Mutahi v Njoroge & 3 others

served and served through his legal representative. The matter proceeded as an undefended action against the 1st defendant. The 2nd, 3rd, and 4th defendants appeared and submitted their defense on 29 May 2019. 3. The matter proceeded to a hearing, during which the plainti, Charles Mutahi Mwangi, testied as the sole witness. He adopted his witness statement dated 30 April 2019, along with a list of documents dated the same day, which were marked and admitted into evidence as plainti exhibits 1-5, in the order listed. 4. In summary, the plainti testied that he was allocated a parcel of land known as Lamu/Lake Kenyatta I/2920, fullled all the stipulated requirements outlined in the oer, and was subsequently issued the corresponding documents, namely, a letter of charge, a discharge of charge, and a certicate of outright purchase by the 2nd defendant. Despite complying with all conditions subsequent to the issuance of the letter of oer, the 2nd defendant unlawfully registered the aforementioned parcel of land in the name of the 1st defendant. 5. The 2nd, 3rd, and 4th defendants also presented a single witness, Mr. Ahmed Mohammed, Senior Deputy Director and Land Adjudication and Settlement Ocer, Lamu. He testied and relied on the statement led on 15 December 2022. He also submitted documents numbered 1 through 5 as defense exhibits in the specied manner. 6. He testied that the plainti was allotted the suit property in 1978, satised all conditions, but failed to settle and cultivate the land. In 1995-1996, when a Taskforce appraised the Lake Kenyatta Settlement Scheme, where the suit property is located, it found that the 1st defendant was occupying and developing the land. In 1997, the 1st defendant was allocated the land, fullled all conditions, and a discharge of charge was issued to him. The title was granted to him on August 28, 2006. 7. At the conclusion of both the plainti's and the 2nd to 4th defendants' cases, I received submissions from learned counsel for the plainti, Mr. Komora, and learned state counsel for the 2nd to 4th defendants, Mr. Munga, with great appreciation, as these contributions signicantly aided the court in resolving the issues presented in the suit. 8. The issues arising from the materials and submissions presented to me, which I now delineate for the court's determination, can be succinctly summarized as follows: whether the plainti has demonstrated entitlement to the reliefs sought in light of noncompliance and the statutory requirements governing settlement schemes in Kenya; whether the plainti can invoke equitable doctrines of legitimate expectation or bona de purchaser/allottee status in the absence of compliance with settlement conditions; and who should bear the costs of the suit. 9. I will discuss the issues framed issues simultaneously, as they are intertwined. 10. It is uncontested that the plainti was initially allocated the suit property in 1978. He satised the conditions outlined in the letter of oer and was granted outright purchase by the 2nd defendant. Conversely, it is also undisputed that the 1st defendant was found to have been occupying the suit property as at 1987 and developing it; he was issued a letter of oer, fullled all stipulated conditions, and, consequently, a title deed was issued to him in 2006. 11. Mr. Komora, in his submissions on behalf of the plainti, asserts that the title issued to the 1st defendant was obtained through misrepresentation. Its root is tainted. He argues that the 1st defendant, an employee of the plainti, exploited the plainti, misrepresented himself to the ocials of the 2nd defendant, undertook a parallel process, was aware that the land should have been registered in the name of the plainti, and had himself registered as the proprietor of the disputed property. Therefore, the validity of the title held by the 1st defendant is questionable and ought to be rescinded https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18622/eng@2025-12-11 2

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(Daudi Kiptugen v Commissioner of Lands & 4 others [2015] eKLR and Munyu Maina v Hiram Gathika Maina [2013] eKLR). Additionally, he requests that the plainti's reliefs be granted. 12. Conversely, Mr. Munga, representing the 2nd to 4th defendants, maintains that the mere issuance of a letter of oer does not, in and of itself, confer absolute ownership. It is well-established law that allotment remains provisional and is contingent upon strict adherence to the conditions of the settlement scheme. Refer to Wreck Motors Enterprises v Commissioner of Lands & Others [1997] eKLR. 13. He further asserts that failing to cultivate, construct, or fence the land renders the plainti ineligible for ownership. Settlement schemes are designed not for speculative holding or mere possession, but for productive use and occupation. See Bwonde (suing as the administrator of the Estate of Peter Remington Bwonde) v County Land Adjudication & Settlement Oce, Trans-Nzoia, and three others; and Okero and another (Interested Parties) [2025] KEELC 3043 (KLR). 14. According to the plainti's testimony and his led statement, which are on record, the plainti acknowledges that the allotment was made in 1978. He states that he took possession, commenced paying the SFT fund, and concluded payment in 1986. According to the record, payments were made on 17 June 1986 and 19 September 1986. A certicate of outright purchase was issued on 13 May 1987. He said he took the discharge of charge to the relevant Lamu oces in 2000, but it was never registered, preventing him from obtaining a title document. 15. I agree with Mr. Munga that the plainti is in this court as a genuine allottee under the SFT program, which requires conditions to be fullled before title is issued, yet still refuses to accept all the conditions that come with such rights. Section 1(c) of the Settlement Scheme Conditions invited an allottee to actively cultivate the land, put up fencing, build a dwelling, and show real development. These were not merely friendly suggestions but mandatory obligations—crucial steps that turn a temporary allotment into permanent, vested ownership. 16. The plainti, who was allotted this land back in 1978, did not meet all the conditions outlined in the letter of oer—except for the nancial requirements, which were fullled much later. He has not cultivated the land, built a house, or even installed a fence post. Yet, he is seeking recognition as a bona de allottee. An allotment letter, per se, does not confer ownership unless the attendant conditions are met. 17. In Wreck Motors Enterprises v Commissioner of Lands & Others [1997] eKLR, the Court of Appeal held that an allotment letter is conditional and does not confer title unless conditions are met: “ In our view, the endorsement or the appending of his signature by H.E. the President on the applications to the Commissioner of Lands for the suit plot or for that matter any other unalienated Government Land is not sucient to grant title over any land to anyone. H.E. the President only approves the application for consideration by the Commissioner of Lands for allocation of any such property. It does not amount to the applicants obtaining title to such lands. Title to landed property normally comes into existence after issuance of a letter of allotment, meeting the conditions stated in such a letter and actual issuance thereafter of title document pursuant to provisions held. See Dr. Joseph N.K. Arap Ng'ok v Justice Moijo ole Keiwua & 4 Others, Civil Application No. NAI.60 of 1997 (unreported). “ 18. According to the regulations established by the Settlement Fund Trustees (issued pursuant to the Agriculture Act), each allotment of land under a settlement scheme was subject to explicit and implicit conditions, including cultivation, construction of a house, fencing, and payment of installments. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18622/eng@2025-12-11 3

