Kinuthia (Through the Administrators of his Estate) & 2 others v Anyanga & 4 others

of the 1st and 2nd respondents was null and void, an order for the cancellation of the title; vesting order of the title in their favour; or compensation at the market value of the suit property being Kshs. 160 Million, mesne prots, costs, and general damages. 3. The facts leading to this appeal, according to the appellants, are that the suit property was one of the subdivisions of title originally known as LR No. 28/6, which was owned by Hiram Bere Kinuthia and one, Francis Ngigi Matathia, who are both deceased. The appellants sued the respondents as the personal representatives of the estate of their deceased parents. It was the appellants’ case that their deceased parents were the registered proprietors of all that piece or parcel of land known as L.R No. 28/6, comprising approximately 70 acres and that they held it for an estate in fee simple as joint tenants in common in equal shares. In 1983, they decided to subdivide the parcel of land and in pursuit thereof, submitted a subdivision scheme for approval by both the Commissioner of Lands and the City Council of Nairobi, as was then required. The approvals were granted subject to certain conditions. One such condition required them to surrender LR No. 28/14, 28/11 and 14702/1 which were subdivisions of LR No. 28/6 free of charge to Government as well as City Council of Nairobi for road reserves and for a nursery. Dissatised with the aforesaid conditions of surrender they successfully appealed and the surrender was revoked. However, they later discovered that the suit property had been transferred and registered in the name of one, Joseph Kinyanjui Mwai. They went to court challenging the transaction and on 16th March 2000, the title was quashed and or revoked in Miscellaneous Civil Case No. 1291 of 2000 - Republic vs. The Registrar of Titles, but the 3rd respondent refused to endorse the order in the register of the title. In November 2005, the appellants realized that the suit property had again without their knowledge or consent, been transferred and registered in the names of the 1st and 2nd respondents by the 3rd respondent. The appellants believed that the 1st and 2nd respondents must have colluded with the 3rd and 5th respondents or ocers in the Ministry of Lands, to fraudulently, through misrepresentation and in breach of trust, acquire the suit property. As far as they were concerned, the suit property belonged to them, since they had not surrendered it either to the Government or the City Council of Nairobi as required by law. They consequently went back to the same suit, this time asking that the 3rd respondent show cause why the title was irregularly issued to the 1st and 2nd respondents in contravention of the orders of the court dated 16th March as aforesaid 2000. The court, however, directed them to le a substantive suit against the said respondents. Pursuant to the unsolicited and gratuitous advice aforesaid, the appellants led the suit, the precursor to this appeal. 4. The 1st and 2nd respondents in a joint statement of defence and counterclaim denied the allegations in the plaint asserting that they, trading as Anocma Enterprises Limited, applied to the Commissioner of Lands in 2000 for the allocation of the suit property, which was available as unallocated or un-alienated Government land. They were successful in their bid and were allocated the suit property. After meeting the conditions set out in the letter of allotment they were on 26th November 2001, issued with a title to the suit property and have been in possession since. In their counterclaim, they accused the appellants of fraudulently and illegally interfering with their rights to the suit property. They sought remedies among them a declaration of the validity of the title issued to them; a permanent injunction to restrain the appellants from interfering with their rights over the suit property; general damages; and mesne prots from 2011 to date and interest. 5. The 3rd to 5th respondents also led a joint statement of defence denying the allegations in the reamended plaint. They pleaded that in 1983, the registered proprietors of L.R No. 28/14 applied for its subdivision into several plots. The application was processed and accepted on the terms already stated elsewhere in this judgment. They denied knowledge of Miscellaneous Civil Case No. 1291 of 1999. 6. They asserted that the subdivision scheme was nalized, titles issued to the registered owners, and the suit property was left as Government land. They also stated that they were unaware of Miscellaneous https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1930/eng@2024-12-20 2

