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ELCPartially AllowedEnvironment and Land Case 41 of 2016· [2023] KEELC 16627 (KLR)

Peter Muriuki Solomon v Peter Midimo Agalo & 3 others

Environment and Land Court
27 March 2023
23,045 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~92 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled the first person to complete payment for a plot wins it, even if a later allotment letter exists.

What this practically means

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Executive summary

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This Environment and Land Court judgment at Kitale resolves a long-running dispute over a Kitale commercial plot (Plot-Y), later LR. No. 2116/1264 and then Kitale Municipality Block 6/72, subject of four suits since 1994. The Plaintiff, a TOL holder in occupation since 1986, claimed he was lawfully allotted the plot by a letter of allotment dated 22/07/1994 after the Commissioner of Lands directed that TOL holders be ratified and PAC allottees (including the 1st Defendant) given alternative plots. He sought declarations that the conversion of the title and issuance of the Certificate of Lease to the 1st Defendant were fraudulent and illegal, cancellation of that title, and registration in his name. The 1st Defendant, allotted the plot on 05/11/1992 and issued a Grant on 05/04/1994, counterclaimed for the Plaintiff's eviction as a trespasser. The Court found both allotment letters related to the same plot. It held the 1st Defendant was the lawful allottee: his lapsed offer was revived by negotiation, accepted on 16/03/1993, payment made, and the land fully alienated with a Grant under Section 23(1) of the RTA, which the Plaintiff's TOL and out-of-time acceptance could not override. The conversion to the RLA regime, effected while a caveat subsisted and during the pendency of Kitale SPMCC No. 96 of 1995, was held irregular and unprocedural but not fraudulent. The Plaintiff's suit succeeded only in part: the conversion was declared unprocedural and the Land Registrar ordered to cancel the Certificate of Lease. The remainder of the Plaintiff's claim was dismissed with costs to the 1st Defendant, and judgment was entered for the 1st Defendant on the counterclaim as prayed.

Key legal issues

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01

Whether the two allotment letters related to the same plot

Holding

Both letters of allotment referred to one and the same plot (Plot-Y), evidenced by the identical PDP attached to both and PW4's evidence of two files opened over the same plot

Reasoning

Although the plot descriptions, sizes and premiums differed slightly, both allotment letters attached the same Plan showing plot 'Y' as a corner plot bordered by plot X. PW4, the Assistant Director of Land Administration, testified the two files referred to one and the same plot, opened in error. The Court therefore found a genuine double allocation dispute existed.

02

Who was the lawful allottee of Plot-Y

Holding

The 1st Defendant was properly allocated Plot-Y; his offer lapsed but was revived by negotiation, accepted on 16/03/1993, payment made, and the land fully alienated to him with a Grant issued on 05/04/1994

Reasoning

The 1st Defendant's allotment of 05/11/1992 was first in time. Though he paid late, the file showed a negotiated revival of the offer at a higher sum, acceptance in writing, and the Commissioner's endorsement 'accept payment as per L/A'. The Plaintiff's TOL conferred only temporary occupation; his own allotment of 22/07/1994 was accepted out of time without revival, so it attached to nothing. The Grant under Section 23(1) RTA took precedence.

03

Whether the conversion from RTA to RLA regime was fraudulent, unprocedural or irregular

Holding

The conversion was irregular and unprocedural because it was effected while a caveat subsisted and during the pendency of Kitale SPMCC No. 96 of 1995, but it was not fraudulent

Reasoning

The conversion process began on the Commissioner's own motion before the caveat was placed, and the file showed it was effected by the Lands office, not at the 1st Defendant's instigation. However, the Certificate of Lease was issued on 28/06/2001 while the caveat remained and while SPMCC No. 96 of 1995 was pending, offending lis pendens. Irregularity alone does not constitute fraud.

p. 30
04

Effect of the conversion on proprietorship

Holding

The irregular conversion did not alter proprietary interests; the 1st Defendant remains the lawful allottee and may process a fresh Certificate of Lease following the right procedure

Reasoning

Since the allotment to the 1st Defendant was proper and gave rise to a lawfully issued Grant, the procedural defect in conversion could not defeat his ownership. Only the conversion itself was declared unprocedural and illegal; the Letter of Allotment and Grant remain valid and registered in the 1st Defendant's name.

p. 31
05

Whether fraud particulars against the 1st Defendant were proved

Holding

None of the particulars of fraud were proved; the alleged forged letter of 22/06/2001 was confirmed as genuine, and the counterclaim was proved in its entirety

