Njuguna v Macharia

2. e. The learned magistrate erred in law and fact by determining that the respondent is legally entitled to benet from the equitable doctrines of constructive trust and proprietary estoppel. f. The Learned Magistrate erred in law and fact by ruling that the appellant’s certicate of title for the suit property was obtained unlawfully, without any credible or substantial evidence of the alleged irregularities. The appellant therefore requests the following orders on appeal: a. This appeal should be allowed. b. The court overturns the trial court's judgment dated September 13, 2024, and its subsequent orders. c. The respondent shall bear the costs of the appeal. 3. The appeal was canvassed through written submissions. I acknowledged the submissions from learned counsel, Mr. Oduol, for the appellant, and Mr. Kariuki, for the respondent. 4. From the beginning, I want to thank the counsels for their diligence and research, which are evident in their submissions and helped this court resolve the issues raised in the appeal. 5. This being a rst appeal, the authority of this court to review evidence from the lower court should be exercised with caution when necessary. In Peters v Sunday Post Limited [1958] EA 424, the court stated as follows: “ It is a strong thing for an appellate court to dier from the ndings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a dierent conclusion…” 6. The duty of this court in the appeal is therefore to re-examine the evidence, assess it independently, and arrive at its own conclusions. This careful process, as outlined in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, ensures that all aspects of the case are thoroughly reviewed and considered. “ ...this court is not bound necessarily to accept the ndings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briey put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..." 7. According to the appeal record, both the appellant and the respondent are involved in litigation over the suit property Lamu / Mpeketoni Town / 151. It is undisputed that the property was initially called UNS. Residential Plot No. 54 Mpeketoni – Lamu, later known as Plot Number 124 Mpeketoni Township, and is now registered as Lamu / Mpeketoni Town / 151. 8. The initial oer appears to have been extended to two individuals, Abdalla M. Abdalla and Fatuma Bakari Bwanshee, who later transferred their interests before registration to the parties now involved in this litigation. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18633/eng@2025-11-20 2

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9. The appellant, Joseph Kamande Njuguna, led a suit in the lower court seeking injunctive relief against the respondent to prevent interference with the suit property. 10. It is acknowledged that, during the relevant period, the respondent continuously occupied, possessed the property, resided there, and carried out developments for over twenty years. 11. The appellant, formerly the 1st defendant in the counterclaim, testied that he obtained the suit property from Michael Wanjohi Mbui, who was the 2nd defendant in the counterclaim at the lower court. 12. Furthermore, he stated that the aforementioned Michael Wanjohi Mbui also acquired ownership of the property from Fatuma Bakari Bwanshee, who testied as the appellant’s witness PW2. To support his claim of lawful ownership, the appellant testied that PW2, Fatuma Bakari Bwanshee, was the original owner of the suit property, as shown by a letter of allotment dated July 15, 1998, which he submitted as an exhibit. PW2, Fatuma Bakari Bwanshee, conrmed this during her testimony. 13. Conversely, the respondent challenged the evidence submitted by the appellant through a counterclaim led via an originating Summons (OS). 14. In the OS before the trial court, the respondent led legal proceedings against the following defendants in the counterclaim: Joseph Kamande Njuguna as the 1st defendant, Michael Wanjohi Mbui as the 2nd defendant, Fatma Abubakar Bwanshee as the 3rd defendant, Land Registrar Lamu as the 4th defendant, and the Chief Land Registrar as the 5th defendant. 15. The respondent counter-claimant requested and was granted permission to serve the summons for entering an appearance through substituted service by newspaper advertisement. The 2nd defendant, Michael Wanjohi Mbui, and the 3rd defendant, Fatma Abubakar Bwanshee, declined to enter an appearance. 16. An application for default judgment was subsequently led and endorsed by the court. The respondent requested that the court nd that the suit property is located within an area comprising parcels of land where the government was allocating land to settlers already in possession and occupation. 17. Additionally, the respondent sought a declaration that the appellant had fraudulently acquired registration of the suit property by misleading the Land Registrar into believing he had purchased the interest in the property through a letter of allotment issued to Fatma Abubakar Bwanshee. It was emphasized that the allotment letter presented by the appellant was issued to and concerns an individual named Fatma Abubakar Bwanshee, which diers from the name of the appellant's witness, PW2, who is Fatuma Bakari Bwanshee. She identied herself using her Identication Card and adopted her witness statement, both of which listed her name as Fatuma Bakari Bwanshee. Consequently, in the absence of the original allottee, Fatma Abubakar Bwanshee, the transfer of the interest was deemed fraudulent and could not be legitimized. 18. It was further argued that the Land Registrar was misled, deceived, or had knowingly participated in the fraudulent registration of the suit property in the name of the appellant Joseph Kamande Njuguna. 19. The government's goal regarding the land parcels was to identify landholders, issue allotment letters, and ultimately provide titles to facilitate land settlement. 20. Based on the facts, grounds for appeal, and submissions from the parties, I identify the following issues for the court's determination: whether the trial magistrate erred in assuming jurisdiction by hearing the suit based on adverse possession as a counterclaim; whether the trial magistrate wrongly concluded that the appellant’s title was extinguished by adverse possession; whether the appellant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18633/eng@2025-11-20 3

