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ELCAllowedNot stated in the judgment (memorandum of appeal dated 24th March 2025)

Bezabinh & another v Ali & another; County Government Of Isiolo & 4 others (Interested Parties) (Environment and Land Appeal E011 of 2025) [2025] KEELC 8247 (KLR)

Environment and Land Court of Kenya
27 November 2025
6,591 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Isiolo threw out a landowner's title because it was built on a lapsed allotment, handing victory to long-term occupants.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Isiolo against the judgment of Hon. M.A Odhiambo, SRM, delivered on 28th February 2025, in which the trial court declared the 1st respondent the lawful owner of L.R No. Isiolo Township/Block 2/10, ordered the appellants' eviction and demolition of structures, granted a permanent injunction, and dismissed the appellants' counterclaim. The appeal was canvassed by written submissions. The court framed three issues: the competence of the appeal, whether the 1st respondent proved title, and whether the appellants proved their counterclaim. On competence, the court held that Order 9 Rule 9 does not apply to a new advocate filing an appeal, the appeal being fresh and distinct proceedings; and the delayed lodgement of the certified decree was a technicality curable under Article 159(2)(d), with the 1st respondent estopped from objecting after confirming the record complete at directions. On title, the court found that the letter of allotment dated 22nd June 1998 required acceptance within 30 days, but acceptance and payment occurred on 7th March 2016, after the allotment had lapsed; the payment was made to the defunct office of the Commissioner of Lands; and the certificate of lease (0.370 ha) was at variance with the allotment (0.0370 ha), rendering the title illegal and invalid, having issued in a vacuum. On the counterclaim, the appellants' uncontroverted evidence of long occupation through DW4 and DW5 gave them a better title under the doctrine of seisin. Allowing the appeal, the court set aside the trial judgment and decree in their entirety, dismissed the 1st respondent's suit, allowed the counterclaim as prayed, and awarded the appellants the costs of the appeal, the suit and the counterclaim.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal on behalf of the appellants is competent and legally tenable
  2. 2.Whether the 1st respondent proved his title or entitlement to the suit property or otherwise
  3. 3.Whether the appellants proved the claims at the foot of their counterclaim or otherwise

Key legal issues

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01

Whether the appeal was incompetent for breach of Order 9 Rule 9 Civil Procedure Rules and failure to lodge the certified decree under Order 42 Rule 1

Holding

The appeal was competent. Order 9 Rule 9 does not apply to appeals; and the failure to lodge the certified decree was a curable procedural technicality, with the 1st respondent estopped from raising it after confirming the record complete at directions.

Reasoning

The court held that an appeal is a separate and distinct cause from the primary suit; the leave requirement of Order 9 Rule 9 applies only to taking over proceedings in the primary suit, not to filing an appeal. Reliance was placed on Tobias M. Wafubwa v Ben Butali. On the decree, the appeal had been admitted and directions taken with no competence objection; the decree was in any event lodged in the supplementary record, and the lapse was curable under Article 159(2)(d).

p. 6
02

Whether the 1st respondent proved title to the suit property

Holding

The 1st respondent did not prove the root of his title; the letter of allotment had lapsed for non-compliance, the late acceptance and payment were ineffectual, and the certificate of lease was issued in a vacuum and was illegal, unlawful and invalid.

Reasoning

The letter of allotment dated 22nd June 1998 required acceptance within 30 days, but the acceptance was dated 7th March 2016, long after the allotment had lapsed. Payment was made to the office of the Commissioner of Lands, which ceased to exist upon enactment of the National Land Commission Act 2012. The certificate of lease showed 0.370 ha against an allotment of 0.0370 ha, a disconnect the 1st respondent could not explain.

p. 10
03

Whether the appellants proved their counterclaim

Holding

The appellants, in occupation and possession through predecessors (DW4 and DW5), held a better title under the doctrine of seisin than the 1st respondent whose root of title was flawed.

