https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3941

Mahamud v Muturi & 2 others (Environment and Land Appeal E044 of 2026) [2026] KEELC 3941 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEELC 3941 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E044 of 2026 EK Wabwoto, J June 30, 2026 Between Abdi Hassan Mahamud Appellant and Purity Njoki Muturi 1st Respondent Nelson Muturi Kangata 2nd Respondent National Social Security Fund Board of Trustees 3rd Respondent (Being an appeal from the Judgment and Decree of Hon. M. A. Otindo, SPM (Senior Principal Magistrate) delivered on 23rd February 2026 in Milimani MCELC No. E284 of 2022) Judgment 1.This is a first appeal from the judgment and decree of Hon. M. A. Otindo, SPM, delivered on 23rd February 2026 in Milimani MCELC No. E284 of 2022. By that judgment the trial court entered judgment for the 1st and 2nd Respondents (the plaintiffs below) and, in summary: declared them the lawful proprietors and registered owners of the parcel known as L.R. No. TASSIA-II-97/21190/252 (“the suit property”); declared the Appellant (the 2nd defendant below) to have encroached upon a portion thereof; ordered him to vacate the encroached portion; granted a permanent injunction; awarded the 1st and 2nd Respondents general damages of Kshs. 250,000/= against the Appellant; declined mesne profits; and awarded costs against the 1st and 2nd defendants jointly and severally, with interest. 2.The Appellant, Abdi Hassan Mahamud, is aggrieved by the whole of that decision and appeals upon the nineteen grounds set out in his Memorandum of Appeal dated 9th March 2026. The 3rd Respondent, the National Social Security Fund Board of Trustees (“NSSF”, the 1st defendant below), separately filed a Memorandum of Cross-Appeal dated 28th April 2026, by which it too challenges the judgment and seeks the dismissal of the plaint. The 1st and 2nd Respondents (the plaintiffs below) resist both the appeal and the cross-appeal and pray that the judgment be upheld. 3.All three parties have filed written submissions, which I have considered together with the record of appeal, the pleadings and the authorities relied upon. This judgment determines the appeal and the cross-appeal together, the grounds being substantially interwoven. Background and the case before the trial court 4.The suit property forms part of NSSF Plot No. 21190, Tassia II Estate, Embakasi East, Nairobi, the head title to which is held by NSSF. That larger parcel was purchased by NSSF for distribution to its members and was sub-divided, amalgamated and regularised for allocation under a tenant-purchase scheme. By their plaint dated 1st August 2022 the 1st and 2nd Respondents sought a declaration that they are the lawful proprietors and registered owners of the suit property; a declaration that the defendants are trespassers; an order of eviction; mesne profits; a permanent and temporary injunction; general damages; costs; and interest. 5.The 1st and 2nd Respondents’ case was that the suit property had been allocated to one Abdifatah Mohamed Abdulle, who sold it to them in May 2012; that upon payment of the purchase price, land rates and the infrastructure development fee, and after the said Abdifatah authorised the transfer, NSSF issued them a Letter of Allotment/ownership certificate dated 10th December 2014; that they took, and have remained in, possession since 2012; and that the Appellant unlawfully entered and put up structures upon a portion of their plot in or about 2021. It is not in dispute that the 1st and 2nd Respondents were never issued with, and have never held, a registered title deed or lease for the suit property. 6.NSSF and the Appellant both filed defences denying the claim. NSSF’s case was that the purchase by its members prior to regularisation conferred only a “potential interest” to be actualised on completion of the regularisation; that following the construction of a public access road by the Nairobi Metropolitan Services (“NMS”) in or about 2020, it commissioned a resurvey and regularisation of the estate and appointed Geoner Systems Limited as its surveyor and physical planner; that by Geoner’s report the plot originally numbered 21190/252 was found to have been absorbed by the road and to be non-existent under the approved regularisation plan; and that the dispute was in any event a boundary dispute requiring prior reference to the Land Registrar under sections 18 and 19 of the Land Registration Act, 2012. NSSF also pleaded that the infrastructure development fee had been refunded to the 1st and 2nd Respondents on their own request. 