s cheque for the amount as set out below within thirty (30) days of the postmark” . It further records that the allotment is subject to the provisions of the Government Lands Act, Cap. 280 (now repealed), and that title would issue under the Registration of Titles Act, Cap. 281, or the Registered Land Act, Cap. 300 (both now repealed). Special conditions are stated to be attached.
46. Upon a careful re-evaluation of the record I am satisfied, as the learned trial magistrate was, that not one of those conditions was proved to have been fulfilled. There is no evidence whatsoever of any formal written acceptance of the offer. There is no receipt, no banker’s cheque, no counterfoil, no bank statement and no ledger entry evidencing payment of the Kshs. 67,160/= or of any part of it. PW1 said in terms that she could produce the receipt if given time; she was granted leave to file a supplementary list of documents and to be recalled; the leave was extended; and in the event nothing was filed and the appellant’s case was closed. The special conditions said to be attached to the letter were never produced. Thirty-one years have elapsed since the date borne by the letter and no grant has issued.
47. A letter of allotment in respect of which no acceptance and no payment is proved is, in law, a spent offer. It vested no interest in the deceased. There was accordingly no proprietary interest in the suit property capable of forming part of his estate, and none capable of devolving upon the appellant as his personal representative. This ground of appeal must fail.
48. I would add that the appellant’s reliance upon the payment of land rates does not assist her. A demand for rates is not a document of title, and payment of rates by an occupant is not proof of proprietorship. In any event, the appellant produced no rates clearance certificate, and PW1 conceded in cross-examination that she had not produced receipts of payment for the current year. The land rates payment request that was produced was marked for identification only and was never formally admitted in evidence.
(ii) The determination of the National Land Commission dated 17th July 2017
49. The fifth ground of appeal, and much of the appellant’s case below, rested upon the proposition that the National Land Commission had, by its gazetted determination, pronounced in favour of the deceased and against the community claimants, and that the trial court erred in not giving effect to it.
50. I have read the gazette notice produced as P. Exhibit 4 with care. It records the Commission’s determination in respect of historical land injustice claims touching the extended areas of Kisumu Municipality. In summary, the Commission upheld the allocations made by the Commissioner of Lands; found the allocations made by the predecessor of the County Government of Kisumu to be illegal; revoked the allocations made by the Municipal Council of Kisumu; determined that the Kanyakwar Kogola Clan, the Kikako Welfare Association, the Kajulu Kithimo Welfare Association and the Kokat Ramba Community Development Group had no claim to the land, though they might pursue the question of historical injustice; and ordered the individuals or groups who had invaded the Kanyakwar lands to vacate.
51. Read in isolation, those findings appear to support the appellant. But a gazetted determination of this character operates upon identified parcels and identified persons. The gazette notice is accompanied by a schedule which names the claimants, describes the parcels concerned and states the determination made in respect of each. Neither the name of the deceased, Sylvester Ouma Osage alias Agoro, nor the suit property, Plot No. 244, appears anywhere in the schedule to the gazette notice as reproduced in the record.
52. That is fatal to this limb of the appeal. A general recital that the Commission upholds allocations made by the Commissioner of Lands cannot avail an allottee who has not proved that any allocation was ever completed in his favour. The determination confirms a class of allocations; it does not create one. The appellant’s difficulty is anterior to the gazette notice: she has not shown that the deceased ever perfected an allotment so as to bring himself within the class of persons whose allocations were upheld.
53. There is a further and independent difficulty. The Commission did not treat the matter as concluded by the 2017 determination. By Gazette Notice No. 5375 dated 6th May 2022, and further to Gazette Notice Vol. CXXI No. 27 dated 1st March 2019, the Chairman of the National Land Commission appointed a task force on the implementation of the historical land injustices determination for the Kikako Welfare Association and the Kolwa Development Association, under references NLC/HLI/103 and 127/2017. By a letter dated 9th June 2022 addressed to the Deputy Registrar of this court, the Commission requested the suspension of active court cases whose subject matter involves the extended areas of the Kisumu Municipality in Kanyakwar, South Kajulu and Kolwa, pending the work of that task force. The report and recommendations of the task force were not placed before the trial court and have not been placed before me.