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unlawfully and irregularly acquired the property; and whether the respondent’s title was illegally obtained. Additionally, who should bear the litigation costs? Did the Trial Magistrate err in law and fact by assuming jurisdiction to hear and decide the suit of adverse possession raised through a counterclaim? 21. Concerning the jurisdiction of the trial magistrate to preside over cases involving adverse possession, Mr. Oduol, the distinguished counsel representing the appellant, cited numerous judicial precedents demonstrating that the trial magistrate lacked jurisdiction to entertain the matter before him. Conversely, Mr. Kariuki, the esteemed counsel for the respondent, presented a comprehensive argument, citing relevant judicial precedents on proof of adverse possession in a trial. He asserted that the magistrate was explicitly gazetted to hear and determine Environment and Land (ELC) matters pursuant to Section 26 of the ELC Act, within the pecuniary jurisdiction delineated under the Magistrates Act, 2015. 22. In addressing this matter, the record indicates that this issue was not among the considerations the trial magistrate was obliged to examine during the hearing and drafting of his judgment, and it was never raised at that stage. This was due to conicting jurisprudence over whether magistrates have the power to adjudicate such claims. This situation arises from divergent decisions on this subject issued by the ELC over time, as exemplied by the Court of Appeal in the subsequent discourse. 23. The trial court rendered its judgment on September 13, 2024. As articulated, magistrates have been actively engaged in adjudicating adverse possession claims, as claried by the Court of Appeal in Sugawara v Kiruti (sued in her capacity as the administratrix of the estate of Mutarakwa Kiruti Lepaso, alias Mutaragwa Kiruti Lepaso, alias Mutaragwa Kiroti Leposo, and in her personal capacity) & 3 others [2024] KECA 1417 (KLR), a decision issued by the Court of Appeal on October 11, 2024, as follows: “ Having said that, did the Magistrates’ Court have jurisdiction to hear and determine claims for adverse possession? The question of whether the Magistrates’ courts have jurisdiction to hear and determine some claims has recently become a vexing question for courts following the establishment of the Environment and Land Court under article 162(2)(b) of the Constitution 2010 to hear and determine disputes relating to the environment, use and occupation of and title to land, and the expansion of the hearing and determination of land disputes to the Magistrates courts. 32. Section 13 of the Environment and Land Court Act provides that: “The court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) In exercise of its jurisdiction under article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes— (a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals, and other natural resources; (b) relating to compulsory acquisition of land; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18633/eng@2025-11-20 4

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33. 34. (c) relating to land administration and management; (d) relating to public, private, and community land and contracts, choses in action, or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land.” Whereupon, section 26(3) and (4) of the Environment and Land Court Act, 2011 provides that: “(3) The Chief Justice may, by notice in the Gazette, appoint certain magistrates to preside over cases involving environment and land matters of any area of the country. 4. Subject to article 169(2) of the Constitution, the Magistrate appointed under sub-section (3) shall have jurisdiction and power to handle — a. disputes relating to oences dened in any Act of Parliament dealing with environment and land; and b. matters of civil nature involving occupation, title to land, provided that the value of the subject matter does not exceed the pecuniary jurisdiction as set out in the Magistrates' Courts Act.” These provisions are replicated under section 9(a) of the Magistrates’ Courts Act, 2015, which gives the Magistrate’s Court jurisdiction over environment and land matters. It is provided inter alia that: “A magistrate's court shall, in the exercise of the jurisdiction conferred upon it by section 26 of the Environment and Land Court Act (No 19 of 2011) and subject to the pecuniary limits under section 7(1), hear and determine claims relating to — 35. i. environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals, and other natural resources; ii. compulsory acquisition of land; iii. land administration and management; iv. public, private, and community land and contracts, choses in action, or other instruments granting any enforceable interests in land; and v. environment and land generally. Over time the Chief Justice has variously gazette notices, and made appointments pursuant to section 26(3) and (4) of the Environment and Land Court Act, 2011. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18633/eng@2025-11-20 5

