Gollo & 3 others v Defence & 6 others (Petition E003 of 2021) [2025] KEELC 1270 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a land petitioners' claim because an allotment letter alone, lapsed and unsupported by valid plans, grants no ownership rights.
What this practically means
#Executive summary
#Key legal issues
#Whether the dispute was properly mounted as a constitutional petition or should have been an ordinary civil suit
Although the principle of constitutional avoidance discourages constitutionalising ordinary civil claims, the Petition was properly filed because it pleaded breach of Article 40 and 64 rights by state organs.
The court acknowledged the authorities requiring claimants to use statutory mechanisms and not to convert ordinary suits into constitutional petitions to evade limitations strictures. However, because the reliefs espoused breach, violation and infringement of the fundamental right to property under Articles 40 and 64 against state organs, the Petition was neither premature nor incompetent.
Whether the Petitioners were lawful proprietors of the suit properties
No. The letters of allotment relied upon were legally deficient, unsupported by valid PDPs, and had lapsed; the Petitioners acquired no proprietary rights capable of protection.
The County Council of Nyambene could only recommend allocation of trust land; the Commissioner of Lands had to issue the allotment letter. The exhibited allotment letters were not accompanied by application letters, council minutes, recommendations or the Commissioner's allotment. The 2nd and 4th Petitioners' allotment letters did not name the county council on whose behalf they were issued, lacked PDP numbers, and the PDPs were incomplete and unauthenticated. The letters required acceptance and payment within 30 days; no acceptance letter or receipts were tendered, so the letters lapsed by effluxion of time.
Whether the Petitioners were entitled to the reliefs sought
No. Declaratory orders and permanent injunction require acquired rights and proof of title; special damages were neither stamped nor strictly proved.
A declaration only issues to vindicate acquired rights, and a permanent injunction requires proof of title, which was absent, so the injunction was sought in vacuum. The special damages claim was supported by unstamped receipts contrary to Sections 19 and 20 of the Stamp Duty Act, and the Respondents' uncontroverted averment that the workers removed the fence themselves defeated the claim.
Legal principles established
#- A letter of allotment is incapable of conferring any interest in land; it is no more than an offer awaiting fulfilment of the conditions stipulated in it.
- A letter of allotment lapses if the special conditions (acceptance and payment within 30 days) are not complied with.
- A PDP is a key instrument in land allocation and must bear both the plan number and approved plan number to be valid.
- Courts can only protect proprietary rights that have been acquired; inchoate, imaginary or illusory rights cannot be vindicated under Article 40.
- A purely civil claim should not be clothed as a constitutional petition; however, a petition pleading breach of Article 40 rights against state organs is properly before the court.
- Special damages must be specially pleaded and strictly proved.
Court orders
#- 1.The Petition be and is hereby dismissed.
- 2.Costs of the Petition be and are hereby awarded to the Respondents save for the 6th Respondent who did not participate in the proceedings.
- Jurisdiction invoked
- Articles 22, 23, 40, 64 and 258 of the Constitution of Kenya 2010 (constitutional petition for enforcement of the right to property)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gollo & 3 others v Defence & 6 others (Petition E003 of 2021) [2025] KEELC 1270 (KLR)", Case Analysis (2025). Petition dated 8th May 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1270/eng@2025-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.