https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4782

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ISIOLO** **ELC APPEAL E031 OF 2025** ABDI AFADIMO SHG Through the Chairman, Ali Abduba Abdi…………………….…APPELLANT VERSUS HASSAN QABALE ……………………….……..………..1ST RESPONDENT RASHID DIMA ……………………………..…..…………2ND RESPONDENT AMINA RAMATA ………………………………….……..3RD RESPONDENT JUMA KAMPARE……………………………….…………4TH RESPONDENT HASSAN KAMPARE……………………………….……..5TH RESPONDENT ABDIRAHAMAN HALAKE ………………………...……6TH RESPONDENT IBRAHIM BORU………………………………….……….7TH RESPONDENT *[Being an appeal against the Judgment and Decree dated 31.10.2025 by Hon. M A Odhiambo – Senior Resident Magistrate in Isiolo CM ELC No. 28 of 2020]* **JUDGMENT** 1. Whenever a party, the Appellant herein not excepted, approaches a court of law in an endeavor to procure a set of orders, it behooves the party [claimant] to substantiate the assertions underpinning the claims before the court. Substantiation would require production of evidence, whether oral or documentary, but which is cogent and plausible. In addition, the evidence must be one that suffices in the eyes of the law. The evidence to be tendered must not be just some papers, or mere hearsay. 2. The crux of every litigation is dependent on proof. The importance of proof in civil proceedings and in general court matters, was highlighted by the court of appeal in the case of **General & another v Hussein & 3 others [2025] KECA 1022 (KLR).** The Court of Appeal illuminated the position thus: ***“The Law of Evidence, in all its complex glory, naturally revolves around two cardinal things: facts and proof. It is these two that combine to form evidence, which the court may or may not accept as showing the merit or otherwise of a party’s case. Some facts are however more important than others and it is not just expected but demanded that these facts be proved by the party seeking to rely on them. Section 3 (2) & (3) of the***[***Evidence Act***](https://kenyalaw.org/akn/ke/act/1963/46)***provides as follows:2.A fact is proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it exists.3.A fact is disproved when, after considering the matters before it, the court either believes that it does not exist, or considers its nonexistence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does not exist.*** 1. Before venturing forward, to interrogate whether the Appellant herein proved /substantiated its claim to and in respect of the matter, it suffices to put the facts into context. The facts underpinning the dispute beforehand are rather straight forward. 2. The Appellant approached the lower court and contended thus: The Appellant is a self-help group; the Appellant is duly registered with the designated ministry/state department; the Appellant applied to be allocated land; the application was made to the County Council of Isiolo [now defunct]; the application for allotment of land was duly considered and allowed; the Council duly issued minutes; the Appellant was allocated plot number 1615 Chechelesi – Isiolo. 3. Furthermore, the Appellant contended that: The plot which was allocated was described/contained at foot of plan number ISL/117/19/635; the plan in question was duly approved; the Appellant entered upon and took possession of the suit property; the Appellant is the registered owner of the suit property; and the Appellant is entitled to exclusive possession. 4. Be that as it may, the Appellant contended that on or about the year 2017, the Respondents herein [who were the defendants in the lower court] entered upon and descended onto the suit property and deposited building materials. In addition, it has been posited that the actions by the Respondents, constituted trespass. 5. Premised on the foregoing, the Appellant approached the lower court vide plaint dated the 04.08.2020 and wherein the Appellant sought the following reliefs: 6. *A* ***permanent order of injunction restraining the defendants whether by themselves their agents and /or any other persons working under their institutions from entering /or in any other way interfering with the Plaintiffs proprietary rights over the plaintiff’s plot number Chechelezi 1615 comprised on Plan No. ISL/117/19/635 Isiolo County.*** 7. ***Costs and Interests of this suit.*** 8. ***Any other relief that honourable court may deem fit;and just to grant.*** 9. The Respondents herein variously entered appearance and thereafter filed their statements of defence. In particular, the 1st, 2nd and 7th Respondents filed a statement of defence dated the 21.08.2020. The named defendants denied the claims by/on behalf of the appellant. 