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36. Subsequently, the jurisdiction of the Magistrates’ Courts to hear and determine disputes relating to environment and the use and occupation of, and title to, land was endorsed by this court in the case of Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others [2017] eKLR. 37. However, the distinctive issue in this appeal is concerned with a claim for adverse possession and whether, under section 9(a) of the Magistrates’ Courts Act, magistrates can determine such claims. It is instructive that, a consideration of jurisprudence on this issue since the expansion of environment matters to Magistrates’ courts clearly demonstrates that the decisions on this issue are not in accord. A sampling of case law on the question makes this quite evident. 38. For instance, there are decisions that have reached the conclusion that the Magistrates' Court has jurisdiction to hear claims for adverse possession. For instance, in the case of Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & another [2020] eKLR, DO Ohungo, J held: “Based on the express provisions of section 26(3) and (4) of the Environment and Land Court Act, 2011 and section 9(a) of the Magistrates’ Courts Act, 2015, the principles of interpretation of the Constitution as well as the principles of the Constitution such as devolution, access to services and access to justice for all persons, to nd as I hereby do, that so long as presided over by a magistrate who is duly gazetted under section 26(3) of the Environment and Land Court Act, 2011 and who has the requisite pecuniary jurisdiction, magistrates’ courts have jurisdiction and power to handle cases involving claims of adverse possession.” 39. This decision was followed in the cases of Philip Kithaka v Mercy Karimi Nyaga [2021] eKLR and Christopher Kangogo Cheboiboch v Susan Chepichi Chepkiyeng [2021] eKLR both decisions were rendered by LN Mbugua, J. 40. Other decisions of the Environment and Land Court hold contrary views, which seems to be the more predominant position. It was held in the case of Jesee Njoroge Gitau v Kibuthu Macharia & another [2019] eKLR, that: “It is clear from the above provisions of the law that the Magistrate’s court has no jurisdiction to try matters where a party is seeking adverse possession. Indeed, if both matters had been led in this court, the best order suited to issue upon this application would have been an order for consolidation of both the matters. However, this is not the case in question.” 41. In the case of Michael Chebii Toroitich v Peter Mogin Yatich Chebii [2013] eKLR, M Sila, J held: “The matters in issue in Iten RMCC No 9 of 1994 and in the land disputes tribunal, in my view, were whether the defendant holds a half share of the land in trust for the plainti. The question whether the plainti is entitled to the suit land by way of adverse possession never arose in those proceedings. Indeed, they could not have arisen, as the Magistrate's court does not have jurisdiction to entertain a claim of adverse possession. Neither could adverse possession have been made a ground of attack or defence in those two proceedings. The https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18633/eng@2025-11-20 6

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issue of adverse possession could not have been raised and was never raised in those proceedings.” 42. Similarly, in the case of Njoki Wainaina v Josephat Thuo Githachuri & 3 others; National Land Commission & another (Interested Parties) [2021] eKLR Mboya, J held that: “The magistrate’s court is not seized with jurisdiction to adjudicate upon claims founded on adverse possession on the face of the explicit provisions contained in sections 37 & 38 of the Limitation of Actions Act.” 43. Recently, in the case of Reuben v Mwangangi & 7 others (Environment & Land Case E011 of 2023) [2023] KEELC 21899 (KLR), Yano, J expressed: “I am aware that there exists within the magistrate’s court, duly gazetted magistrates who are granted jurisdiction and power to handle cases involving occupation of and title to land. I am, however, not persuaded that the magistrates' courts have jurisdiction to adjudicate title on account of adverse possession. It is therefore my nding that the learned trial magistrate rightly declined jurisdiction over the respondents’ claim of adverse possession”. 44. The controversial question of jurisdiction of the Magistrates’ Courts in claims for adverse possession emanates from sections 37 and 38 of the Limitation of Actions Act, where it is specically provided that such claims are to be heard by the “High Court”. 45. In particular, section 38 of the Limitation of Actions Act provides: 46. “(1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land. (2) ………………………………………………. (3) ……………………………………………….. (4) The proprietor, the applicant, and any other person interested may apply to the High Court for the determination of any question arising under this section. (5) ………………………………………………………….” In other words, reference is to the “High Court” as the court to which such cases are heard, and given the dictates of the Constitution set out above, this should be construed to mean the “Environment and Land Court”, as being the court donated with jurisdiction to hear and determine matters pertaining to adverse possession of land. The eect of this interpretation is that it is only the Environment and Land Court established under article 162(2)(b) that is mandated to hear these cases. So that, notwithstanding the expansion of the jurisdiction of environment and land usage to Magistrates Courts, it is distinctive that under section 9(a) of the Magistrates Courts Act, various https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18633/eng@2025-11-20 7