54. The learned trial magistrate was therefore entirely correct to observe that the land parcels in this area remain the subject of an ongoing statutory process before the National Land Commission, and to decline to pronounce upon a question that Parliament has, by Article 67(2)(e) of the Constitution and sections 6 and 15 of the National Land Commission Act, 2012, committed in the first instance to that Commission. His advice to the parties to follow up the recommendations of the task force was sound and I endorse it.
(iii) The allegation that the letter of allotment was not genuine
55. The respondent’s case included a positive allegation that the appellant’s letter of allotment was a forgery. In support of it he produced, as Defence Exhibit 10(a), a letter dated 10th December 2021 from the County Coordinator, National Land Commission, Kisumu County, written in reply to the respondent’s advocates’ letter of 9th November 2021, stating that the Director of Land Administration in the Ministry of Lands and Physical Planning had confirmed that the subject letter of allotment did not emanate from that office.
56. The appellant is on firm ground in submitting, as she did before the trial court, that an allegation of fraud must be specifically pleaded and strictly proved, and that the standard, while short of the criminal standard, is higher than that which obtains in an ordinary civil case: Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR; Kinyanjui Kamau v George Kamau [2015] eKLR; Ndolo v Ndolo [2008] 1 KLR (G&F) 742. She is also right that the maker of the letter of 10th December 2021, Mr. Otieno Appida, was listed as
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1. This is a first appeal from the judgment and decree of Hon. E. A. Obina, Senior Principal Magistrate, delivered on 5th March 2024 in Kisumu Chief Magistrate’s Court Environment and Land Case No. E022 of 2021, by which the learned trial magistrate dismissed the appellant’s suit for want of proof and made no order as to costs.
2. The subject matter of the dispute is a parcel of land described in the pleadings as Kisumu/Municipality Plot No. 244 situate at Mamboleo within Kisumu County, and described on the face of the appellant’s principal exhibit as “Uns. Residential Plot No. 244, Kisumu” (“the suit property”). It is common ground that the suit property is unsurveyed and that no certificate of title, grant or deed has ever issued in respect of it to either party.
3. The appellant sued in a representative capacity as the legal representative and administratrix ad litem of the estate of Sylvester Ouma Osage alias Agoro (deceased), her late father, pursuant to a limited grant of letters of administration ad litem issued on 22nd December 2020 by the Chief Magistrate’s Court at Kisumu in Succession Cause No. E349 of 2020.
The case before the trial court
The Appellant’s case
4. By a plaint filed in the trial court, the appellant pleaded that the deceased was at all material times the registered owner of the suit property and was in occupation of the same, having erected residential structures thereon until his demise on 10th November 2020.
5. It was pleaded that by a letter of allotment dated 18th August 1994 the deceased acquired and was granted ownership of the suit property, for a consideration, from the then Municipal Council of Kisumu.
6. The appellant further pleaded that the defunct Municipal Council of Kisumu, without any colour of right and without notice to the affected land owners, revoked the initial titles and allotments it had issued, including that of the deceased, and re-issued them to third parties; that the deceased and other affected owners lodged a complaint with the National Land Commission in 2014; and that the Commission, by a gazette notice dated 17th July 2017, revoked all the titles so re-issued and reverted ownership of the affected parcels, including the suit property, to the initial owners.
7. It was pleaded that in the year 2020, after the demise of the deceased, the respondent trespassed upon the suit property and erected a temporary structure thereon without consent, with the intention of disinheriting the beneficiaries of the estate, and that he had since restrained the beneficiaries from the peaceful enjoyment of the property.
8. The reliefs sought were an order of eviction, a permanent injunction restraining the respondent, whether by himself or through his agents, servants or any person claiming under him, from entering upon, constructing on, occupying, cultivating, alienating or otherwise interfering with the suit property, and costs.
The Respondent’s case
9. The respondent entered appearance and filed a statement of defence on 30th March 2021. He denied the averments in the plaint, challenged and joined issue with the legal ownership and proprietorship of the suit property, and pleaded that he was the sole owner of the same. He asserted that it was the appellant who had violated his proprietary rights by attempting to interfere with his interest, that he had been in occupation of the property, and he gave notice of an intention to institute originating summons proceedings founded on adverse possession.
