Ongiri Omurwa, Mokaya Riendo & Richard Mokaya Atambo v George Morara Nyachae, Nyamira County Government & Afritex Kenya Ltd

Appellants herein against the First and Second Respondents. The Second and Third Appellants averred in their Plaint dated 23rd October 2019 that the Second Appellant was the allottee and registered owner of the parcel of land known as Kiangoso Market Plot No. 24 in Kemera Ward measuring 50ft by 100ft and that the Third Appellant purchased the said parcel, developed it and operated a hotel business therein. 2. The Second and Third Appellants further averred that on 17 th October 2019, the First Respondent and agents of the Second Respondent trespassed into their portion of the said parcel, claimed that the parcel belonged to the Second Respondent, demolished structures and commenced construction of new structures without the Second and Third Appellants’ authority. Consequently, the Second and Third Appellants sought judgment against the First and Second Respondents as follows: a) A declaration that the plaintiffs are the lawful allotees and owners of Kiangoso Market Plot No. 24 in Nyamira County. b) Permanent Injunction restraining the Defendants by themselves, their servants, agents and/or employees or any other person or body from trespassing, demolishing and constructing new structures on Kiangoso Market Plot No. 24. c) General damages for trespass. ELCA No. E002 of 2022 (Nyamira) Page 2 of 15

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d) Costs of the suit to be borne by the Defendants. e) Such further and/or relief as the Honorable Court may deem fit and expedient so to grant. 3. The First Respondent filed Statement of defence dated 25 th November 2019 while the Second Respondent filed Statement of defence dated 12th November 2019. They both denied the Second and Third Appellants’ averments and urged the Subordinate Court to dismiss the case with costs. Additionally, the First Respondent averred that the parcel was public land while the Second Respondent averred that there was no parcel known as Kiangoso Market Plot No. 24. 4. On the other hand, Nyamira MCELC No. 4 of 2020 was filed on 15th January 2020 by the First Appellant against the First to Third Respondents. The First Appellant averred in his Plaint dated 15th January 2020 that he was the registered owner of the parcel of land known as Kiangoso Market Plot No. 28 in Kemera Ward measuring 50ft by 100ft and that he had purchased the said parcel, took possession, developed it and was operating a retail shop therein. 5. The First Appellant further averred that on 17 th October 2019, the First Respondent and agents of the Second and Third Respondents trespassed into his portion of the said parcel, claimed that the parcel belonged to the Second Respondent, demolished structures and commenced construction of new ELCA No. E002 of 2022 (Nyamira) Page 3 of 15

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structures without his authority. He therefore sought judgment against the Respondents for: a) A declaration that the plaintiff is the legal owner of Kiangoso Market Plot No. 28 in Nyamira County. b) Permanent Injunction restraining the Defendants by themselves, their servants, agents and/or employees or any other person or body from trespassing, demolishing and constructing new structures on Kiangoso Market Plot No. 28. c) General damages for trespass. d) Costs of the suit to be borne by the Defendants. e) Such further and/or relief as the Honorable Court may deem fit and expedient so to grant. 6. The First and Third Respondents filed Statements of Defence dated 7th July 2020 while the Second Respondent filed Statement of Defence dated 22nd September 2020. They denied the First Appellant’s averments and prayed that the suit be dismissed with costs. 7. The two parcels known as Kiangoso Market Plot No. 24 and Kiangoso Market Plot No. 28 are collectively referred to in this judgment as “suit properties.” 8. The two suits were consolidated and Nyamira MCELC No. 4 of 2020 was chosen as the lead file. Upon hearing the ELCA No. E002 of 2022 (Nyamira) Page 4 of 15