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matters are specied for determination, but claims for adverse possession are not included. 47. In the case of Republic v Karisa Chengo & 2 others [2017] eKLR, this Court held that: “A court’s jurisdiction ows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 24. 48. It is our view that, if it was intended that claims for adverse possession be determined by the Magistrates’ Court, nothing would have been easier than for Parliament to have expressly enacted such a provision. So that in view of the express provisions of the law, a strict interpretation of section 38 would mean that hearing and determination of such matters is specically limited to the Environment and Land Court to the exclusion of the Magistrates’ Court. 49. We come to this conclusion also bearing in mind that the jurisdiction of Magistrates’ Courts is largely determined by the pecuniary interest designated for determination by each level of the Magistracy specied in the hierarchy of courts, in terms of section 7 of the Magistrates' Courts Act. In claims for adverse possession where the value of the land in question may be unknown, as in the instant case, it could be that by the time of ling, the value of the land subject of determination may be far in excess of the particular Magistrates’ Court’s pecuniary jurisdiction, which for all intents and purposes was not what was intended by the Act. 50. In the circumstances, in view of the express provisions of section 38 of the Limitation of Actions Act, as did the Environment and Land Court, we nd that Magistrates’ Courts do not have jurisdiction to determine the claims of adverse possession. As a consequence, the trial magistrate in the instant case rightly disregarded hearing and determining it. In the result, this ground is without merit and is accordingly dismissed.” It should be noted that the COA decision mentioned above was appealed through a Petition of Appeal dated November 14, 2024, to the Supreme Court. It is reported as Sugawara v Kiruti (sued in her capacity as the administratrix of the estate of Mutarakwa Kiruti Lepaso, also known as Mutarakwa Kiroti Lepaso, and in her personal capacity) & 3 others [2025] KESC 9 (KLR). The Petition of Appeal was summarily dismissed by the Supreme Court on March 21, 2025, as follows: “ From the long history of the matter set out above, there is clearly no live controversy relating to constitutional interpretation or application. The issues related to ownership of the suit premises which have substantively been determined from the trial court, the High Court, then mandated to hear environment and land matters, and later at the Court of Appeal. In the circumstances, we lack jurisdiction to delve into the issues now before us and we must therefore down our judicial tools.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18633/eng@2025-11-20 8