7.The Appellant’s case was that he is the purchaser and occupier of a distinct and separate parcel, L.R. No. TASSIA-II-97/21190/251, re-designated Plot No. 3597 under the approved regularisation plan, which he purchased in 2006 and has occupied and developed since; that by a letter dated 3rd October 2022 NSSF confirmed him as the owner of plot 251 and issued him a beacon and plot verification certificate (No. 3597); and that he had not encroached upon the 1st and 2nd Respondents’ land. 8.At the trial, PW1 (the 1st Respondent, testifying for both plaintiffs) produced the sale agreement, the authority to transfer and the Letter of Allotment dated 10th December 2014, and relied upon a survey report of Survplans Limited dated 16th June 2021 which, upon a site visit of 15th June 2021, confirmed the existence and the measurements of the suit property and found that the Appellant had encroached approximately 18.3 square metres onto it (0.76m on one side and 1.07m on the opposite side). DW1 (for NSSF) confirmed that Survplans had been the original surveyor that carried out the sub-divisions and mutations of the parent parcel; that the Survplans report had been issued to and was known by NSSF and had not been challenged by it; that Geoner was NSSF’s appointed and paid consultant; and on cross-examination that there was never any report or communication from NMS or NSSF deleting the suit property, and none had been communicated to the 1st and 2nd Respondents. DW2 (the Appellant) testified that he bought plot 251 in 2006 but, on cross-examination, was unable to produce any sale agreement or transfer; the confirmation letter bore no plot size; and he produced no construction approvals. The Judgment of the trial court 9.On jurisdiction, the trial court held that the dispute was not a pure boundary dispute between two registered proprietors but one concerning the existence of a parcel and competing proprietary claims, so that the bar in section 18(2) of the Land Registration Act did not apply, and that it was seised of jurisdiction. On the central question it held that the defendants had failed to prove the lawful extinction of the suit property: there was no Gazette notice, no compulsory acquisition and no formal revocation; and a bare statement in a surveyor’s report that a plot is “non-existent” could not, without more, extinguish accrued rights. It found that the infrastructure development fee had been waived by NSSF, and that the refund flowed from that waiver rather than from any repudiation by the 1st and 2nd Respondents. It preferred the Survplans report (as the report of the original surveyor, issued first and unchallenged) over the Geoner report, found that the 1st and 2nd Respondents’ interest was earlier in time and lawfully acquired, found an encroachment of 18.3 square metres, and granted the reliefs summarised in paragraph 1 above. The appeal and the cross-appeal 10.The Appellant’s nineteen grounds may be condensed as follows: that the trial court lacked jurisdiction over what was, in substance, a boundary dispute requiring reference to the Land Registrar; that a Letter of Allotment confers no proprietary interest and the 1st and 2nd Respondents held no registrable title; that the suit property had ceased to exist following the NMS road and the regularisation, and the official Geoner report ought to have prevailed over the privately-commissioned Survplans report; that the 1st and 2nd Respondents, having accepted a refund of the infrastructure development fee, could not approbate and reprobate; that the trial court conflated two distinct parcels and ordered eviction from a parcel (251/3597) that was not the suit property; that it departed without justification from the prior ruling of the same court dated 7th August 2023; and that, on a proper re-evaluation, the 1st and 2nd Respondents had not discharged the burden of proof and the reliefs ought not to have issued. 11.NSSF’s cross-appeal advances five grounds. The first four substantially mirror the Appellant: (1) that the matter was a boundary dispute for the Land Registrar under sections 18 and 19 of the Land Registration Act; (2) that the trial court issued a contradictory disposition by finding encroachment “on the boundary” after holding that the matter was not a boundary dispute; (3) that the evidence showed the suit property to be non-existent under the approved regularisation plan; and (4) that the 1st and 2nd Respondents’ acceptance of the refund of the infrastructure development fee meant they had not met the conditions of allotment, thereby extinguishing their interest. The fifth ground is discrete: that the trial court erred in condemning NSSF in the