10. In his recorded statement, the respondent stated that the suit property is his ancestral land; that he was born thereon in 1993; that his parents, Vitalis Ayoo Adoyo and Prisca Akinyi Oyoo, and his siblings are all deceased and buried on the land; that the area he occupies measures approximately 0.6 hectares and was left to his parents by his grandparents, Crestina Awuor Adoyo and Adoyo Agonda Tula; that by reason of patrilineal descent he has been in occupation for over 30 years and, through his lineage, for over 50 years; and that he is a member of the Kikako Welfare Association, which has been pursuing the rights of the indigenous inhabitants of the area. He pleaded that the appellant’s claim was malicious and founded upon falsified documents.
The evidence adduced
11. The matter proceeded to hearing. The appellant testified as PW1 and adopted her statement dated 18th February 2021 as her evidence in chief. She produced documents Nos. 1, 2, 3, 4, 5 and 8 in her list as P. Exhibits 1, 2(a), 2(b), 2(c), 2(d) and 4 respectively, while documents Nos. 6, 7 and 9 were marked for identification as PMFI 3(a), 3(b) and 5. The exhibits so admitted comprised the deceased’s national identity card, the burial permit, the death certificate, a letter from the area chief dated 3rd December 2020, the limited grant of letters of administration ad litem, and the Kenya Gazette carrying the determination of the National Land Commission.
12. Under cross-examination PW1 stated that the suit property belonged to her father; that she had not produced receipts for payment of rates for the year; that her father had paid Kshs. 67,160/= and that she could make the receipt available if given time; and that the respondent had trespassed upon the property in 2021.
13. PW2, Charles Owino Otieno, adopted his statement and testified that he had been engaged by the deceased in or about 2008 as caretaker of the suit property and had served in that capacity for over ten years. Of critical significance, PW2 was confronted in cross-examination with a document appearing at page 22 of the respondent’s bundle. He testified that the letter was not his, that the signature appearing on it was forged, though the telephone number and address were his, and that the rates payment request at page 23 related to plot 127 and not to plot 244. He further conceded that he had not been issued with a title deed and that all he held was a letter of allotment.
14. The appellant’s counsel sought and obtained leave to file a supplementary list of documents and a further list of witnesses and to have PW1 recalled. On the appointed date an extension was sought on the ground that the witnesses had not been traced. Nothing further was filed. On 9th March 2023 the appellant’s counsel closed the appellant’s case and the same was marked as closed.
15. The respondent testified as DW1 on 17th August 2023 before Hon. E. A. Obina (SPM), the part-heard matter having been reallocated to him by the Chief Magistrate on 19th May 2023 with directions that it proceed from the point it had reached. DW1 adopted his statement and relied on Defence Exhibits 1 to 15. Under cross-examination he stated that the land is ancestral, that he was born there, that the land bears no number and has not been subdivided, that he holds no letter of allotment, that he has no evidence of payment of rates in respect of plot 244, that plot No. 127 mentioned in his documents is in the name of Charles, and that Charles is a witness for the appellant.
16. Among the documents produced by the respondent were a certificate of registration of the Kikako Welfare Association; Gazette Notice No. 3400 of 19th November 1976; Gazette Notice No. 882 of 1st March 2019; Kenya Gazette Notice No. 5375 of 6th May 2022 appointing a task force on the implementation of the historical land injustices determination for the Kikako Welfare Association and the Kolwa Development Association; a letter from the National Land Commission dated 9th June 2022 requesting the suspension of active court cases whose subject matter involves the extended areas of Kisumu Municipality in Kanyakwar, South Kajulu and Kolwa; a letter from the respondent’s advocates dated 9th November 2021 to the National Land Commission seeking authentication of the appellant’s letter of allotment; and the reply of the County Coordinator, National Land Commission, Kisumu County dated 10th December 2021.
17. The learned trial magistrate framed three issues for determination, namely: what the circumstances surrounding the suit land were; whether the appellant had proved ownership of the suit land to the required standard of a balance of probabilities; and what order ought to be made as to costs.