10. The 3rd, 4th, 5th and 6th Respondents filed a statement of defence and counter claim dated the 25.07.2022. The said defendants also denied the assertions by the appellant. In addition, the said Respondents contended that the same were lawfully in occupation of their plot[s] situated at Kambi Garba and not in Chechelesi. Moreover, the said Respondents contended that same are not privy to, or conversant with the appellant’s plot. 1. The suit in the lower court was heard and disposed of *vide* Judgment delivered on 31.10.2025 and wherein the learned trial magistrate [Hon. M A Odhiambo – SRM] found and held that the Appellant had neither proved nor established its claim to the suit plot. Moreover, the learned trial magistrate also found and held that the documentation that were being relied upon by the appellant, were devoid of credibility and probative value. Further, and in any event, it was held that the Appellant had not proved any legal rights to and in respect to the suit property. 2. Additionally, the learned trial magistrate also found and held that insofar as the Appellant is a self -help group and thus unincorporated body, same could not commence or maintain the suit in its own name. Moreover, the trial court underscored that a self- help group [organization] can only sue through the names of the officials and not otherwise. 3. Other than the foregoing, the learned Trial Magistrate also found and held that the counter claim by the 3rd, 4th, 5th and 6th Respondents, was *devoid* of merits. 4. In the end, the learned trial magistrate proceeded to and dismissed the appellant’s suit. The Appellant was also condemned to bear the costs of the suit. However, the counter claim was dismissed, albeit with no orders as to costs. 5. Dissatisfied, the Appellant has now approached this court *vide* the Memorandum of appeal dated the 13.11.2025. The Memorandum of appeal has highlighted the following grounds: 6. ***That the learned senior resident magistrate erred in law and in fact by failing to put into consideration the finding of the County Physical Planner and the Surveyor’s report filed in court which confirmed that the appellants owns plot No. 1615 Checheles area of Isiolo County.*** 7. ***That the learned senior resident magistrate erred in law and in fact by failing to reach to a finding that the appellants have superior documentations and have been in occupation of plot nol. 1615 Chechelesi, had the parcel of land surveyed, has beacon certificate issued and developed the land conferring complete ownership of the plot of the land.*** 8. ***That the learned senior resident magistrate erred in law and in fact by awarding the respondent cost of the suit when indeed it was 1st, 3rd, 4th and 6th defendant who testified in court.*** 9. ***That the learned senior resident magistrate erred in law and in fact by failing to consider the statement of the 7th respondent which was filed and adopted in court the same supporting the appellants case.*** 10. ***That the learned senior resident magistrate erred in misleading herself that the respondent documents were authentic when indeed they never called any official from the lands department to authenticate them.*** 11. ***That the learned senior resident magistrate erred in law and in fact by stating that the 1st, 2nd and 7th Respondents filed their written submissions when indeed none of them testified in court nor filed any submission despite being*** 12. ***That the learned senior resident magistrate erred in law and facts by disregarding the plaintiff minutes of work s and town planning committee when indeed the same were authenticated as genuine by the surveyor and the records officer.*** 13. ***That the learned senior resident magistrate erred in law and in fact by disregarding the facts that the plaintiffs had authorized their chairman to sue on behalf of the ground minutes were produced in court.*** 14. ***That the decision of in the appeal of Wreck Motors enterprises vs commissions of lands and others [1997] eKLR on which the learned Senior Resident Magistrate placed reliance was wholly irrelevant to the facts and issue in dispute.*** 15. ***That the Senior Resident magistrate erred in law on basis of the appellant’s evidence both oral and documentary and given proper evaluation of the case and the written submissions in coming to a conclusion that the Appellant had not proved this case on a balance of probabilities.*** 16. The subject appeal came up for directions on the 25.05.2026, whereupon learned counsel for the Appellant intimated to the court that same had duly filed and served the record of appeal. In addition, learned counsel for the Appellant also posited that the record of appeal was complete. To this end, counsel sought directions as pertains to the disposal of the appeal. Furthermore, counsel proposed to canvass the appeal by way of written submissions. 