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consolidated matters, the Subordinate Court (M.C. Nyigei, Principal Magistrate) delivered judgment on 2 nd March 2022. The Court held that the Appellants had failed to prove their cases and proceeded to dismiss the cases with an order that each party bears own costs. 9. Dissatisfied with the outcome, the Appellants filed this appeal on 11th March 2022, through Memorandum of Appeal of even date. The following are the grounds of appeal as listed on the face of the Memorandum of Appeal: 1. THAT the Learned Trial Magistrate erred in Law and fact by failing to appreciate the law and evaluate the evidence placed before her before dismissing the appellants case. 2. THAT the Learned trial Magistrate erred in law and fact by failing to appreciate the pleadings submissions and authorities by the parties before reaching on (sic) the impugned decision. 3. THAT the Learned trial Magistrate erred in law and fact by dismissing the appellant’s case that they failed to produce certificate of registration as evidence of ownership. 4. THAT the Learned trial Magistrate erred in law and fact by failing to appreciate that the disputed Kiangoso Plot Markets No. ELCA No. E002 of 2022 (Nyamira) 24 & 28 Page 5 of 15 lied (sic) on Central

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Kitutu/Mwamanwa/1018 which was reserved for a market and not Central Kitutu/Mwamanwa/1017 which was reserved for Kiangoso Health Centre. 5. THAT the Learned trial Magistrate erred in law and fact by holding that the plot cards for Kiangoso market was not proof for ownership. 6. THAT learned trial magistrate erred in law and fact by failing to setforth (sic) proper issues for determination and proceeded to rely on unfounded issues the dismiss the case. 7. THAT the judgment of the Learned Trial Magistrate was therefore not well founded in law and hence null and void. 10.Based on those grounds, the Appellants prayed that the judgment be set aside, that their claims in the Subordinate Court be allowed and that they be awarded costs of this appeal and of the proceedings in the Subordinate Court. 11.The appeal was canvassed through written submissions. The Appellants filed submissions dated 22nd October 2025. 12.The Appellants acknowledged that being the Plaintiffs in the Subordinate Court, the burden of proof fell squarely on them. It was also submitted that the Appellants were in possession of the suit properties as of the time of filing of the suits and that possession is an integral mark of ownership. It was further ELCA No. E002 of 2022 (Nyamira) Page 6 of 15

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submitted that although there was a dispute as to whether the suit properties were located on plot number Central Kitutu Mwamanwa/1017 or Central Kitutu Mwamanwa/1018, it was not disputed that all market plots in Kiangoso emanated from Central Kitutu Mwamanwa/1018 which was a community land held in trust for the community by the defunct Gusii County Council which was the predecessor of the Second Respondent. 13.It was further submitted that the Appellants proved that the suit properties were inexistence and that they emanated from parcel number Central Kitutu Mwamanwa/1018 following its subdivision by the defunct Gusii County Council into several market plots. That the Appellants produced copies of green card, part development plan, list of allottees, plot cards and receipts for rent and rates thus confirming existence of the suit properties, their location within Central Kitutu Mwamanwa/1018, their allocation to the Appellants, decades of occupation and ownership due to compliance with the terms of the allocation. Reliance was placed on the cases of Kenya Ports Authority v Kuston (Kenya) Limited (2009) 2EA 212 and Joseph N.K. Arap Ng'ok v Moijo Ole Keiwua & 4 others [1997] eKLR in support of those submissions. 14.It was also submitted that the Appellants produced a copy of PDP which showed that the two plots are separate from Central Kitutu Mwamanwa/1017 and instead located within Central Kitutu Mwamanwa/1018. That being unregistered market plots, their ownership could not be proved through ELCA No. E002 of 2022 (Nyamira) Page 7 of 15

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certificates of title or green cards but through production of documentary evidence demonstrating process of acquisition and possession, something which they had done. Relying on the cases of Caroline Awinja Ochleng & another v Jane Anne Mbithe Gitau & 2 others [2015] KEHC 4896 (KLR) and Danson Kimani Gacina & another v Embakast Ranching Company Ltd [2014] eKLR, it was submitted that it was not in order for the Second Respondent to ignore the well demonstrated chain of events that proved that the Appellants were owners of the suit properties just because the Gusti County Council was no longer operational in Nyamira County. It was contended that on balance of probabilities, the Appellants had proved that they had acquired valid titled to the suit properties. 15.Counsel for the Appellants went on to submit that the Appellants had proven possession of the suit properties since the 1970s and that they were in possession at the time of intrusion. It was also submitted that trespass is simply the act of entering into ones' land without his consent, that the Third Respondent had admitted to having been contracted by the Second Respondent while the First Respondent who was a member of Nyamira County Assembly and a ward representative for Kiangoso Ward was at the site on the material day, it followed that their actions amounted to trespass. ELCA No. E002 of 2022 (Nyamira) Page 8 of 15

