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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 1432 (KLR)

Gache & 2 others v Bonyo & 5 others (Environment & Land Case 3 of 2014) [2025] KEELC 1432 (KLR)

Environment and Land Court of Kenya
20 March 2025
SOS. Okong'o
5,469 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled land titles obtained through a later allocation, confirming that the first validly accepted allotment of public land wins.

What this practically means

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Executive summary

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The 1st and 2nd Plaintiffs (later joined by a 3rd Plaintiff) sued the 1st to 6th Defendants over parcel Plot No. 15155 Kisumu, seeking a declaration of ownership, rectification of the register, a permanent injunction and general damages for fraud and malicious damage. The 1st to 4th Defendants denied the Plaintiffs' allotment, asserting their own allocation of 27th February 1996 and Grant No. I.R 151210 issued on 9th December 2013, and counterclaimed for declarations of ownership, eviction and an injunction. Each side alleged the other's allotment was forged. The court found that the 2nd Plaintiff was allocated the property on 15th May 1991, accepted the allotment and paid the requisite fees on 9th October 2013, before the Defendants accepted their allotment and paid. Applying the principle that the first allotment prevails and that land, once allocated and accepted, is no longer unalienated government land available for re-allocation, the court held the Defendants' Grant to be irregular, unprocedural and tainted with fraud. The unchallenged determination of the National Land Commission, gazetted on 9th November 2018, was accorded evidential weight. The Defendants' registered title, though prima facie indefeasible, was nullified for fraud and illegality. Judgment was entered for the Plaintiffs: a declaration that the 2nd and 3rd Plaintiffs are beneficial owners, cancellation of the Defendants' registration and Grant by the 5th Defendant, and a permanent injunction. General damages of Kshs. 20,000,000/- were refused for want of proof. The counter-claim was dismissed with costs to the Plaintiffs.

Key legal issues

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01

Competing titles - which allocation takes priority

Holding

The 2nd Plaintiff's allotment of 15th May 1991 was the first in time and was accepted with payment; the Defendants' later allotment and Grant were irregular and unprocedural

Reasoning

The Commissioner of Lands could only allocate unalienated government land. Once the property was allocated to the 2nd Plaintiff and the allotment was accepted and payment made, it ceased to be unalienated government land. There was no evidence the allotment was cancelled, so the Defendants' subsequent allocation and Grant were irregular. The first in time prevails.

p. 8
02

Indefeasibility of the Defendants' registered title and the burden of proving fraud

Holding

Although the Defendants held a Grant, the Plaintiffs proved that the title was tainted with fraud, misrepresentation, illegality and procedural impropriety, rendering it null and void

Reasoning

Under Section 23 of the Registration of Titles Act and Section 26(1) of the Land Registration Act 2012 the Grant was prima facie indefeasible, but the burden lay on the Plaintiffs to prove fraud. The NLC's unchallenged determination, Gazette notice and other evidence established that the Defendants' allotment was fraudulent, displacing the protection of the title.

p. 9
03

Evidential weight of the NLC's determination

Holding

The court was not bound by the NLC determination but found it of evidential value, especially as it was unchallenged by judicial review

Reasoning

The NLC heard the parties and determined the dispute on 14th March 2018, finding the Defendants' title should be cancelled and the property registered in favour of the 2nd Plaintiff. DW1's claim of ignorance of the hearing was disbelieved. Since the Defendants did not challenge the determination, the court gave it evidential weight.

p. 9
04

Claim for general damages for trespass and malicious damage

Holding

General damages were refused as the Plaintiffs did not prove the identity of the invaders or the damage suffered

Reasoning

The Plaintiffs claimed Kshs. 20,000,000/- as general damages but did not prove that the Defendants or their agents destroyed the fence or caused the destruction, nor that they suffered any quantifiable damage. The claim failed for lack of proof on a balance of probabilities.

p. 10

Legal principles established

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  • Where a letter of allotment has been issued and accepted, the land is no longer available for re-allocation unless the first allocation is validly cancelled
  • Where there is a double allocation of land, the first allotment prevails

Court orders

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  1. 1.A declaration that the 2nd and 3rd Plaintiffs are the beneficial owners of the parcel of land situated in Kisumu known as L.R No. 15155
  2. 2.An order for the 5th Defendant to cancel the registration of the 1st, 2nd, 3rd and 4th Defendants as the owners of L.R No. 15155 and Grant No. I.R. 151210 issued to them and registered as I.R No. 151210/1
  3. 3.A permanent injunction restraining the 1st, 2nd, 3rd and 4th Defendants by themselves or through their agents, servants and/or employees from entering, remaining on or erecting any structures on L.R No. 15155
  4. 4.The 1st, 2nd, 3rd and 4th Defendants' counter-claim is dismissed
  5. 5.The Plaintiffs shall have the costs of the suit and the counter-claim
Jurisdiction invoked
Original civil jurisdiction over the suit property under Article 162(2)(b) of the Constitution (implied; not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gache & 2 others v Bonyo & 5 others (Environment & Land Case 3 of 2014) [2025] KEELC 1432 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1432/eng@2025-03-20

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