Ashmi Investment Limited v Riakina Limited & another (Civil Appeal 384 of 2019) [2021] KECA 184 (KLR)
The bottom line
#In a double allotment dispute, the Court of Appeal confirmed the buyer who first accepted the allotment and paid the fees in full wins the land.
What this practically means
#Executive summary
#Key legal issues
#Legal effect of double allotment of land
Where two allotment letters issue over the same parcel on the same date, priority goes to the allottee who first accepts the offer and pays the requisite fees in full; the property then ceases to be available for allocation to the other.
Both parties received allotment letters dated 28th July 1998 over Plot 'D'. The offers were conditional. The 1st respondent accepted on 4th August 1998 and paid stand premium on 3rd April 2001 and further fees on 15th October 2001, whereas the appellant paid only on 20th February 2013. Being first in time to discharge the conditions, the 1st respondent was entitled to allocation and registration.
Availability of the property for subsequent allotment
Once a plot has been allotted to a party who has paid the requisite fees and taken possession, it is not available for allocation to another; a purported later allotment and titles obtained on its strength are irregular.
The court evaluated the receipts and possession. By 2013, when the appellant paid, Plot 'D' had long been allotted, paid for and possessed by the 1st respondent, which was procuring title. The court cited Benja Properties Limited for this proposition and held the appellant's late-acquired certificates of title presumptively irregularly obtained through an unlawful scheme.
Dealing with suit property during pendency of suit (lis pendens)
A party who processes or obtains title over suit property while litigation is pending acts unlawfully and fraudulently, and such conduct is intended to defeat the rights of the other party.
The appellant processed title deeds issued on 4th March 2015 while its suit was pending. Relying on Bellamy v Sabine and the court's own decision in Rose Wakanyi Karanja, the Court held that neither party may alienate suit property during pendency so as to defeat the other's rights, and agreed with the trial court that the appellant's conduct was unlawful and fraudulent.
Duty of a first appellate court
A first appellate court must re-evaluate and re-examine the trial evidence and draw its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses.
Citing Dinkerrai Ramkrishan Pandya v R, Figgis v R, The Glannibanta and Selle v Associated Motor Boat Co, the Court restated the classic first-appeal standard: it is entitled, on questions of fact as of law, to weigh conflicting evidence and draw its own inferences, but must bear in mind the trial judge's advantage in assessing demeanor.
Legal principles established
#- An offer of allotment of public land is conditional and takes legal effect only upon full payment of the requisite fees and impositions; the first party in time to accept and pay is entitled to allocation and registration, after which the property is not available for allotment to another.
- The doctrine of lis pendens binds a litigant (and those claiming through him) from alienating or dealing with suit property in a manner intended to defeat the rights of the opposing party during the pendency of the suit.
Court orders
#- 1.The appellant's appeal is dismissed
- 2.The judgment and decree of the Nairobi (Milimani) Environment and Land Court (Hon. Justice K. Bor) dated 25th September 2017 are upheld
- 3.Costs of the appeal are to be borne by the appellant
- On appeal from
- Environment and Land Court, Nairobi (Milimani)
- Nairobi Environment and Land Court Case No. 646 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal (duty to re-evaluate trial evidence); the judgment does not cite a specific constitutional or statutory appellate provision.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Okara v Turere & 5 others (Environment and Land Appeal E016 of 2023) [2026] KEELC 3217 (KLR)[2026] KEELC 3217 (KLR)21 May 2026
Cite this brief
#Cite this brief
Caselaw, "Ashmi Investment Limited v Riakina Limited & another (Civil Appeal 384 of 2019) [2021] KECA 184 (KLR)", Case Analysis (2021). Nairobi Civil Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/184/eng@2021-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.