Naresho Butchers Self Help Group v Kiambi & another (Environment and Land Appeal E001 of 2022) [2024] KEELC 5434 (KLR)
The bottom line
#The Environment and Land Court in Kajiado confirmed that in double land allocations, the earlier allotment wins — the buyer with the older title kept the plot.
What this practically means
#Executive summary
#Key legal issues
#Whether additional evidence could be adduced on appeal
The application dated 28/11/2022 was refused
The application was not anchored on any of the seven grounds in the memorandum of appeal dated 5/1/2022, so allowing it would be an ambush outside the pleadings. It also fell outside the parameters in Mohamed Abdi Mahamud concerning relevance, impact on the case and other considerations for admitting new evidence in appellate courts.
Whether the 1st respondent proved ownership of Plot No. 167B(1)
Ownership was proved
The 1st respondent proved possession and development of the suit land with the authority of the 2nd respondent. His allotment from Mugambi Murwithania (allocated 13/8/2001, purchased 14/8/2010) was corroborated by the evidence of Okoth Charles Angira as to allotment and development.
Whether the 1st respondent encroached on the appellant's Plot No. 212
Encroachment was not proved
The dispute was one of double allocation occasioned by the defunct County Council of Olkejuado or its mismanagement of records during the countywide validation exercise. The 2nd respondent's lack of records could not be blamed on the 1st respondent, whose allocation was earlier in time and therefore prevailed.
Whether the 2nd respondent should be struck out of the appeal
The 2nd respondent remains a party
The 2nd respondent participated in the trial before the lower court and any orders made in the appeal would affect it; it is a necessary party and was not struck off.
Whether the trial Magistrate disregarded the evidence of the surveyors and the land registrar
No; the evidence was considered at length
The record at pages 278-279 shows the evidence of the witnesses was considered, and at page 281 the trial Magistrate found the dispute was one of double allocation occasioned by the defunct Council's mismanagement of records during the validation exercise. That finding was upheld.
Legal principles established
#- On a first appeal the court is bound by the Selle principles: it must reconsider and evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses
- A party is bound by its pleadings and cannot seek relief (such as adducing additional evidence on appeal) outside the grounds in the memorandum of appeal
- Where there is a double allocation of land, the earlier allocation prevails, and a public body's mismanagement of its records cannot be blamed on the earlier allottee
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Judgment and decree of the trial Magistrate dated 22/12/2021 upheld
- 3.Costs of the appeal awarded to the 1st respondent
- On appeal from
- Kajiado Magistrates' Court (MC/ELC)
- Kajiado/MC/ELC 90/2013
- Jurisdiction invoked
- First appeal to the Environment and Land Court from a subordinate court (appeal by way of retrial)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naresho Butchers Self Help Group v Kiambi & another (Environment and Land Appeal E001 of 2022) [2024] KEELC 5434 (KLR)", Case Analysis (2024). Kajiado/MC/ELC 90/2013 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5434/eng@2024-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.