Reasoning

The appellants traced their claim to persons long in occupation of the land, evidence that was uncontroverted; DW5 testified he was born on the land and acquired it in 1984. Invoking Benja Properties, the court held possession is nine-tenths ownership and the slightest possession suffices, so the appellants held the better title against a claimant with no valid root.

p. 11
04

The scope of the first appellate court's mandate

Holding

The court is entitled to re-evaluate the entire evidence and reach its own conclusions, but may depart from the trial court's findings only on established grounds.

Reasoning

Relying on Kenya Urban Roads Authority v Belgo Holdings and Peters v Sunday Post, the court restated that a first appellate court must subject the whole evidence to fresh scrutiny while allowing for the trial court's advantage of seeing and hearing witnesses. Having found the trial court's conclusion rested on no evidence and misapprehension of the documents, the court respectfully departed from the findings.

p. 11

Legal principles established

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  • Order 9 Rule 9 of the Civil Procedure Rules does not apply to the filing of an appeal by a new advocate; an appeal is fresh proceedings that any instructed firm may file without leave or a notice of change.
  • A letter of allotment whose terms are not complied with within the stipulated timeline lapses and stands extinguished by operation of law, and no valid certificate of title can issue from a lapsed allotment.
  • Possession is a root of title; an occupant in possession has a better right to land as against one who can show no better title (the doctrine of seisin).
  • A first appellate court may only depart from the findings of the trial court where those findings are based on no evidence, are perverse, rest on misapprehension of the evidence, or flow from an error of principle.

Court orders

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  1. 1.The Appeal be and is hereby allowed
  2. 2.The Judgment of the learned trial magistrate dated 28th February 2025; and the consequential decree be and is hereby set aside in its entirety
  3. 3.In lieu thereof, there be and is hereby issued an order dismissing the 1st respondent's suit vide amended Plaint dated 16th February 2022
  4. 4.The counterclaim by the appellants dated 22nd November 2022 be and is hereby allowed as prayed
  5. 5.The Costs of the Appeal be and are hereby awarded to the appellants and same shall be borne by the 1st respondent
  6. 6.The Appellants are also awarded the costs of the suit and the counterclaim in the subordinate court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Magistrate's Court at Isiolo (trial magistrate Hon. M.A Odhiambo – SRM)
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (section 78 of the Civil Procedure Act, Cap 21)

Quotable passages

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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 Appeal be and is hereby allowed.
p. 11Disposition – appeal allowed
The Judgment of the learned trial magistrate dated 28th February 2025; and the consequential decree be and is hereby set aside in its entirety.
p. 11Final orders – trial judgment set aside
In lieu thereof, there be and is hereby issued an order dismissing the 1st respondent's suit vide amended Plaint dated 16th February 2022.
p. 11Final orders – respondent's suit dismissed
Furthermore, the counterclaim by the appellants dated 22nd November 2022; be and is hereby allowed as prayed.
p. 11Final orders – counterclaim allowed
The impugned certificate of lease was issued in vacuum. Same is therefore illegal, unlawful and invalid.
p. 10Validity of title issued from a lapsed allotment
the failure to lodge the certified copy of the decree in accordance with the provisions of Order 42 Rule 1 of the Civil Procedure Rules, is a procedural technicality that is curable by dint of Article 159 (2) (d) of the Constitution 2010
p. 8Curability of procedural technicalities on appeal

Issues in the judgment

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minor

The judgment gives conflicting dates for the counterclaim: it is described as dated 22nd November 2021 in the account of the trial judgment, but the final orders allow a counterclaim dated 22nd November 2022.

minor

The memorandum of appeal and the parties' listing are internally inconsistent as to party roles: ground (v) refers to 'the 2nd defendant' as a trespasser, while the proceedings describe the appellants (plural) as the parties in occupation.

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, "Bezabinh & another v Ali & another; County Government Of Isiolo & 4 others (Interested Parties) (Environment and Land Appeal E011 of 2025) [2025] KEELC 8247 (KLR)", Case Analysis (2025). Not stated in the judgment (memorandum of appeal dated 24th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8247/eng@2025-11-27

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