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16.In conclusion, it was contended that the Appellants had established ownership of the suit properties and were therefore entitled to the reliefs sought in their Plaints. That they had demonstrated the roots of their titles and that the appeal ought to be allowed with costs. 17.The First and Third Respondents filed submissions dated 13 th November 2025. It was submitted on their behalf that the Appellants had not proved ownership or any legally protectable interest in the suit properties. That a letter of allotment does not vest in the allottee any legal title or interest in land. Reliance was placed on the cases of Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) (22 September 2023) (Judgment), Peter Wariire Kanyiri v Chrispus Washumbe & 2 others [2022] eKLR, Joseph N.K. Arap Ng'ok v Moijo Ole Keiwua & 4 others [1997] KECA 1(KLR) and Wreck Motors Enterprises vs the commissioner of lands (1997) eKLR, in support of that argument. 18.It was further submitted that an allottee can only acquire title upon issuance of a valid letter of allotment, compliance with the terms thereof, and ultimate issuance of title. That the documents which were tendered by the Appellants were incapable of supporting their claim and that in any case, no letter of allotment was produced. That, consequently, the trial Court rightly found that the Appellants had not established any ELCA No. E002 of 2022 (Nyamira) Page 9 of 15

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legal or equitable interest over the plots and correctly dismissed their claims. 19.It was also submitted that the Respondents produced records from the Nyamira County Land Office which showed that Central Kitutu/Mwamanwa/1017 is public land allocated for Kiangoso Health Centre and Central Kitutu/Mwamanwa/1018 as the adjoining market land and that consequently, the trial Court did not err. That Central Kitutu/Mwamanwa/1017 on which Kiangoso Health Centre stands is public land as defined under Article 62 of the Constitution and that any alleged sale agreement or private transaction relating to the said property was void ab initio for purporting to confer private rights over public land. 20.Regarding trespass, it was submitted that the Appellants had neither proved that they had title to the suit properties nor any right to immediate and exclusive possession and that consequently, trespass had not been established. That in any case, public land could not be subject to trespass by public authority acting within its statutory mandate. Relying on the case of Municipal Council of Eldoret v Titus Gatitu Njau [2020] eKLR, it was argued that the trial Court properly concluded that the First and Third Respondents' actions did not amount to trespass and that the Appellants' claim for general damages was wholly unmerited. ELCA No. E002 of 2022 (Nyamira) Page 10 of 15

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21.As to whether the trial Court properly evaluated the evidence and correctly dismissed the Appellants' suits, it was submitted that the Appellants failed to discharge the burden of proof as required under Sections 107, 109 and 112 of the Evidence Act and in line with settled legal principles. 22.In conclusion, it was contended that the Learned Magistrate properly analysed the evidence adduced and correctly applied the law and that no error of law or fact had been demonstrated to justify disturbing the sound findings of the Trial Court. Consequently, the First and Third Respondents urged the Court to dismiss the appeal with costs for want of merit. 23.The Second Respondent did not file any submissions. 24.This is a first appeal. The mandate of a first appellate court was restated by the Court of Appeal in Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR thus: This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212 wherein the Court of Appeal held inter alia that: ELCA No. E002 of 2022 (Nyamira) Page 11 of 15