costs of the suit even though it had exonerated NSSF from liability for trespass and damages. Submissions The Appellant 12.The Appellant filed written submissions dated 28th May 2026 with a bundle of authorities. Counsel submit that, this being a first appeal, the court must re-evaluate the entire record; that a Letter of Allotment confers no transferable title, only registration does, so that the 1st and 2nd Respondents held no proprietary interest capable of grounding declarations of ownership or trespass; that the trial court inverted the burden of proof under sections 107 to 109 of the Evidence Act; that the suit property had ceased to exist on the evidence of NSSF’s own pleadings; that the official Geoner report ought to have prevailed; that the finding dating the Appellant’s interest to 2021–2022 was contrary to the evidence that he purchased in 2006; that the 1st and 2nd Respondents could not approbate and reprobate; that the trial court framed but never determined the lawfulness of the Appellant’s occupation of plot 3597 yet ordered his eviction; and that the reliefs ought not to have issued. Reliance is placed, among others, on Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira; Torino Enterprises Limited v Attorney General; Wreck Motor Enterprises v Commissioner of Lands & 3 Others; Dr. Joseph N. K. Arap Ng’ok v Justice Moijo Ole Keiwua & 5 Others; and Lissenden v C. A. V. Bosch Ltd. The 1st and 2nd Respondents 13.The 1st and 2nd Respondents filed written submissions dated 18th June 2026 supporting the judgment and praying that both the appeal and the cross-appeal be dismissed with costs. They address the grounds of the Appellant and the 3rd Respondent together, the issues being common, and identify three questions: jurisdiction; whether their suit was merited and sufficiently proved; and whether they were entitled to the reliefs granted. 14.On jurisdiction, they submit that the issue was never pleaded but raised for the first time in submissions, and that both the Appellant (in paragraph 24 of his statement of defence, at page 209 of the record) and the 3rd Respondent (in paragraph 15 of its statement of defence, at page 107 of the record) expressly admitted the jurisdiction of the trial court. Parties being bound by their pleadings, they cannot resile through submissions, which are not pleadings; the point is an afterthought. They rely on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) and on Ilwe v Kaindu [2022] KEELC 13728 (KLR), where the court recognised that a dispute which is partly a boundary matter and partly one of encroachment of registered land falls within the court’s jurisdiction. They add that it is contradictory for the Appellant and the 3rd Respondent to assert simultaneously that the suit property is non-existent and that there is a boundary dispute over it: there can be no dispute as to the boundary of a parcel they say does not exist. 15.On the merits, they submit that the burden of proving the alleged extinction of the suit property lay on those who alleged it, under sections 107 and 109 of the Evidence Act, and was never discharged: there was no report from NMS, no Gazette notice, and no communication of any deletion, and the 3rd Respondent’s own witness confirmed on cross-examination (at page 319 of the record) that there was never any such report or communication. The suit property exists and was confirmed to exist, with measurements conforming to the allotment, by Survplans Limited the original surveyor who carried out the sub-divisions in a report of 16th June 2021 which was addressed to the 3rd Respondent, acknowledged by its witness, and never challenged; whereas the Geoner report was prepared later (20th July 2021), gave no reason for departing from the earlier report, and was tainted by an unexplained payment of Kshs. 30,000 made by the Appellant to that surveyor, on which the 3rd Respondent’s witness was “unsettled” (recorded at page 321). 16.As to the Letter of Allotment, they accept the holding in Torino Enterprises Limited v Attorney General [2023] KESC 79 (KLR) that an allotment letter does not of itself pass title, but submit that their case is not founded on the passing of title from the letter; it is founded on the rising of enforceable interests upon fulfilment of the conditions stipulated in the letter, and on the legitimate expectation that the title would be processed and protected once the conditions were met as the trial court held at page 336. They rely on Rukaya Ali Mohammed v David Gikonyo & Another, Kisumu HCCA No. 90 of 2014 (“once an allotment letter is issued and the allottee meets the conditions therein, the land is no longer available for allotment”) and on King’ori v Karanja & Another [2026] KECA 480 (KLR). They contend that all three conditions of the allotment purchase price, land rates and the infrastructure development fee were met, the fee having been waived by the 3rd Respondent (whose own witness confirmed the waiver and that those who had paid were refunded), so that its refund cannot found a charge of approbation and reprobation; relying on the definition of waiver in Black’s Law Dictionary, once the fee was waived its payment ceased to be a precondition. 