Fresh N Nice Limited v County Government of Isiolo & 2 others; Ethics and Anti-Corruption Commission (Interested Party) (Petition E003 of 2023) [2025] KEELC 4459 (KLR)
The bottom line
#An Isiolo court dismissed a landowner's petition, ruling that a title certificate alone doesn't prove ownership when the land itself was never legally available for allocation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the Petitioner has proven that same is the lawful and registered proprietor of the suit property and thus entitled to the requisite protection or otherwise
- 2.whether the subject petition constitutes an abuse of the due process of the court or otherwise
Key legal issues
#Proof of root of title
The Petitioner, resting solely on the certificate of title, failed to prove the legality of the process underpinning its issuance; the title was procured in vacuum and is not entitled to constitutional protection
A certificate of title is an end product and cannot prove its own authenticity. The Petitioner was required to produce transactional documents - application for allotment, county council minutes, no-objection letter, approved part development plan and letter of allotment - as the land was trust land whose alienation required County Council of Isiolo approval under section 53 of the Trust Land Act. None were tendered, so the burden of proof was not discharged.
Availability of the land for allocation
The land had been reserved and gazetted as prison land and was therefore not unalienated government land capable of allocation by the Commissioner of Lands
The 1st Respondent exhibited a gazette notice and PDP reserving the land for prison use. The Commissioner of Lands could only allocate unalienated government land and could not issue a letter of allotment over land already allocated, leased or reserved for a designated government purpose. Allotment over a non-existent or unavailable parcel is a paper transaction without substratum.
Res sub judice and abuse of court process
The petition was barred by res sub judice given the pending EACC suit (Isiolo ELC E004 of 2021) challenging the same title, and constituted a deliberate, premeditated abuse of process to procure a judgment in rem
The Petitioner was privy to the pending EACC recovery suit seeking to impeach the same title and should have filed a counterclaim there. Filing a fresh petition raising the same issues during the pendency of that suit violated section 6 of the Civil Procedure Act. The petition was a collateral attempt to gag the Interested Party and defeat the earlier proceedings, falling squarely within abuse of due process.
Legal principles established
#- A certificate of title is an end product and, where its validity is challenged, the registered proprietor must prove the root of title beyond the instrument itself
- Indefeasibility of title cannot be deployed to sanction an illegality; illegally or irregularly procured titles do not attract protection under Article 40(3) of the Constitution
- The doctrine of res sub judice bars the filing of a later suit between the same parties over the same subject matter pending determination of the earlier suit
Court orders
#- 1.The Petition be and is hereby Dismissed
- 2.Costs of the Petition be and are hereby awarded to the 1st respondent and the Interested Party only
- 3.The Costs in terms of (ii) above shall be agreed upon and in default to be taxed in the conventional manner
- 4.The court refrained from addressing the question of revocation of title because that issue is sub judice in ELC E004 of 2021
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original constitutional petition jurisdiction under the Constitution of Kenya, 2010 (Articles 40, 64 and 40(3) invoked); Environment and Land Court Act
Relief refused
#Declaration that the Petitioner is the lawful and registered proprietor of LR No. 7918/735 as private land
Petitioner failed to discharge the burden of proving the root of title; the land was gazetted prison land and the title was procured in vacuum
Permanent injunction, mandamus, certiorari, and damages for breach of constitutional rights and trespass
These reliefs flowed from the failed declaration of ownership; the petition was also barred by res sub judice and was an abuse of court process
Costs
Costs of the Petition awarded to the 1st Respondent and the Interested Party only, to be agreed upon and in default to be taxed in the conventional manner
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Petition be and is hereby Dismissed.
Cost[s] of the Petition be and are hereby awarded to the 1st respondent and the Interested Party only.
Even though I have found and held that the Petitioner did not accrue and or acquire lawful title to the suit property, I have restrained myself from venturing forward to address the question of revocation because the said issue is sub judice ELC E004 of 2021.
Being an end product, it cannot be utilized and deployed to prove its authenticity.
sanctity of title was never intended or understood to be a vehicle for fraud and illegalities or an avenue for unjust enrichment at public expense.
the instant petition is/ was prohibited by the doctrine of res sub judice.
It was a deliberate attempt to procure a judgment in rem and thereby gag the Interested Party from pursuing the previous suit and in particular, from challenging the impugned certificate of title.
Issues in the judgment
#Internal inconsistency in the description of the suit property: the petition seeks declarations over 'Land Reference number 7918/735' while the annexed certificate of title is described as 'LR No. 1718/735 [IR No. 6481]'
Inconsistent dates for the 1st Respondent's replying affidavit - sworn 'on the 3rd November 2023' at paragraph 3 but later referred to as 'sworn on the 30th November 2024' and '30th November 2023'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fresh N Nice Limited v County Government of Isiolo & 2 others; Ethics and Anti-Corruption Commission (Interested Party) (Petition E003 of 2023) [2025] KEELC 4459 (KLR)", Case Analysis (2025). Petition dated 3rd October 2023 (Isiolo). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4459/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.