18. On the question of capacity, the learned trial magistrate held that the issue was not in contention, the limited grant of letters of administration ad litem having been exhibited, and that the appellant was accordingly clothed with capacity to sue.
19. On the merits, the learned trial magistrate found that there was no evidence that the offer of allotment had been accepted; that there was no evidence of payment of the sum of Kshs. 67,160/=; that the appellant had not exhibited a rates clearance certificate; that an allotment letter comes with conditions and it had not been demonstrated that those conditions had been met; that a letter had been placed before the court to the effect that the purported allotment letter was fraudulent and did not originate from the relevant office; and that the parcels of land in the area are the subject of a task force appointed by the Chairman of the National Land Commission by gazette notice, whose report and recommendations the court had not seen.
20. The learned trial magistrate concluded that the appellant had failed to prove her case against the respondent on a balance of probabilities and dismissed the suit. Observing that neither party could be punished for what he described as the confusion brought about by the government, he made no order as to costs and directed each party to bear their own costs, advising the parties to follow up on the recommendations of the task force appointed by the National Land Commission in order to put the matter to rest.
The Appeal
21. The appellant was aggrieved by that decision. The record discloses that the appeal was preceded by a notice of motion dated 19th September 2024, supported by the appellant’s affidavit of even date, seeking leave to appeal out of time and preservatory orders. The ruling on that application is not contained in the record placed before me. The appeal having been admitted and registered as ELC Land Appeal No. E106 of 2024, and the record of appeal having been settled and filed on 1st October 2025 by M/s Ondego Garo Advocates, I proceed on the footing that leave to appeal out of time was duly granted.
22. I should observe at the outset that the record contains two versions of the memorandum of appeal, the first bearing seven grounds and the second bearing eight. The two are substantially identical in substance, differing chiefly in the ordering and phrasing of the grounds and in the description of the trial magistrate. No point was taken on the discrepancy and I have treated the memorandum of appeal reproduced at the head of the record of appeal as the operative pleading, while satisfying myself that no ground appearing in the alternative version has been left unconsidered.
23. Shorn of repetition, the grounds of appeal come to four complaints, namely: that the learned trial magistrate treated the evidence and the submissions superficially and thereby arrived at a wrong conclusion; that he erred in finding that the appellant had not proved her case to the required standard and in failing to find that ownership of the suit property had been established; that he erred in failing to give effect to the determination of the National Land Commission dated 17th July 2017; and that he erred in failing to hold that the respondent had tendered no documentary evidence capable of rebutting the appellant’s proof of ownership.
24. The appellant prays that the appeal be allowed with costs and that the judgment of the trial court be set aside.
The state of the record of appeal
25. Before turning to the merits, I am obliged to record an observation about the state of the record placed before this court, both because it bears upon the manner in which I have discharged my duty as a first appellate court and because it is a matter to which practitioners in this station ought to give closer attention.
26. The typed proceedings of the trial court are internally paginated. Of those proceedings, the record of appeal reproduces pages 1, 3, 6, 8, 10, 13, 14, 16, 18, 20 and 21 only. Pages 2, 4, 5, 7, 9, 11, 12, 15, 17 and 19 are missing, as is everything appearing after page 21. The practical consequence is that the whole of the appellant’s evidence in chief as PW1, and the opening portion of her cross-examination, are absent from the record; so too are the closing of the defence case, the directions given on the filing of written submissions, and the entry fixing the judgment for delivery.
27. It is the duty of an appellant to prepare, settle and file a record of appeal that is complete in all material respects. A first appellate court is enjoined to re-evaluate the whole of the evidence tendered at the trial, and it can hardly discharge that duty upon a record that is materially truncated. Where an appellant places before the appellate court an incomplete record, the appellant can scarcely be heard to complain that the evidence has not been fully re-assessed.