17. With the concurrence of learned counsel for the Respondents, the court proceeded to and issued directions. The directions were: The appeal shall be canvassed by way of written submissions; the Appellant shall file and serve written submissions within 14 days from the date of the directions; the Respondents shall file and serve written submissions within 14 days from the date of service; and the Appellant shall be at liberty to file and serve rejoinder submissions [if any] within 7 days from the date of service. 1. The Appellant filed written submissions dated the 06.06.2026 and wherein same has highlighted three [3] key issues. The issues are: Whether the appellants established and demonstrated protectable interests in the suit property; Whether the Appellant established their claim of trespass against the Respondents ; and Whether the appellant’s was entitled to the reliefs sought. 2. Regarding the first issue, learned counsel for the Appellant has submitted that the Appellant tendered and produced before the lower court assorted documents including: copy of minutes of the works, town planning and markets committee – county council of Isiolo; copy of the part development plan; copy of a report by the physical planner dated 04.09.2023; copy of a report by the surveyor dated the 29.06.2023; and various receipts denoting payment of rates. 3. It has been contended that despite the totality of the evidence tendered, the learned trial magistrate reached a conclusion that the Appellant was not the registered owner of the suit property. The conclusion or decision of the learned trial magistrate, is contended to be erroneous; slanted; and contrary to the evidence on record. 1. Furthermore, learned counsel for the Appellant has submitted that the learned trial magistrate ignored and disregarded the reports by the surveyor and the physical planer, which confirmed that the suit property lawfully belonged to the appellant. In addition, it was contended that the report by the surveyor and the physical planner also affirmed the authenticity of the minutes that came from the county council of Isiolo [now defunct]. 1. Secondly, it has been submitted that the learned trial magistrate failed to discern that the appellants had protectable rights over the suit property. In in particular, it has been submitted that had the magistrate considered the reports, same would no doubt have come to a contrary position. 2. Lastly, it has been submitted that the learned trial magistrate erred in condemning the Appellant to bear the costs of the suit and to pay all the Respondents, yet only the 1st , 3rd, 4th, and 6th Respondents, testified before the court. In this regard, it has been submitted that the order on costs was improperly exercised by the learned trial magistrate. 3. Other than the foregoing, learned counsel for the Appellant has submitted that the Appellant tendered and placed before the court evidence to show trespass. In any event, counsel posited that insofar as the Appellant is the owner of the suit plot, the respondent herein could not enter upon or remain in possession thereof, without the permission of the appellant. 4. *In a nutshell*, learned counsel for the appellant, has submitted that trespass was duly established and proved. In this regard, learned counsel has invited the court to find and hold that the appeal is meritorious. To this end, the court has been implored to allow the appeal; set aside the impugned Judgment; and to allow the appellant’s suit *vide* Plaint dated the 04.08.2020. 5. The 1st respondent filed written submissions dated [undated] and wherein same has highlighted three [3] key issues. The issues are: The Judgment of the learned trial magistrate is well grounded; the Appellant did not establish its claim to the requisite standard; and the Appellant was divested of the requisite locus standi to mount/maintain the suit and by extension the appeal. 6. To buttress the foregoing submissions, learned counsel for the 1st respondent has cited and referenced various decisions. The decisions are: **Wreck Motors Enterprises versus the Commissioner of Lands and others [1997] eKLR; Dr. Joseph N K Arap Ngok versus Justice Moijo Ole Keiwua and 5 others [1997] eKLR; Gitwany Investments Limited versus Tajmall Limited and 3 others [2006] eKLR; Lumfa Self Help Group versus Mwangi [2024] KEHC; and Kipsiwo Community Self Help Group versus the Attorney General and 6 others [2013] eKLR**, respectively. 7. Learned counsel for the 1st respondent has submitted that the subject appeal is devoid of merits. The court has been invited to dismiss the appeal and to award costs to the 1st respondent. 