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Civil Case No. 1291 of 1999 and disputed the existence, service, and registration of the court order over the suit property allegedly issued on 16th March 2000. They admitted though that the 5th respondent allocated the suit property to the 1st and 2nd respondents on 4th September 2001 and that the Director of Surveys issued Deed Plan No. 238203 for the suit property, with a grant registered as IR 87423 in favour of the 1st and 2nd respondents. They accused the appellants of committing fraudulent acts to secure their registration over the suit property and provided specic details of those alleged fraudulent acts. 7. At the plenary hearing of the suit, Charles Gitonga Kinuthia and the 3rd appellant testied as PW1 and PW2 respectively for the appellants whereas the 1st respondent testied on his own behalf and on behalf of the 2nd respondent. The 3rd to 5th respondents testied through Gildine Gatwiri Karani, Principal Registration Ocer in the oce of the Chief Land Registrar, Ministry of Lands as DW2, and Gordon Ochieng, Director of Land Administration Ocer, Ministry of Lands as DW3. They all reiterated and expounded on what we have already set out above. We therefore need not rehash their evidence. 8. As already stated, upon hearing the suit, the trial court was satised that the appellants’ suit was unmerited and dismissed it but entered judgment for the 1st and 2nd respondents on their counterclaim. The trial court also awarded the said respondents Kshs. 500,000.00 as general damages for the appellants’ indiscretions with regard to the suit property. 9. The appellants, dissatised with the judgment and decree, have appealed to this Court on thirteen grounds which can be compressed into the following, that the trial court erred in both law and fact: by not recognizing that the title to the original parcel of land was never surrendered or vested in the Government; that the dismissal of the appellants’ case and acceptance of the 1st and 2nd respondents’ counterclaim was based on the incorrect assumption that the title of the original parcel of land was vested in the Government and that the 3rd and or 5th respondents had the legal authority to allot and transfer a valid title to the 1st and 2nd respondents; failed to apply the correct statutory law to the dispute, specically the Government Lands Act; did not recognize that the 3rd and or 5th respondents lacked the legal capacity to allot or transfer a valid title to the 1st and 2nd respondents; did not recognize fraudulent actions by the 5th respondent; that even if the trial court correctly found that the appellants had surrendered the property for public use, failed to recognize that the 5th respondent misled the appellants by claiming that the suit property was needed for public use; and failed to uphold the legal principle that courts should not enforce illegal transactions if the illegality is brought to their attention. 10. The appeal was prosecuted through written submissions with limited oral highlights. During the plenary hearing, Mr. Oyatsi, learned counsel appeared for the 1st appellant, Mr. Mwaniki, learned counsel appeared for the 2nd and 3rd appellants, Mr. Abidha, learned counsel appeared for the 1st and 2nd respondents while Ms. Njuguna together with Mr. Motari, learned counsel appeared for the 3rd and 4th respondents. 11. In totality, the appellants’ submissions were that the initial property was registered under the Government Lands Act, and all dealings, including any surrender, were governed by this statute. Relying on the case of Fanikiwa Limited vs. Sirikwa Squatters Group & 20 Others [2023] KESC 58 I KLR, they submitted that the Supreme Court of Kenya had stated that a surrender of land is consensual for its eectiveness. Additionally, that under sections 99 and 100 of the Government Lands Act, a surrender of land under the statute requires the surrender to be valid. That in the present case, there was no valid surrender of the initial parcel of land to the Government as they did not consent to it nor was the consent registered. They emphasized that a surrender could only be valid and admissible in court after being registered in the Government Lands Registry. The appellants contended that a surrender was a factual question that must be proved with a registered instrument of surrender as https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1930/eng@2024-12-20 3

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prescribed by the statute. There was no such evidence, they argued. They submitted that the trial court erred by accepting an undated document as evidence of surrender, which was not even registered in the Government Lands Registry as required by law. They asserted that this document could not therefore, extinguish their title to the original parcel of land. 12. Furthermore, the appellants submitted that the court was prohibited by section 100 of the Government Lands Act from accepting the unregistered document as evidence and relying on it to establish the facts, and this is what exactly happened in this case. They contended that since the parcel of land was never surrendered to the Government under the Government Lands Act, it remained their property under Article 64 of the Constitution. They emphasized that they could not be deprived of their property contrary to Article 40 of the Constitution, as there was no valid surrender to extinguish their land rights or title under section 99 of the Government Lands Act. The appellants claimed that the allotment of the suit property to the 1st and 2nd respondents was therefore null and void under Article 40 of the Constitution and the Government Lands Act. They asserted that the Certicate of Title issued to the 1st and 2nd respondents was unconstitutional and invalid as it defeated the appellants’ right to private property. The appellants pointed out that the letter approving their subdivision scheme required them to surrender a “public purpose plot” to the City Council of Nairobi and the Government. However, the suit property allegedly surrendered for public use, was actually allotted to the 1st and 2nd respondents for private use. This action suggested that the respondents intended to deprive the appellants of their property for illegitimate reasons, dierent from those stated in the approval letter. 