28. I have anxiously considered whether the appropriate course is to strike out the appeal, or to defer judgment pending the supply of the complete typed proceedings. I have concluded that neither course is necessary in this particular case. The reason is that the determination of this appeal turns upon documentary evidence which is complete upon the record and which is independently dispositive: the letter of allotment relied upon by the appellant, the twin allotment letter produced by the respondent, the correspondence with the National Land Commission, and the gazetted determination of the Commission. The outcome of the appeal would be the same whatever the missing pages of the oral evidence contain, for the appellant’s difficulty is not one of testimony but one of documentary proof. Since the omission cannot conceivably operate to the appellant’s prejudice, and since it is the appellant who compiled the record, no injustice is occasioned by proceeding.
29. I nonetheless record the deficiency expressly, first so that the position is preserved, and secondly so that it may serve as a caution.
30. When this appeal came up before me, directions were given that the appeal be canvassed by way of written submissions and both parties were granted time within which to file and exchange the same. Notwithstanding the time so allowed, neither the appellant nor the respondent filed any written submissions. The court has waited, and the record remains bare of any submissions on either side.
31. The failure of the parties to file submissions does not divest this court of its jurisdiction, nor does it relieve it of its obligation to determine the appeal on its merits. The reason is that written submissions, however helpful, are not evidence. They are the advocate’s argument upon the evidence and the law. They cannot supply what the evidence lacks, nor can they detract from what the evidence establishes, and their absence cannot convert a meritorious appeal into an unmeritorious one or the converse.
32. The position is settled. In Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR the Court of Appeal reiterated that submissions cannot take the place of evidence, being no more than the parties’ own reasoning upon material already properly before the court. To the same effect is Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, in which the Court of Appeal held that submissions are aids to the court and are not a substitute for pleadings or for evidence, and that a court determines a matter upon the pleadings and the evidence rather than upon the eloquence of counsel.
33. It follows that where parties are afforded an opportunity to file submissions and decline or neglect to take it, the court must nevertheless proceed to determine the dispute upon the pleadings, the evidence and the applicable law. To do otherwise would be to abdicate the judicial function and to visit upon the litigants the consequences of their advocates’ inaction. Article 159(2)(b) of the Constitution requires that justice shall not be delayed, and section 1A of the Civil Procedure Act, Cap. 21, obliges this court to give effect to the overriding objective of the just, expeditious, proportionate and affordable resolution of disputes.
34. I have therefore proceeded to determine this appeal on the merits, upon the record as filed, and without the assistance of submissions from either side. I have been careful, in doing so, to consider each ground of appeal on the footing most favourable to the party who would have advanced it, so that neither party suffers by reason of the silence of counsel.
The duty of the first Appellate Court
35. This being a first appeal, the duty of this court is well settled. It is to reconsider the evidence tendered before the trial court, to evaluate it afresh and to draw its own conclusions, bearing always in mind that it neither saw nor heard the witnesses and making due allowance in that respect.
36. The classic statement of the principle is that of the Court of Appeal for East Africa in Selle & another v Associated Motor Boat Company Limited & others [1968] EA 123, where it was held that an appeal from the High Court is by way of retrial and the appellate court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he failed to take account of particular circumstances or probabilities or that the impression of the demeanour of a witness is inconsistent with the evidence generally. See also Peters v Sunday Post Limited [1958] EA 424 and Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR.
37. That duty is, however, tempered by a corresponding restraint. An appellate court will not lightly disturb findings of fact made by the trial court which had the advantage of seeing and hearing the witnesses. It will interfere only where it is shown that the trial court acted on no evidence, or on a misapprehension of the evidence, or that it demonstrably acted on wrong principles in reaching the findings it did: Mwangi v Wambugu [1984] KLR 453.
38. I have approached this appeal in that spirit, and have re-read and re-assessed the whole of the material contained in the record.
Analysis and Determination
39. Having considered the pleadings, the evidence, the judgment appealed from and the grounds of appeal, the issues that fall for determination are these:
(i) Whether the appellant proved that the deceased held a proprietary interest in the suit property capable of devolving to his estate;
(ii) Whether the determination of the National Land Commission dated 17th July 2017 established the appellant’s claim to the suit property;
(iii) Whether the trial court erred in its treatment of the allegation that the appellant’s letter of allotment was not genuine;
(iv) Whether the appellant established an entitlement to an order of eviction and a permanent injunction;
(v) Whether the learned trial magistrate treated the evidence and submissions superficially or otherwise misdirected himself; and
(vi) What orders ought to issue, and who should bear the costs.