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25. In considering the counterclaim that forms the basis of this appeal, the trial magistrate proceeded to nd in favor of the respondents' claim. Relying on the doctrine of adverse possession, he made the following ndings in paragraph 14 of his judgment: “ In any event, the court, on a balance of probabilities, nds indeed the Defendant in the main suit took possession of the suit property way back in the year 2002, and as such neither Fatuma Bwashee nor any other purchaser, including Joseph Kamande, was able to take possession of the suit property. The mature trees visible on the pictorial evidence produced as D.Exh. 6 indicate that the Defendant in the main suit has been having constructive possession of the suit property since then. In essence therefore, and by dint of Section 17 of the Limitation of Actions Act, this court nds the Defendant in the main suit enjoyed uninterrupted possession of the suit property since the year 2002 to 2014 when the land was still lawfully registered in the name of Fatuma Bwashee. Therefore, the 3rd Defendant could not pass valid title to the 1st Defendant in the counter-claim” 26. The trial court determined that it had jurisdiction to hear claims related to adverse possession. This conclusion was reached before the Superior Courts' review and clarication on whether magistrates had jurisdiction, amid ongoing signicant debate, including the analyses I discussed above by the Court of Appeal and the Supreme Court, which ultimately claried that magistrates lacked authority to hear adverse possession claims. 27. Had the Sugawara Case (supra) been decided earlier and brought to the attention of the trial magistrate, as it was raised before me, perhaps his decision would have been dierent. He cannot be faulted on this point, given the two raging schools of thought available at the time regarding magistrates' jurisdiction to handle adverse possession claims. 28. Before the Sugawara Case (supra), I believed that magistrates had the authority to handle adverse possession claims within their monetary jurisdiction as specied in the Magistrates Act, 2015. Like Apostle Saul of Tarsus (who transformed into Apostle Paul), I have long experienced my Damascus moment and journey, and I am bound by the precedents set by the Superior Courts under the doctrine of stare decisis. 29. The confusion surrounding this jurisdiction conundrum stems from the creation of the ELC and the amendments made to the ELC Acts in 2015, which failed to harmonize various provisions of the law regarding the ELC itself vis-à-vis other existing courts, including the Magistrate's authority to handle ELC matters. A thorough review and necessary amendments were considered. It was undertaken, but then it seems not to have been exhaustive. I was involved in this process while serving as Deputy Registrar at the ELC Milimani – I may have been part of the problem creator. This is a discussion that will be resolved elsewhere. 30. This raises the relevant question of whether, at this point, the issue of jurisdiction can be raised on appeal, given that it was not contested during the initial trial. 31. The COA resolved that question in the Sugawara Case (supra) in this manner: ” As to whether the rst appellate court rightly concluded that the Magistrates’ Court did not have jurisdiction to hear claims for adverse possession, we begin from the standpoint that questions of jurisdiction can be raised at any time, since it is trite law that jurisdiction is everything. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18633/eng@2025-11-20 9

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29. In the case of the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, it was held that: “It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court.” (emphasis ours).” 32. Based on the preceding discussion, it is evident that the trial court lacked jurisdiction to adjudicate the adverse possession claim before it. Jurisdiction cannot be conferred upon a court by the parties' consent, acquiescence, estoppel, or any party's waiver, as these do not remedy a jurisdictional deciency. Accordingly, this matter may be appropriately raised before an appellate court as it has been raised here. 33. This position is further reinforced by the Court of Appeal in the case of Kenya Ports Authority v Modern Holdings [E.A] Limited [2017] KECA 293 (KLR), which held that: “ Generally speaking and on the authority of the Supreme Court decision in Samuel Kamau Macharia & Another V Kenya Commercial Bank Limited & 2 Others, a court can only exercise that jurisdiction that has been donated to it by either the Constitution or legislation or both. Therefore, it cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. Jurisdiction is in the end everything since it goes to the very heart of a dispute. Without it, the court cannot entertain any proceedings and must down its tools. See The Owners of the Motor Vessel Lilian ‘S’ v. Caltex Kenya Limited (1989) KLR 1. This Court in Adero & Another V Ulinzi Sacco Society Limited [2002] 1 KLR 577, quite suciently summarised the law on jurisdiction as follows; “1 ………….. 2. The jurisdiction either exists or does not ab initio and the non constitution of the forum created by statute to adjudicate on specied disputes could not of itself have the eect of conferring jurisdiction on another forum which otherwise lacked jurisdiction. 3. Jurisdiction cannot be conferred by the consent of the parties or be assumed on the grounds that parties have acquiesced in actions which presume the existence of such jurisdiction. 4. Jurisdiction is such an important matter that it can be raised at any stage of the proceedings, even on appeal. 5. Where a cause is led in court without jurisdiction, there is no power on that court to transfer it to a court of competent jurisdiction. 6. ………………... 7. ………………...” (Our emphasis). We have stressed that jurisdiction is such a fundamental matter that it can be raised at any stage of the proceedings and even on appeal, though it is always prudent to raise it as soon as the occasion arises. It can be raised: “….at any time, in any manner, even for the rst time on appeal, or even viva voce, and indeed, even by the Court itself https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18633/eng@2025-11-20 10