17.On the interlocutory ruling of 7th August 2023, they submit that a subordinate court is not bound by its own interlocutory decisions, least of all a prima facie injunction ruling, once the evidence has been tested at a full trial. On reliefs, they submit that proprietorship is determined on the evidence of the parties (Mwangi v Luis [2026] KECA 649 (KLR)); that the court re-evaluated the evidence and was entitled to find encroachment (Njuguna v Mugo & 4 Others [2026] KECA 647 (KLR)); that under section 152A of the Land Act, 2012 no person may unlawfully occupy private land, and the Appellant holds no title; that trespass is actionable per se and damages need not be specifically proved (Ng’ang’a v Kenya Power and Lighting Company [2026] KECA 648 (KLR), citing Wanyeki v Bhudiya & Another [2023] KECA 87 (KLR), and Simiyu v Sinino [1985] eKLR); and that the quantum of Kshs. 250,000/= was a proper exercise of discretion (Kenya Pipeline Company Ltd v Ndegwa & Another [2023] KECA 226 (KLR)). They add that the Appellant’s own evidence the absence of any sale agreement for plot 251 and the expansion of his stated dimensions from 50ft x 80ft to 50ft x 100ft in the 2021 verification certificate confirms the encroachment. The 3rd Respondent 18.The 3rd Respondent filed written submissions dated 15th June 2026, in response to the appeal and in support of its cross-appeal, and prays that both the appeal and the cross-appeal be allowed with costs. It identifies three issues: whether the dispute touched on boundaries so as to oust the trial court’s jurisdiction under sections 18 and 19 of the Land Registration Act; whether the 1st and 2nd Respondents proved ownership or interest in the suit property; and whether the suit property is still in existence and which survey report ought to have been relied upon. 19.On jurisdiction, the 3rd Respondent submits that the plaint must be read together with the defences and survey reports, and that the dispute concerned both the boundary between the Appellant and the 1st and 2nd Respondents and whether the boundaries had been absorbed by the constructed road; that section 18(2) bars the court from entertaining a boundary dispute until the boundary has been determined; and that the trial court contradicted itself by holding the matter was not a boundary dispute (judgment, paragraph 24) yet finding encroachment on the boundary (orders 2 and 3). It relies on Azzuri Limited v Pink Properties Limited, Malindi Civil Appeal No. 93 of 2017 (boundary disputes within general boundary areas must first be referred to the Land Registrar; filing suit before referral is contra-statute; “Jurisdiction is everything”), and on George Kamau Macharia v Dexka Limited, Muranga ELC No. 195 of 2017, where a comparable suit was struck out as prematurely before the court. 20.On ownership, the 3rd Respondent invokes the settled position on Letters of Allotment in Wallace Kinuthia Kangu v Nairobi City County & Another, Nairobi ELC Appeal No. 11 of 2020 (citing Dr. Joseph N. K. Arap Ng’ok v Justice Moijo Ole Keiwua & 5 Others, CA No. 60 of 1997, and Mbau Saw Mills Ltd v Attorney General [2014] eKLR), to the effect that title comes into existence only after the issuance of a letter of allotment, the meeting of its conditions and the actual issuance of a title document. It submits that the three conditions of the allotment dated 10th December 2014 full purchase price, land rates to 2014, and the infrastructure development fee were not met, the 1st and 2nd Respondents having demanded a refund of the infrastructure fee by a letter dated 13th March 2021 (page 43), refunded by cheque dated 8th November 2021 (page 44); that no waiver letter was ever produced and the alleged waiver is an afterthought; that a letter dated 30th June 2014 (pages 39–40) had informed them of the precondition of regularisation and approval by the county; and that, per Torino Enterprises Limited v Attorney General, SC Petition No. 5 (E006) of 2022, an allotment letter is a mere invitation to treat incapable of conferring an interest in land, so that a plot resting only on an allotment letter and never gazetted cannot be subjected to the process of gazettement as proof of extinction. 