(i) Whether the appellant proved a proprietary interest in the suit property
40. The burden of proof lay upon the appellant. Section 107(1) of the Evidence Act, Cap. 80, provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Section 108 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side, and section 109 provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. The standard is the ordinary civil standard of a balance of probabilities.
41. The appellant pleaded, at paragraph 4 of the plaint, that the deceased was “the registered owner of property title number Kisumu/Municipality Plot No. 244” . That is a plea of registered proprietorship. It was not proved, and indeed it could not have been proved. No certificate of title, no grant, no deed, no certificate of official search and no extract of the register was tendered. On the appellant’s own evidence the suit property is an unsurveyed plot in respect of which no title has ever issued. There is accordingly a fundamental disconformity between what was pleaded and what was proved, and a party is bound by his pleadings.
42. What the appellant in truth relied upon was the letter of allotment, Ref. No. 30973/L111, addressed to Sylvester Ouma Osage of P.O. Box 39, Sondu, in respect of “Uns. Residential Plot No. 244, Kisumu”. It is therefore necessary to consider what, in law, such a document achieves.
43. A letter of allotment is not a document of title. It is an offer. It is an invitation by the allotting authority to the allottee to take a grant of the land described, upon the terms and conditions set out in the letter, and it becomes capable of ripening into an interest in land only upon acceptance of the offer in the manner and within the time stipulated and upon payment of the stand premium and the other charges prescribed. Until then it confers no interest, legal or equitable, in the land. If the conditions are not complied with, the offer lapses and the allottee is left with nothing.
44. That principle has been consistently applied. In Dr. Joseph N. K. arap Ng’ok v Justice Moijo Ole Keiwua & 4 others , Civil Application No. Nai. 60 of 1997, the Court of Appeal held that a letter of allotment does not of itself confer any interest in the land to which it relates. In Gladys Wanjiru Ngacha v Teresa Chepsaat & 4 others [2013] eKLR the court held that a letter of allotment is a mere offer which, if not accepted in accordance with its terms and within the time prescribed, lapses and confers nothing upon the allottee. See also Benja Properties Limited v Syedna Mohammed Burhannudin Sahed & 4 others [2015] eKLR.
45. The letter of allotment relied upon by the appellant is explicit upon its face. It offers a grant of the plot “subject to your formal written acceptance of the following conditions and to the payment of the charges as prescribed hereunder” . It states a term of 99 years, a stand premium, an annual rent of Kshs. 1,320/=, and a schedule of charges yielding a total of Kshs. 67,160/=. It requires that acceptance of the attached conditions be received “together with banker’s cheque for the amount as set out below within thirty (30) days of the postmark” . It further records that the allotment is subject to the provisions of the Government Lands Act, Cap. 280 (now repealed), and that title would issue under the Registration of Titles Act, Cap. 281, or the Registered Land Act, Cap. 300 (both now repealed). Special conditions are stated to be attached.
46. Upon a careful re-evaluation of the record I am satisfied, as the learned trial magistrate was, that not one of those conditions was proved to have been fulfilled. There is no evidence whatsoever of any formal written acceptance of the offer. There is no receipt, no banker’s cheque, no counterfoil, no bank statement and no ledger entry evidencing payment of the Kshs. 67,160/= or of any part of it. PW1 said in terms that she could produce the receipt if given time; she was granted leave to file a supplementary list of documents and to be recalled; the leave was extended; and in the event nothing was filed and the appellant’s case was closed. The special conditions said to be attached to the letter were never produced. Thirty-one years have elapsed since the date borne by the letter and no grant has issued.
47. A letter of allotment in respect of which no acceptance and no payment is proved is, in law, a spent offer. It vested no interest in the deceased. There was accordingly no proprietary interest in the suit property capable of forming part of his estate, and none capable of devolving upon the appellant as his personal representative. This ground of appeal must fail.
