The Co-operative Management Committee of Emparnat Farmers Dairy Co-operative Society Limited v Joseph Tobiko Kelempu
The bottom line
#Kenya's Court of Appeal confirmed that the first person allotted public land keeps it, even if authorities later allot the same plots to someone else.
What this practically means
#Executive summary
#Key legal issues
#Whether this second appeal is confined to matters of law.
Yes. In a second appeal the Court of Appeal confines itself to matters of law and will not interfere with concurrent findings of fact unless the two courts below considered matters they should not have considered, failed to consider matters they should have considered, or the entire decision is perverse.
The Court anchored its role in its settled approach to second appeals, citing Kenya Breweries Ltd v Godfrey Odoyo where Onyango Otieno JA cautioned against the temptation of delving into matters of fact. It therefore framed a single substantive question: whether the first appellate court correctly applied the law in holding the suit properties were not unalienated. The Court resolved that question on the documentary record without re-evaluating witness credibility.
Whether a second allotment can validly be made over land already allotted to another.
No. Where an earlier allotment has been made and the first allottee has fulfilled the terms of the allotment, the land is unavailable for allotment to any other person, and a second allotment cannot stand; the first allottee in time is the bona fide proprietor.
Relying on Benja Properties, the Court reiterated that an allotment of an interest in land is a transaction in rem attaching to and running with a specific parcel. In Wambia the first allotment had made the property unavailable to the second allottee; in Waziri an allottee who paid all stand premiums acquired rights rendering the land unavailable to others; and in Kenya Ihenya the first-in-time allottee among a double allocation was the bona fide proprietor. The respondent's 2005 allotment therefore defeated the appellant's 2016 reallocation.
Whether the appellant proved that the respondent's 2005 allotment had been cancelled or the plots repossessed before their reallocation to the appellant in 2016.
No. Nothing was tendered to show that the respondent's allocation had been cancelled; the County Government of Kajiado continued to receive land rates and rent from the respondent and its records continued to carry his name, showing the allotment subsisted and the land was not unalienated.
The appellant rested on an alleged breach of Condition No. 2 of the letters of allotment, but DW1 produced no evidence that the plots were actually repossessed and reallocated. The first appellate Judge noted that the County Surveyor who showed the appellant the plots was not the allotting authority, and that continued acceptance of rates and rent was inconsistent with repossession. This Court endorsed those observations as correctly made.
Whether the appellant's documents established that the plots allocated to it were the same as the plots allotted to the respondent.
No. Apart from the testimony of DW1, the appellant's documents did not speak to the identity of the plots; the letter of 12th July 2016 and the survey report referred to Site 543 and Site 48, not to Plots No. 1556 and 1557.
The appellant faulted the first appellate Judge for failing to consider the surveyor's report as a crucial document establishing ownership. The Court observed that the 2016 letter and the survey report referred to Site 543 and Site 48, and that although the parties appeared to accept the documents spoke to the same properties, this did not assist the appellant: even where a double allocation exists, the second allotment cannot stand against the first allottee.
Legal principles established
#- A second appeal to the Court of Appeal is confined to matters of law only; the Court will not delve into questions of fact.
- Where an earlier allotment of land has been made, the land is unavailable for reallocation to another person and a second allotment cannot stand.
- Continued receipt of land rates and rent by the allotting authority from the original allottee indicates that the allotment was never cancelled or repossessed.
Court orders
#- 1.The appeal is dismissed.
- 2.The costs of the appeal are awarded to the respondent.
- On appeal from
- Environment and Land Court at Kajiado
- ELC Appeal No. 14 of 2019
- Jurisdiction invoked
- Second appeal to the Court of Appeal, confined to matters of law only; the judgment does not cite the specific constitutional or statutory provision under which the appeal was brought.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Co-operative Management Committee of Emparnat Farmers Dairy Co-operative Society Limited v Joseph Tobiko Kelempu", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1608/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.