8. The 3rd and 6th Respondents filed written submissions dated the 14.06.2026 and wherein the named Respondents, have highlighted two [2] key issues. The issues are: The Appellant failed to prove its claim to the requisite standard; and the Appellant relied on documents, which were devoid of probative value. 9. Further, and in addition, learned counsel for the 3rd and 6th Respondents, has submitted that the Appellant was laying a claim to ownership of the suit plot, yet the Appellant had not even obtained /procured a letter of allotment. It was contended that the appellant’s suit was premature and stillborn. 10. Learned counsel for the 3rd and 6th Respondents, has thereafter cited and referenced the decision in the case of **Nelson Kazungu Chai and 9 others versus Pwani University [2014] eKLR,** wherein the court illuminated the process attendant to the acquisition of Government land [now public land]. 11. Having reviewed the record of appeal; the grounds of appeal; the evidence tendered [both oral and documentary]; the impugned Judgment; and consideration of the written submissions by /on behalf of the respective parties, two [2] key issues emerge for determination. The issues are: Whether the Appellant herein established its pleaded case to the requisite standard or otherwise; and whether the learned trial magistrate correctly appreciated and applied the decision in **Wreck Motors Enterprises Limited versus the Commissioner of Lands and others [1997] eKLR.** 12. Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a first Appeal. By virtue of being a first Appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first instance. The court is obligated to review the evidence and determine whether the finding[s] and conclusion[s] arrived at by the trial magistrate accord with the evidence on record; and the legal principles. 13. The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding[s] and conclusion[s] of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principle, which vitiates the findings of the Trial Court. 14. Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. It is a jurisdiction that cannot be exercised for the mere asking. In addition, it cannot be invoked at will. **Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya**, regulates its exercise. 15. The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first Appeal, has been the subject of various court decisions. In the case of **Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR).** The Court of Appeal expounded on the scope of the jurisdiction. The court stated thus: *“46. We also wish to be guided by the reasoning of this court in the case of* ***Mwana Sokoni versus Kenya Business Limited (1985) KLR*** *931 page 934,934 thus:-*“*Although this court on Appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence on a first Appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses.”* 1. Recently, the Court of Appeal revisited the jurisdictional remit in the case of **Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR).** The Court highlighted the principle in the following manner: *“We have considered the Appeal, and this being a first Appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court, but of course, where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the*[*Civil Procedure Act*](https://new.kenyalaw.org/akn/ke/act/1924/3)*, which requires a first appellate court to re-evaluate, reassess, and reanalyse the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows:* “*Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.” [see also the decision in the case of* **County Government of Bungoma & 2 others v JOO & 2 others [2024] KECA 1377 (KLR) *and*****County Government of Narok v Ntutu & 2 others [2026] KECA 880 (KLR) –** [paragraphs 56 and 57 thereof]” 1. Bearing in mind the principles enunciated in the decisions [supra], I am now well poised to revert to the subject matter and to address the thematic issues highlighted elsewhere hereinbefore. I beg to start with the first issue, namely; whether the Appellant herein established its pleaded case to the requisite standard or otherwise. To begin with, it is trite and established that parties are bound by their pleadings. In addition, it is common ground that no party is at liberty to switch goal posts, or tender evidence/submissions which are contrary to the pleadings on record. 2. The foregoing position was illuminated in the case of **Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR**). The court of appeal stated as hereunder: “***As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings. For the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The Court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the Court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the Court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice....*** ***In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.”*** 1. The Appellant herein posited that same is [sic] the registered owner of plot number 1615 – Chechelesi – Isiolo. In addition, the Appellant contended that the suit plot was duly allocated to it. To this end, the Appellant tendered and produced assorted documents [read exhibits], in an endeavor to prove ownership. 2. It is the said case/claim, namely; that the Appellant is the registered owner of the suit property, which was heard and determined by the trial court. Suffice it to state that the trial court reviewed the totality of the evidence [both oral and documentary] and thereafter returned a finding that the Appellant had not proved ownership of the suit property. 3. Be that as it may, the Appellant is now before me and same has fashioned an issue as to whether same [appellant] demonstrated protectable interests in the suit property. I beg to state that the question of whether or not the Appellant had or has protectable interest in respect of the suit property, did not arise before the trial court. In this regard, the said issue cannot now be canvassed before me. 4. It is settled law that a party, the Appellant not excepted, cannot raise or canvass a new issue, before the appellate court. For the avoidance of doubt, the only exception is where the question sought to be raised, touches on and concerns jurisdiction. In all other situations, no new issue can be raised for the first time in appeal. [See the holding in **Afrison Export Import Limited & another v National Land Commission & 9 others [2026] KECA 1257 (KLR)**]. 5. Additionally, it is also important to underscore that the question of protectable interests [whatever it means], was equally not captured in the grounds of appeal. I have reproduced the grounds of appeal elsewhere herein before. Nowhere has the Appellant spoken to or highlighted the issue of protectable interest. 6. It is instructive to underscore that a party cannot canvass a new ground or issue, which is not contained in the grounds of appeal. The provisions of **Order 42 Rule 4 of the Civil Procedure Rules, 2010** are apt. The provision stipulate[s] thus: **“4. Grounds which may be taken in appeal [Order 42, rule 4]** ***The Appellant shall not, except with leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the High Court in deciding the appeal shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court under this rule: Provided that the High Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.”*** 1. Inmy humble view, the Appellant cannot be allowed to sneak in the issue of protectable interest. That was not the appellant’s case. The Appellant must be content with its case. The Appellant cannot expand the scope or the boundaries of the case, by way of innovation. It is the Appellant who spread the bed. The Appellant must be prepared to lie on same [its bed]. 2. Back to the case that was pleaded. Did the Appellant prove that same is the registered owner of the suit property? I wish to state that the learned trial magistrate reviewed all the documents [exhibits] and weighed same against the law. The learned trial magistrate thereafter found and held that the totality of the documents tendered, were incapable of conferring title to the appellant. 1. In particular, the learned trial magistrate found and held that the minutes of works, town planning and markets committee – county council of Isiolo [now defunct] were neither confirmed nor signed by the chairperson of the committee. In the absence of the confirmation, there is no gainsaying that the said minutes were invalid. The same were/are devoid of probative value. 2. Furthermore, it is not lost on me that the minutes which were being relied upon by the appellant, and which were not confirmed, were minutes of a departmental committee. The said minutes had not been escalated to the full council of the county council of Isiolo, for adoption and ratification. It suffices to state that the minutes can only be held to be valid upon adoption /ratification by the full council. 3. **Section 80 of The Local Government Act, Chapter 265, Laws of Kenya** [now repealed] states thus: 80. Minutes to be kept and signed **(1) Minutes of the proceedings of every meeting of a local authority shall be regularly entered in books kept for that purpose, and such minutes shall be confirmed at the same or the next meeting.** **(2) The minutes of the proceedings of a meeting of a local authority, when signed by a member describing himself as or appearing to have been chairman of the meeting at which the minutes are confirmed, shall, in the absence of proof of error, be deemed to be a correct record of the proceedings of the meeting of which they purport to be the minutes.