13. Finally, the appellants submitted that the 3rd to 5th respondents, as state ocers were bound by the Constitution, including Articles 10, 27, 47, 50, and 232 thereof. They concluded that the attempt to deprive them of their property under the guise of surrendering it for public purposes, when it was actually allocated for private use, constituted fraud. They accordingly urged us to allow the appeal with costs. 14. The respondents’ submissions taken globally were that the appeal was based on a defective notice of appeal which was led more than six months later. Besides, there was no certicate of delay nor did the appellants obtain leave of court to le the notice of appeal out of time. Further, that the 2nd and 3rd appellants did not le any notice of appeal, and therefore, they should not be considered as appellants as indicated in the record of appeal. Their names should in the premises be struck out from the record. 15. It was submitted that the appellants could not address the court on issues not pleaded in the trial court. The issue of whether the suit property was initially surrendered as a public utility plot, was never pleaded nor was the argument that the court failed to apply the proper statutory regime, specically the Government Land Act pleaded nor did the appellants submit on any specic legal regime applicable to the issues before the ELC. Moreover, the respondents accused the appellants of introducing the argument that the 1st and 2nd respondents did not comply with the terms and conditions of the allotment letter, and the introduction of constitutional arguments. All these issues were introduced by the appellants through submissions. They argued that this was improper and should be rejected. They cited cases such as Daniel Toroitich Arap Moi & Another vs. Mwangi Stephen Murithi & Another [2014] eKLR, Patrick Muiru Kamunguna vs. Kaylift Services Ltd & Another [2021] eKLR, and Elizabeth O. Odhiambo vs. South Nyanza Sugar Co. Ltd [2019] eKLR, for the proposition. The respondents submitted that the claim was in any event time-barred, noting that the events in question occurred in 1983 and 1985. The appellants having been aggrieved as aforesaid, should have commenced their claim within 12 years, by 1995 or at the latest by 1997. That the appellants had conrmed that they sought a title for the suit property in their names, but it was never issued because the claim was fraudulent. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1930/eng@2024-12-20 4

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16. Regarding the court’s failure to nd fraud or deceit against the respondents as urged by the appellants, they cited cases such as Vijay Morjaria vs. Nansingh Madhusingh Darbar & Another [2000] eKLR and Kinyanjui Mau vs. George Kamau [2015] eKLR, in asserting that the appellants’ claims were not distinctly alleged and proved. In fact, the claims failed to meet the required threshold. Consequently, the court was correct in rejecting the allegations of fraud, collusion, and breach of trust. 17. The respondents further submitted that the appellants were the ones who in fact were engaged in fraud, illegalities, and misrepresentations. That they had presented evidence before the ELC showing that the appellants fraudulently attempted to subdivide the suit property in 2001 using authority le number 229496, which belonged to grant IR. 87523. Additionally, they asserted that they were not served with court papers in respect of Misc. Application No. 1291 of 1999, which they claimed was fraudulent and intended to support the appellants’ schemes. That in any event, any order or decree arising from such proceedings could not be enforced after 12 years. 18. The respondents agreed with the court’s nding that the suit property was vested in the Government at the time of allocation to them. They noted that the appellants admitted to complying with the conditions attached to the subdivision scheme and the 1st appellant acknowledged that he could not vouch for the process of the alleged revocation of the surrender as he was not involved in the subdivision process, a position also taken by the 2nd appellant. He conrmed that after complying with the subdivision conditions, they were issued with titles for all other subdivisions except the suit property. The respondents argued that the appellants failed to prove their contention that their deceased parents were dissatised with the conditions of surrender of the suit property and successfully appealed against it. They emphasized that it was the appellants’ duty to prove their claims, and the burden could not shift to the respondents to disprove the allegations. Citing various cases, including Chief Land Registrar & 4 Others vs. Nathan Tirop Koech & 4 Others [2018] eKLR and Fanikiwa Limited vs. Sirikwa Squatters Group & 20 Others (supra), the respondents submitted that the appellants admitted during the hearing and in their submissions that the letter dated 28th May 1985, proving revocation of the surrender was in respect of LR No. 28/12 and not the original parcel in question, and the claim of a typographical error was unsubstantiated. Consequently, the Court below rightly held that there was no variation or revocation of the terms and conditions of surrender. 19. The respondents emphasized that the surrender documents were tendered in evidence by the appellants, which had been prepared by J. M. Okungu, Senior Registrar of Titles, and signed before their advocate Mr. Oyatsi, and stamped. 