Reasoning

The Court examined each fraud particular: the conversion occurred during pendency of SPMCC 96 of 1995 but that was irregularity not fraud; no alternative plot was ever found for the 1st Defendant; the letter of 22/06/2001 emanated from the Commissioner's office as Folio 89 of the file; the file record was intact with nothing obscured. The 1st Defendant's evidence proved the Plaintiff had no colour of right on the land.

p. 33

Legal principles established

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  • A letter of allotment is only an offer; once acceptance and payment complete the allotment, the land is alienated and unavailable for re-allocation
  • A temporary occupation licence does not create proprietary rights and cannot override a certificate of title
  • The Commissioner of Lands has no power to cancel a title; only the Court retains that jurisdiction
  • Parties are bound by their pleadings and evidence at variance with pleadings must be disregarded

Court orders

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  1. 1.A declaration that the conversion of Plot Number LR. 2116/1264 - Kitale Municipality to Kitale Municipality Block 6/72 and subsequent issuance of the Certificate of Lease to the 1st Defendant was unprocedural
  2. 2.An order to the 2nd Defendant to cancel the Certificate of Lease issued to the 1st Defendant
  3. 3.The Plaintiff's suit succeeds in part while the rest of the reliefs are dismissed with costs of the entire suit to the 1st Defendant
  4. 4.Judgment entered for the 1st Defendant on the Counterclaim against the Plaintiff as prayed

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 67 and 68
  • Repealed Constitution of KenyaSection 82
  • Land Registration Act
  • Registration of Titles Act (repealed)Sections 23(1), 57(2), 57(3), 65(1)(f)
  • Registered Land Act (repealed)
  • Limitation of Actions Act
  • Evidence ActSection 107(1)

Cases cited (15)

  • Ashmi Investment Limited vs Riakina Limited & Another
    (Civil Appeal 384 of 2019) [2021] KECA 184 (KLR)

    In double allocation, the offer remains open and acceptance takes effect only upon full payment of requisite fees

  • Philemon Wambia vs Gaitano Mukofu & 2 Others
    [2019] eKLR

    Allotment letter not attaching in rem where land already alienated

  • Satrya Investment Ltd vs J. K. Mbogua
    [2013] eKLR

    A temporary occupation licence cannot override a title under the Registration of Titles Act

  • Joseph Bor vs Tabutany C. Chebusit
    ELC Appeal No. E001 of 2020 [2021] eKLR

    Where two titles issued regularly over the same property, first in time prevails

  • Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others
    (2014) eKLR

    Parties are bound by their pleadings; evidence at variance with pleadings is disregarded

  • Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC
    SC 91/2002

    Importance of pleadings; parties cannot depart from them

  • Raila Amolo Odinga & Another vs. IEBC & 2 others
    (2017) eKLR

    In absence of pleadings, evidence produced cannot be considered; no party may travel beyond pleadings

  • Benja Properties Limited -v- Syedna Mohammed Burhannudin Sahed & 4 others
    [2015] eKLR

    An allotment of an interest in land is a transaction in rem attaching to a specific parcel of land

  • Stephen Mburu & 4 Others -v- Comat Merchants Ltd & Anor
    [2012] eKLR

    A letter of allotment is not a title to property; it is a transient offer

  • Gitwany Investment Limited -v- Tajmal Limited & 2 others
    (2006) eKLR

    The earlier grant takes priority; the land is already alienated

  • Wreck Motors Enterprises vs. Commissioner of Lands
    C.A. No. 71/1997 (unreported)

    The grant takes priority; the land is alienated already

  • Faraj Maharus vs. J.B. Martin Glass Industries and 3 others
    C.A 130/2003 (unreported)

    A temporary occupation licence cannot oust a certificate of title granted under the Registration of Titles Act

  • Brogden v Metropolitan Railway Co
    [1877] 2 App Cas 666

    Acceptance may be implied from conduct of the parties

  • Dickinson v Dodds
    [1876] 2 Ch D 463

    An offer must continue up to the time of acceptance for a contract to form

  • Kn Aswathnarayana Setty (d) Tr. Lrs. & Ors Vs State Of Karnataka & Ors
    SLP (C) NO.22311 OF 2012

    Doctrine of lis pendens based on the maxim ut lite pendente nihil innovetur

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution over disputes relating to land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Muriuki Solomon v Peter Midimo Agalo & 3 others", Case Analysis (2023). Environment and Land Case 41 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16627/eng@2023-03-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.