** 1. Other than the minutes, which were clearly invalid, the Appellant also relied on a part development plan, in an endeavor to prove ownership. There is no gainsaying that a part development plan, is merely a planning tool, deployed for purposes of either alienation or for discerning whether the site for the project is available. A part development plan is not an ownership document. The same cannot then be relied upon to prove ownership. [See the provision of **Section 3 of the Physical Planning Act, Chapter 286, Laws of Kenya, now repealed]** 2. In addition, the part development plan, which the Appellant was relying on was indicated to be incomplete. PW5 [Peter Kimani Wachira], who testified on behalf of the Appellant stated thus: “ I ***have prepared two reports in regard to the case. The second one is dated 07.06.2013. The findings are that the PDP is dated 18.10.2011. The PDP was not duly signed. The first number is not indicated. The PDP dated 18.10.2011 bears reference number ISL/117/11/511. The PDP was not authenticated. It had fake signature. This PDP belongs to the plaintiff.”*** 1. The Appellant’s own witness testified and indicated that the PDP being relied upon by the Appellant was fake. So how does the appellant, blame the trial magistrate for returning a finding that its documents, were devoid of probative value. In fact, the learned trial magistrate should have stated that the Appellant documents were forgeries. 2. It is also important to highlight that the Appellant conceded that same had not been issued with a letter of allotment. It is common ground that a letter of allotment constitutes the offer in favour of the addressee [allottee] and same must be accepted. It is the letter of allotment, which precipitates the consequential actions and steps towards acquisition of title. In the absence of a letter of allotment, the Appellant herein is a busybody. 3. I have reviewed the Judgment of the learned trial magistrate and I do wish to state that same was not only comprehensive, but was equally well reasoned. The learned trial magistrate interrogated each and every document, that was tendered before her. She looked at the law and found that the documents in question, were worthless, in the eyes of the law. 4. The impugned Judgment merits affirmation. I hereby do. 5. Next is the issue of whether the learned trial magistrate misapprehended and misapplied the holding in **Wreck Motors Enterprises Limited versus the Commissioner of Lands and others [1997] eKLR.** The Appellant has contended that the learned trial magistrate relied on the said decision, yet the same is indicated to have been wholly irrelevant to the facts and issue in dispute. 6. I beg to state that it is learned counsel for the appellant, who has neither appreciated nor internalized the holding by the court of appeal. Quite clearly, the court of appeal posited that title to land only accrues upon issuance of a letter of allotment; compliance with the terms thereof; and ultimate issuance of a certificate of title or lease. Simply put, the court of appeal underscored that even where a person has been issued with a letter of allotment [which is an offer], such a person does not have ownership rights. 7. In the respect of the instant matter, the Appellant admitted that same had not even been issued with a letter of allotment. The Appellant’s position is not even nearer the threshold that was highlighted in the case of **Wreck motors Enterprises limited** [*supra*]. 8. It is equally important to highlight that the legal position that was illuminated in the case of **Wreck Motors Enterprises Limited** *[supra*], has since been reaffirmed by the Supreme Court in the case **Torino Enterprises Ltd v Attorney General [2023] KESC 79 (KLR).** Theapex court stated thus: ***“ 58. So, can an allotment letter pass good title? It is settled law that an allotment letter is incapable of conferring interest in land, being nothing more than an offer, awaiting the fulfilment of conditions stipulated therein. In***[***Dr Joseph NK Arap Ng’ok v Justice Moijo Ole Keiyua & 4 others***](https://kenyalaw.org/akn/ke/judgment/keca/1997/1)***CA 60/1997 [unreported]; and in***[***Gladys Wanjiru Ngacha v Teresa Chepsaat & 4 others***](https://kenyalaw.org/akn/ke/judgment/kehc/2008/622)***HC Civil Case No 182 of 1992; [2008] eKLR, the superior courts restated this principle as follows:“It has been held severally that a letter of allotment per se is nothing but an invitation to treat. It does not constitute a contract between the offerer and the offeree and does not confer an interest in land at all ” [Emphasis added].