20. It was submitted that the trial court was correct in nding that the suit property was available for allocation and that the counterclaim was merited. They concluded by submitting that the court’s ndings were correct, as the appellants failed to prove their allegations. They, therefore, prayed for the dismissal of the appeal with costs. 21. This being a rst appeal, parties are entitled to and indeed expect a rehearing, re-evaluation, and reconsideration of the entire evidence tendered in the trial court afresh and a determination of this Court thereon. In other words, a rst appeal is by way of retrial and this Court, as the rst appellate court, has a duty to re-evaluate, re- analyze, and re-consider the evidence and draw its own conclusions, of course, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR and Seascape Ltd vs. Development Finance Company of Kenya Ltd (2009) KLR 384. 22. We have considered the record of appeal in the light of our mandate set out above, the rival submissions and principles of law applicable, and in our view, the issues that fall for our determination are whether: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1930/eng@2024-12-20 5

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the appellants surrendered the original grant in respect of LR 28/14 to the Government; the suit property was available for allocation to the 1st and 2nd respondents; and lastly, whether the trial court was in error in entering judgment in favour of the 1st and 2nd respondents on the main suit as well as on the counterclaim. 23. However, before we delve into the determination of the issues as framed, there are peripheral matters raised by the respondents that we need to dispose o. The respondents submitted that the appeal is anchored on a defective notice of appeal as it was led out of time by six months. Secondly, they submitted that the 2nd and 3rd appellants never led a notice of appeal and were therefore wrongly enjoined in the appeal and should not be heard. Our quick response to the foregoing is that under the rules of this Court and in particular rule 84, defects in the record of appeal such as the ones alluded to by the respondents, the aected party is entitled to apply to this Court within thirty days of service upon it, of the notice of appeal or record of appeal to have it struck out on that basis. That provision is in mandatory terms. The respondents having failed to take advantage of it, cannot be heard to raise it now. It is taken that they waived that right. 24. We would also agree with the 1st and 2nd respondents having looked at the record of the trial court that the issues such as the suit property having been reserved for public utility; the requirement that the process of alienation of the suit property ought to have complied with the provisions of the Government Lands Act; violation of the appellants’ constitutional rights and the 1st and 2nd respondents having failed to comply with the terms and conditions of the letter of allotment was never raised in the trial court. Neither were they pleaded and evidence led in that regard. The same goes for the claim that the suit was time-barred by virtue of the Limitation of Actions Act. They are all being raised for the rst time in this appeal and in submissions. They cannot, therefore, fall for our interrogation. Submissions cannot replace pleadings! Cases are determined on the basis of the parties pleadings, the evidence led or adduced, and the applicable law. Submissions, no matter how weighty and persuasive can only aid to bolster a case and not to prove it. In the case of Daniel Toroitich Arap Moi vs. Mwangi Stephen Murithi & Another [2014] eKLR, this Court stated: “ ….Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in the submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties ‘marketing language’, each side endeavouring to convince the court that its case is a better one. We reiterate, that submissions do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based on evidence presented...” 25. Back to the rst issue framed, it is not lost on us that land ownership and land rights are both historical and emotive subjects in this country. A right to hold property is a constitutional right as well as a human right and no person can be deprived of his property except in accordance with the provisions of the Constitution or any other Statute or written law. The condition precedent to taking away anyone's property is that the authority must ensure compliance with the Constitution and statutory provisions. 26. As already stated, LR No. 28/6 was originally registered to the now- deceased parents of the appellants. Through Ramcon Limited, they prepared a subdivision scheme for the parcel of land and sought approval from both the Commissioner of Lands and the City Council of Nairobi. The approvals were granted on conditions already set out elsewhere in this judgment. Having accepted the conditions, they went ahead with the subdivision, and the suit property was a result of the subdivision. The appellants assert ownership of the suit property on the basis that there was no valid surrender of the original parcel of land to the Government and or City Council of Nairobi, by them in accordance with the https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1930/eng@2024-12-20 6