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“On a first appeal from the High Court, the Court of Appeal should 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 that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 25.I have carefully considered the Memorandum of Appeal, the submissions and the entire record. The issues that arise for determination are whether the Appellants proved ownership of the suit properties and whether the reliefs sought were available. 26.The Second and Third Appellants’ case in the proceedings before the Subordinate Court, as can be gleaned from their Plaint dated 23rd October 2019, was that the Second Appellant was the allottee and registered owner of the parcel of land known as Kiangoso Market Plot No. 24 and that the Third Appellant purchased the said parcel from him. Among the prayers they sought is a declaration that they were lawful allotees and owners of the parcel, permanent injunction and general damages for trespass. ELCA No. E002 of 2022 (Nyamira) Page 12 of 15

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27.On his part, the First Appellant’s case, as is manifest from his Plaint dated 15th January 2020, was that he was the registered owner of the parcel of land known as Kiangoso Market Plot No. 28. He too sought a declaration that he was the legal owner of the plot, permanent injunction and general damages for trespass. 28.Although the Appellants claimed to be allottees and owners of the suit properties, they did not produce any letter of allotment. Instead, the First Appellant produced a document titled “Kadi Ya Ploti” while the Second and Third Appellants relied on a document titled “Plot Card.” Both documents are headed “Gusii County Council.” 29.The Plot Card in the name of the Second Appellant is dated 27th February 2003 and refers to Plot number 24 located at Kiangoso Market. It cites “Min. of W, Town Planning & Markets Committee 12/73 (c) (8) Date 17/5/73” and states “You have been authorised to use the plot for hotel (type of business).” 30.On the other hand, the “Kadi Ya Ploti” in the name of the First Appellant is dated 5th September 1974 and refers to Plot number 28 located at Kiangoso Market. It cites “Miniti ya Trades and Markets Committee Min36/74(A)(11) ya Tarehe 20/6/1974” and states “Umepewa/Mmepewa Ploti hii kwa kufanyia biashara ya retail.” 31.The Appellants acknowledge the public land background of the suit properties. It is for that reason that they refer to ELCA No. E002 of 2022 (Nyamira) Page 13 of 15

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allotments. They also acknowledge, as is manifest from their submissions in this appeal, that beyond the plot cards, they do not have any title registered under any land registration law. 32.It is settled law that an allotment card, allotment letter or plot card for that matter is not title to land. Even if the Appellants had produced letters of allotment, which they did not do, that alone would not be enough to confer title on them. Caselaw is replete with the insistent clarification that an allottee has to follow up an allotment letter, comply with all the conditions of the offer as well as the procedure for obtaining title to public land before he gets a valid title document. See Wreck Motor Enterprises v Commissioner of Lands & 3 others [1997] eKLR. 33.The Supreme Court reiterated the foregoing position in Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) (22 September 2023) (Judgment) where it held that an allotment letter is incapable of conferring interest in land since it is nothing more than an offer which awaits the fulfilment of its terms and conditions. The court subsequently underscored those basic requirements in Sehmi & another v Tarabana Company Limited & 5 others (Petition E033 of 2023) [2025] KESC 21 (KLR) (11 April 2025) (Judgment). 34.The Appellants moved the Subordinate Court under the notion that they own the suit properties. In some instances, they even ELCA No. E002 of 2022 (Nyamira) Page 14 of 15

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referred to themselves as registered proprietors. The reliefs which they sought point to litigants who were intent on asserting proprietorship rights. In the absence of proof of proprietorship, proprietorship rights cannot be claimed. The Appellants did not prove proprietorship, and the Learned Magistrate cannot be faulted in the manner in which he handled the matter. The reliefs which the Appellants sought were in the circumstances not available to them. 35.In view of the foregoing discourse, this appeal is bereft of merit. I dismiss it with costs to the Respondents. Dated, signed, and delivered at Nyamira, this 7th day of October 2026. D. O. OHUNGO JUDGE Delivered in the presence of: Mr Nyambati for the Appellants Mr Ochoki for the 1st and 3rd Respondents No appearance for the 2nd Respondent Court Assistant: B Kerubo ELCA No. E002 of 2022 (Nyamira) Page 15 of 15

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