*** ***59.The pronouncement in Gladys Wanjiru and Dr Joseph NK Arap Ng’ok (supra) has been echoed in various Environment and Land Court decisions post the 2010***[***Constitution***](http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No.%202%20of%202012)***, including;***[***Lilian Wanjeri Njatha v Sabina Wanjiru Kuguru & another***](https://kenyalaw.org/akn/ke/judgment/keelc/2022/222)***, Environment and Land Case No 471 of 2010; [2022] eKLR;***[***John Elias Kirimi v Martin Maina Nderitu & 4 others***](https://kenyalaw.org/akn/ke/judgment/keelc/2017/3261)***, Environment and Land Suit No 320 of 2011; [2021] eKLR; and [Kadzoyo Chombo Mwero v Ahmed Muhammed Osman & 11](https://kenyalaw.org/akn/ke/judgment/keelc/2021/30%22%20%5Ct%20%22_blank)***[***others***](https://kenyalaw.org/akn/ke/judgment/keelc/2021/30)***, Environment and Land Case No 42 of 2021; [2021] eKLR, to mention but a few.*** ***60.Suffice it to say that an Allottee, in whose name the allotment letter is issued, must perfect the same by fulfilling 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 fulfillment 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. In***[***Peter Wariire Kanyiri v Chrispus Washumbe & 2 others***](https://kenyalaw.org/akn/ke/judgment/keelc/2022/1531)***, Environment and Land Court Case No 603 of 2017; [2022] eKLR, Kemei, J held as follows:“[15].In the case at hand, in the absence of any title registered in the name of the plaintiff, the court is unable to hold that the plaintiff is the registered proprietor of the land. This is because the letter of allotment lapsed within 30 days and the same is of no legal consequences” [Emphasis added].*** ***61.While we agree with the general tenor of the learned Judge’s foregoing pronouncement, we remain uncomfortable with his inference that the allotment letter was of no legal consequence solely because it had lapsed after 30 days. We must reiterate the fact that an allotment letter in and by itself, is incapable of conferring a transferable title to an allottee. Put differently, the holder of an allotment letter is incapable of transferring or passing valid title to a third party on the basis of the allotment letter unless and until he becomes the registered proprietor of the land consequent upon the perfection of the Allotment Letter. It matters not therefore that the allotment letter has not lapsed.”*** 1. *In a nutshell*, it is my finding and holding that the learned trial magistrate correctly apprehended and correctly applied the legal principle, espoused in the case of **Wreck Motors Enterprises Limited** [*supra*]. On the contrary, it is the learned counsel for the appellant, who is yet to internalize the said principle and to juxtapose same against the facts of the case. 2. In my humble view, the legal position in the case of **Wreck Motors Enterprises Limited** [*supra*], renders the claim by the Appellant premature and stillborn. **Conclusion:** 1. The Appellant herein sought to impeach the Judgment of the learned trial magistrate. It was therefore incumbent upon the Appellant to isolate and highlight the errors [ if any] that were committed. It is not enough to say that the learned trial magistrate misapprehended the facts. One must walk the talk. It can only be walked by substantiating the error [if any]. 2. I am afraid that the Appellant did not isolate any error, either of facts or law. Absent proof of an error in the Judgment of the trial court, the same cannot be vitiated. In any event, it is worth repeating that this court, can only interfere with the Judgment of the court of the first instance, where certain parameters are met. 3. The parameters were elaborated in the case of **Mwangi & another v Wambugu [1984] KECA 13 (KLR).** Guided by the principles set therein, I find and hold that the subject appeal is bereft of merits. It is a candidate for dismissal. **Final orders:** 1. Pulling the strings together, the final orders that commend themselves to the court are: 2. ***The Appeal be and is hereby Dismissed.*** 3. ***The Judgment of the learned trial magistrate dated the 31.10.2025 be and is hereby Affirmed.*** 4. ***Costs of the appeal be and are hereby awarded to the Respondents.*** 5. ***The costs in terms of clause [iii] above shall be agreed upon and in default be taxed in the conventional manner***. 6. It is so ordered. **DATED, SIGNED AND DELIVERED AT ISIOLO THIS 23RD DAY OF JULY, 2026** **OGUTTU MBOYA, FCIArb; CPM [MTI].** **JUDGE** In the presence of**:** Court Assistant: Zakayo/Mukami Mr. Kiogora Mugambi for the Appellant Mr. Kelvin Nyenyire for the 1st , 2nd and 7th Respondents . Mr. Abdullahi for the 3rd and 6th Respondents