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The Land Utilization and Settlement Rules, 1962 (made under the Agriculture Act, Cap 318), Rule 5 sets the conditions for allotments/leases in approved settlement schemes (tenant farming scheme): personal occupation, good husbandry, maintenance of improvements, inspections, consent controls, termination for breach, etc. These are the “express and implied conditions” of settlement and occupation. 19. The plainti states that he completed payment of the SFT funds and discharged the suit property. The record shows he did so in 1986. However, he has not addressed compliance with other conditions, such as cultivating the land, building a house, or installing fencing. Instead, from the evidence on record, he says that immediately after the land was allotted to him, he was young, his parents were sickly, and he went to stay with them in the upcountry. He never settled on the land; within 6 months, instead, he says, he left it to the 1st defendant to look after it on his behalf. As stated, the allotment was done in 1978, the payment in 1986, the outright certicate of purchase in 1987, and the discharge in 2000.Then a long delay until 2019, when this suit was led. 20. These requirements were not to be fullled selectively; according to the oer (allotment letter), the plainti had not met all the conditions, resulting in the loss of his bona de allottee status. This is because there was no credible evidence of cultivation, development, fencing, or construction on the parcel. Failing to meet these conditions means the allotment cannot convert into full ownership. 21. Settlement schemes were not intended for speculative holding or idle possession but for productive use and occupation. In Bwonde (Suing as the administrator of the Estate of Peter Remington Bwonde) v County Land Adjudication & Settlement Oce, Trans-Nzoia & 3 others; Okero & another (Interested Parties) [2025] KEELC 3043 (KLR), the court noted that the obligation required, within six months, the cultivation of at least one acre, the construction of a dwelling house, and the erection of a fence. A breach of these conditions rendered the land liable to forfeiture to SFT. 22. Although the plainti had a legitimate expectation of obtaining title after paying all the SFT monies, and although I reckon he was not served with notice to fulll the conditions attached to the oer, the plainti cannot invoke the equitable principle of legitimate expectation or bona de allottee status to justify noncompliance. Equity favors those who act diligently, not the indolent. The plainti, having failed to occupy, cultivate, construct, or fence the land, cannot invoke equitable protection because he never acted to actualize the allotment. Equity will not assist a litigant who has slept on his rights or who has not complied with the conditions that give rise to the right relied upon. Where a letter of oer is conditional and the allottee does not fulll the conditions and/or unduly delays before seeking relief from the court, equity ordinarily refuses relief. The maxim “equity aids the vigilant, not the indolent” applies. 23. In Torino Enterprises Limited v Attorney General [2023] KESC 79 (KLR), the Supreme Court claried that an Allotment Letter is not a land title and cannot grant any property rights. It functions only as an oer that remains conditional until the specied conditions are met. Equity also requires that those seeking equitable relief must act with good faith. The plainti failed to meet the conditions outlined in the Allotment Letter and cannot seek remedies in court while acting in bad faith. The oer became invalid when, in 1987, a ground report revealed he had never taken possession of the land. Instead, the 1st defendant had occupied and developed the land, and later oered it, meeting all conditions and receiving the title to it. 24. I also believe that the 1st defendant's long-term occupation of the suit property is signicant. Since the oer was made to the plainti in 1978 and the plainti has never settled on this land, equity— as enshrined in Article 10 of the Constitution—would abhor the issuance of eviction orders or the cancellation of the 1st defendant's title. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18622/eng@2025-12-11 4

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25. In light of the foregoing, the plainti's suit is hereby dismissed with costs. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON DECEMBER 11, 2025. E. K. MAKORI JUDGE In the presence of: Ms. Lutta for the 2nd-4th Defendants Jill: Court Assistant In the absence of: Mr. Komora for the Plainti https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18622/eng@2025-12-11 5

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