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- provided only that where the Court raises it suo motu, parties are to be accorded an opportunity to be heard.” 34. Before my conclusion, the issues before the trial court were also examined under the doctrine of constructive trust arising from a contested sale of the disputed property. 35. I agree with the submissions made by Mr. Oduol, learned counsel for the appellant, that when a person occupies land based on a sale agreement, even if awed, the possession is not considered adverse until the deal is repudiated or becomes unenforceable. 36. Despite the respondent having possessed the land since 2002, the period relevant to adverse possession must be calculated against the registered titleholder. The appellant was registered in 2022, and the suit was led shortly thereafter, well before twelve years had elapsed. This is because the letter of allotment specied that the ownership was under a 99-year lease. Consequently, from 1998 to 2013, when the land was regularized and freehold tenure was granted to the allottee, the land technically remained the property of the Government as the lessor. Adverse possession cannot be asserted against government land; the sole permissible cause of action is that the adverse possession period commenced in 2013, rather than 2002, as contended by the respondent. 37. The respondent claims ownership of the suit property based on an alleged purchase from Abdalla M. Abdalla, who supposedly received a letter of allotment dated November 3, 1998. However, this letter was never converted into a registered interest, nor did the respondent obtain a certicate of lease, freehold title, or any registration under the Land Registration Act. As a result, the respondent’s interest remains an unperfected and unregistered claim that cannot override the registered title issued to the appellant on May 20, 2022. Additionally, the letter of allotment was later acquired, showing it was not the earliest entitlement and therefore cannot be regarded as a valid letter of allotment. 38. Land rights are solely perfected upon registration. Sections 24 and 25 of the Land Registration Act explicitly stipulate that the registered proprietor possesses absolute ownership, which can only be challenged in accordance with the law. The respondent’s reliance on an informal allotment and a private sale that was neither regularized nor formalized in accordance with legal procedures does not confer a legally recognized or enforceable interest. The trial court erroneously regarded this unperfected allotment as equivalent or superior to the appellant’s registered interest. The Supreme Court’s decision in Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) (22 September 2023) (Judgment) arms that: “ Suce it to say that an Allottee, in whose name the allotment letter is issued, must perfect the same by fullling the conditions therein. These conditions include, but are not limited to, the payment of a stand premium and ground rent within prescribed timelines. But even after the perfection of an allotment letter through the fulllment of the conditions stipulated therein, an allottee cannot pass valid title to a third party unless and until he acquires title to the land through registration under the applicable law. It is the act of registration that confers a transferable title to the registered proprietor, and not the possession of an allotment letter.” (emphasis ours) 39. The respondent failed to provide any ocial documentation from the Ministry of Lands or the Lamu Land Registry conrming that he, or his alleged predecessor in title, had complied with the conditions of allotment, paid the required fees, or submitted a formal acceptance of the oer. Unlike the appellant, who demonstrated full compliance with formal procedures, including clearing balances, participating in survey, and receiving title, the respondent’s claim was entirely undocumented beyond the initial sale agreement and allotment letter. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18633/eng@2025-11-20 11

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40. In my opinion, and as articulated by Mr. Oduol, the learned counsel representing the appellant, the trial magistrate committed an error by invoking the equitable doctrines of constructive trust and proprietary estoppel in favor of the respondent. For these doctrines to be applicable, there must be a representation made by the legal owner to the claimant, reliance on that representation, and subsequent detriment. In this particular case, the respondent did not engage with the appellant or the original allottee, Ms. Fatma Bwanshee. There was no representation, promise, or conduct from the part of the appellant that could have led the respondent to alter his position based on reliance. Consequently, the invocation of equity was both misdirected and unsubstantiated. 41. In conclusion, the respondent’s interest lacks registration, documentary proof, and legal recognition. It is neither acknowledged by the land registry nor protected under the Land Registration Act. The trial court’s decision to prioritize this unregistered claim over acquired and registered title constitutes a signicant legal error. 42. Ultimately, the parties invoked the wrong forum for their claims to be ventilated, and this court cannot support one side's claim while dismissing the other's. The main issues in the appellant's claim and the respondent's counterclaim in the lower court were closely linked and must be examined together; both will fail due to a jurisdictional jigsaw. 43. This court returns a verdict that the trial court had no jurisdiction to address the issues before it, and therefore, the entire proceedings are rendered null and void. 44. The appeal is successful to the extent that it nullies the entire proceedings before the lower court. The parties may wish to refer the matter to the appropriate forum – the ELC – for proper adjudication. 45. As demonstrated, this was a complex issue involving an unresolved jurisdictional dilemma at that time. Neither the trial court nor the parties is to be held responsible. Each party shall bear its own costs both herein and in the lower court. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON NOVEMBER 20, 2025. E. K. MAKORI JUDGE In the presence of: Mr. Oduol for the Appellant Mr.Kariuki for the Respondent Happy: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18633/eng@2025-11-20 12

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