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Government Lands Act. On the other hand, the 1st and 2nd respondents assert their entitlement to the suit property on the basis of a letter of allotment, issued to them by the 5th respondent followed by a grant of Certicate of Title after due process. On their part, the 3rd to 4th, 5th respondents argue that the suit property was legally and procedurally surrendered to the Government by the registered proprietors and allotted to the 1st and 2nd respondents following due process. 27. In a letter dated 25th July 1983, the Commissioner of Lands informed Ramcon Limited that the approval of the subdivision scheme was subject to some portions thereof being surrendered to the City Council of Nairobi and the Government at no cost. Subsequently, on 22nd June 1984, the City Council of Nairobi conrmed to the Commissioner of Lands that they had no objection to granting nal approval for the subdivision scheme, provided the conditions of surrender were met. 28. The City Council of Nairobi letter clearly aligns with the conditions set out in the 25th July 1983 letter by the Commissioner of Lands. The appellants' reliance on the letter dated 28th May 1985 challenging and or impugning the surrender, is irrelevant since it was in relation to, or in respect of LR No. 28/12, a totally dierent parcel of land and not the subject parcel of land. In which case then, that letter does not alter the terms and conditions of the subdivision as approved by the Commissioner of Lands and the City Council of Nairobi. It is common ground that the original parcel of land was subdivided and the resultant subdivided parcels transferred to third parties including the suit property. Those subdivisions could only have been undertaken after the title 28/6 had been surrendered to the Government and City Council of Nairobi as required by the terms and conditions set out in the letters of approval aforesaid. Given the foregoing, the appellants cannot be heard to claim that there was no surrender when in eect, they are some of the beneciaries of the subsequent subdivisions following the surrender. The appellants cannot be allowed to approbate and reprobate at the same time. They cannot be heard to say that there was no surrender or that there was surrender but with varied conditions and or that the surrender was not registered. To our mind and on the evidence on record, we have no doubt at all that there was surrender. This is because it is common ground that there was subdivision after all and it could not have happened without surrender. The acceptance and compliance with the conditions for subdivision approval eectively meant they surrendered the parcel of land to the Government. This was formalized by a surrender document duly executed on 7th November 1998 before the appellants’ own advocate, Mr. D. Oyatsi. 29. It is not lost on us that during the hearing of the suit, the appellants raised the issue of the surrender having been revoked on appeal as they felt that the terms imposed for the surrender were onerous. However, they never brought forth any evidence, documentary or otherwise in support of the assertion. Indeed, under cross- examination, both appellants conceded that they could not vouch for the alleged revocation of the surrender, as they were not involved in the subdivision process. We would therefore agree with the respondents’ submissions that the trial court was right in holding that there was no recall of the surrender and that the surrender was in accordance with the conditions stipulated in the letters approving the subdivisions with no changes or alterations in the terms whatsoever. 30. On the question of want of registration of the surrender documents, we would agree with the trial court’s reliance on this Court’s decision in Mwinyi Hamisi Ali vs. Attorney General - Civil Appeal No. 125 of 1977, in concluding that lack of registration of the surrender documents was neither here nor there and did not void the transaction. This Court, in the aforementioned case, emphasized that the lack of registration of a surrender document does not invalidate the de facto surrender. The Supreme Court of Kenya weighed in with a similar position in Republic vs. Registrar of Titles & Another Ex parte David Gachine Muruthi (2014) eKLR, when it reiterated that the lack of formal registration of the surrender document does not necessarily invalidate the actions taken by the Commissioner or other relevant authorities, provided that the actions were within their legal mandate. In Kiluwa Limited & https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1930/eng@2024-12-20 7

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Another vs. Commissioner of Lands & 3 Others [2015] eKLR, this Court dierently constituted held that the surrender of land to the Government was a condition precedent for subdivision approval. 31. We are aware that unlike land compulsorily acquired under the Land Acquisition Act, once the land is surrendered, the owners do not retain the reversionary interest in the event that the purpose for which it was surrendered does not come to pass. Accordingly, the appellants cannot claim the title to the suit property on account of reversionary interest. The appellants’ argument that the suit property having been surrendered for public utility could not be converted to private property, although we have already discounted that notion elsewhere in this judgment, the appellants' claim would still have fallen on this ground alone. Further, and as was held in John Mbugua Getao vs. Simon Paroiyet Mokare & 4 Others [2020] eKLR, which case involved the surrender of land to the Government as a condition for subdivision, the Supreme Court ruled that the surrender was valid and necessary for the subdivision approval. 