48. I would add that the appellant’s reliance upon the payment of land rates does not assist her. A demand for rates is not a document of title, and payment of rates by an occupant is not proof of proprietorship. In any event, the appellant produced no rates clearance certificate, and PW1 conceded in cross-examination that she had not produced receipts of payment for the current year. The land rates payment request that was produced was marked for identification only and was never formally admitted in evidence.
(ii) The determination of the National Land Commission dated 17th July 2017
49. The fifth ground of appeal, and much of the appellant’s case below, rested upon the proposition that the National Land Commission had, by its gazetted determination, pronounced in favour of the deceased and against the community claimants, and that the trial court erred in not giving effect to it.
50. I have read the gazette notice produced as P. Exhibit 4 with care. It records the Commission’s determination in respect of historical land injustice claims touching the extended areas of Kisumu Municipality. In summary, the Commission upheld the allocations made by the Commissioner of Lands; found the allocations made by the predecessor of the County Government of Kisumu to be illegal; revoked the allocations made by the Municipal Council of Kisumu; determined that the Kanyakwar Kogola Clan, the Kikako Welfare Association, the Kajulu Kithimo Welfare Association and the Kokat Ramba Community Development Group had no claim to the land, though they might pursue the question of historical injustice; and ordered the individuals or groups who had invaded the Kanyakwar lands to vacate.
51. Read in isolation, those findings appear to support the appellant. But a gazetted determination of this character operates upon identified parcels and identified persons. The gazette notice is accompanied by a schedule which names the claimants, describes the parcels concerned and states the determination made in respect of each. Neither the name of the deceased, Sylvester Ouma Osage alias Agoro, nor the suit property, Plot No. 244, appears anywhere in the schedule to the gazette notice as reproduced in the record.
52. That is fatal to this limb of the appeal. A general recital that the Commission upholds allocations made by the Commissioner of Lands cannot avail an allottee who has not proved that any allocation was ever completed in his favour. The determination confirms a class of allocations; it does not create one. The appellant’s difficulty is anterior to the gazette notice: she has not shown that the deceased ever perfected an allotment so as to bring himself within the class of persons whose allocations were upheld.
53. There is a further and independent difficulty. The Commission did not treat the matter as concluded by the 2017 determination. By Gazette Notice No. 5375 dated 6th May 2022, and further to Gazette Notice Vol. CXXI No. 27 dated 1st March 2019, the Chairman of the National Land Commission appointed a task force on the implementation of the historical land injustices determination for the Kikako Welfare Association and the Kolwa Development Association, under references NLC/HLI/103 and 127/2017. By a letter dated 9th June 2022 addressed to the Deputy Registrar of this court, the Commission requested the suspension of active court cases whose subject matter involves the extended areas of the Kisumu Municipality in Kanyakwar, South Kajulu and Kolwa, pending the work of that task force. The report and recommendations of the task force were not placed before the trial court and have not been placed before me.
54. The learned trial magistrate was therefore entirely correct to observe that the land parcels in this area remain the subject of an ongoing statutory process before the National Land Commission, and to decline to pronounce upon a question that Parliament has, by Article 67(2)(e) of the Constitution and sections 6 and 15 of the National Land Commission Act, 2012, committed in the first instance to that Commission. His advice to the parties to follow up the recommendations of the task force was sound and I endorse it.
(iii) The allegation that the letter of allotment was not genuine
55. The respondent’s case included a positive allegation that the appellant’s letter of allotment was a forgery. In support of it he produced, as Defence Exhibit 10(a), a letter dated 10th December 2021 from the County Coordinator, National Land Commission, Kisumu County, written in reply to the respondent’s advocates’ letter of 9th November 2021, stating that the Director of Land Administration in the Ministry of Lands and Physical Planning had confirmed that the subject letter of allotment did not emanate from that office.
56. The appellant is on firm ground in submitting, as she did before the trial court, that an allegation of fraud must be specifically pleaded and strictly proved, and that the standard, while short of the criminal standard, is higher than that which obtains in an ordinary civil case: Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR; Kinyanjui Kamau v George Kamau [2015] eKLR; Ndolo v Ndolo [2008] 1 KLR (G&F) 742. She is also right that the maker of the letter of 10th December 2021, Mr. Otieno Appida, was listed as
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