32. These cases illustrate the consistent application of the principle that land surrender to the Government, as a condition for subdivision approval, is binding and enforceable. In the circumstances of this case, even if the surrender was not registered, we would invoke the maxim of equity which states that equity treats as done that which ought to have been done. 33. Given our above analysis, we resolve the rst issue in the armative. 34. So was the suit property available for allocation to the 1st and 2nd respondents? We have already determined that the original parcel of land from which the suit property was excised was legally surrendered to the Government. The 1st and 2nd respondents, operating as Anocma Enterprises Limited, applied for its allocation as unalienated Government land. On 4th September 2001, the 5th respondent allocated the suit property to them. The 3rd and 5th respondents presented evidence that the 1st and 2nd respondents complied with all the conditions of allotment. Gildine Gatwiri Karani provided the registration details of the suit property and conrmed that the suit property was allocated to the two respondents by the Commissioner of Lands and registered in the Department. Gordon Ochieng, also testied that LR No. 28/14 was surrendered to the Government of Kenya for free. He explained that the original land was subdivided based on the terms and conditions set by the City Council of Nairobi and the 5th respondent. He reiterated that the appellants had beneted from these subdivisions as well and cannot, therefore, be heard to complain that there was no surrender or that the allocation of the suit property to the 1st and 2nd respondents was illegal, unlawful or even fraudulent. That indeed, the 1st and 2nd respondents were now the registered proprietors of the suit property after due process. 35. The Government Lands Act (repealed), which was the Act in force at the eective date dened ‘unalienated Government land’ in section 2 as follows: “ unalienated Government land” means Government land which is not for the time being leased to any other person, or in respect of which the Commissioner has not issued any letter of allotment.” 36. Section 3 of the Physical Planning Act, on the other hand, denes un-alienated land in similar terms. The Supreme Court in Kiluwa Limited & Another vs. Business Liaison Company Limited & 3 Others (supra), had this to say about un-alienated Government land: “ A number of conclusions can be derived from the foregoing provisions as quoted. Firstly, un-alienated Government land is public land within the context of article 62 of the Constitution and the Government Lands Act (repealed). This notwithstanding the fact that, the expression “Public Land” only came to the fore with the promulgation of the 2010 https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1930/eng@2024-12-20 8

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Constitution. What Article 62 of the Constitution does is to clearly delimit the frontiers of public land by identifying and consolidating all areas of land that were regarded as falling under the province of “public tenure”. The retired constitution used the term “Government” instead of “public” to dene such lands”. In view of these dealings, could the suit property retain the status of “unalienated Government land”? The answer to this question must be in the armative considering the fact that once the appellants surrendered the title for purposes of subdivision the land then acquired the status of unalienated Government land which was available for alienation by the 5th respondent. Such allotee upon registration of title, in accordance with the provisions of the applicable law, transmutes from “public” to “private” land. Having found that the original parcel of land from which the suit property was a subdivision had been legally and procedurally surrendered to the Government at no cost and without preconditions, the appellants have no claim over it or the resulting subdivisions, nor can they claim the same on the basis of a reversionary interest. 37. From the long interrogation of the evidence and issues in dispute, we are satised that the suit property was available for allocation and the 5th respondent therefore had the authority, to allocate it to any person as he did here. By the same token, there being no evidence of fraud, illegalities, and misrepresentations on the part of any of the respondents, we nd that the suit property was properly allocated and that the 1st and the 2nd respondent acquired a valid title. We note that though the appellants had pleaded fraud, illegalities, and misrepresentations and given particulars thereof, at the hearing they were unable to prove any of the claims and the trial court was therefore right in rejecting the allegations. 38. In the end, we are satised that the trial court did not err at all in dismissing the suit by the appellants and entering judgment in favour of the 1st and 2nd respondents on their counterclaim. 39. The upshot is that the appeal is devoid of merit and is accordingly dismissed with costs. DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER 2024. ASIKE-MAKHANDIA ………… JUDGE OF APPEAL ALI-ARONI ………… JUDGE OF APPEAL L. ACHODE ………… JUDGE OF APPEAL I certify that this is a True copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1930/eng@2024-12-20 9

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