21.On existence and the survey reports, the 3rd Respondent submits that regularisation by the county (letter dated 5th February 2014, pages 123–124) extinguished various plots including the suit property; that the trial court wrongly equated regularisation with compulsory acquisition under Article 40(3) of the Constitution, a matter never pleaded; and that the trial court relied solely on the Survplans report and ignored the Geoner report. It contends that the two reports were independent and concurrent (Geoner instructed 18th May 2021, Survplans completed 16th June 2021), so the premise that the later surveyor failed to explain a departure is mistaken; that Survplans relied on the proposed, unapproved plan and ignored the approved regularisation, an error of omission; and that the trial court formulated its own reasons, contrary to the principles for assessing conflicting expert evidence in Stephen Kanini Wang’ondu v The Ark Limited, HCCA No. 2 of 2014, under which expert evidence must be tested against known facts and the expert’s reasoning must stand up. It urges that Geoner’s recommendation that the approved regularisation plan be retained ought to have prevailed. The duty of this court on a first appeal 22.This being a first appeal, the court is under a duty to reconsider, re-evaluate and re-analyse the whole of the evidence on record and to draw its own conclusions, bearing in mind that, unlike the trial court, it did not have the advantage of seeing and hearing the witnesses, and making due allowance in that respect. See Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 and Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR. The court will not lightly differ from the trial court on a pure finding of fact dependent on the credibility of witnesses, nor will it interfere with the exercise of a discretion (such as the assessment of damages or the award of costs) merely because it might have exercised it differently; it will interfere only where the finding is based on no evidence, on a misapprehension of the evidence, or on a wrong principle. I approach the appeal and cross-appeal on that footing. Issues for determination 23.Upon a consideration of the pleadings, the record, the grounds of appeal and cross-appeal, and the submissions, the issues that fall for determination are:(i)Whether the trial court had jurisdiction, or whether the dispute fell to be referred to the Land Registrar under sections 18 and 19 of the Land Registration Act, 2012;(ii)Whether the suit property exists and whether the defendants proved its alleged extinction, and the incidence of the burden of proof;(iii)Whether the 1st and 2nd Respondents established a legally cognisable interest in the suit property capable of grounding the reliefs sought;(iv)Whether the finding of encroachment and trespass, and the preference of the Survplans report over the Geoner report, can be sustained on a re-evaluation of the evidence;(v)Whether the doctrine of approbation and reprobation, and the prior interlocutory ruling of 7th August 2023, assist the Appellant and the 3rd Respondent;(vi)Whether the reliefs granted ought to have issued; and(vii)The cross-appeal, costs and the appropriate orders. Analysis and Determination (i) Jurisdiction and reference to the Land Registrar 24.Sections 18 and 19 of the Land Registration Act, 2012 concern the ascertainment and fixing of boundaries of registered land. Section 18(2) provides that“the court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section.” 25.That bar is engaged where the dispute is, in substance, a contest over the location of a boundary between two acknowledged and registered parcels held under general boundaries. That is the setting of the authorities relied upon by the 3rd Respondent: in Azzuri Limited v Pink Properties Limited (Supra) and in George Kamau Macharia v Dexka Limited (Supra) c the contest was as to where a boundary lay between parcels whose existence and registration were not in issue, and the proper forum was held to be the Land Registrar. 26.This case is different in kind. Neither the Appellant nor the 1st and 2nd Respondents held a registered title; the 1st and 2nd Respondents relied on an allotment, and the very existence of the suit property as a parcel on the ground was the central matter in issue. The dispute was therefore not as to the precise position of a boundary between two acknowledged parcels, but as to whether a parcel existed at all and as to competing claims to it. As the 1st and 2nd Respondents pertinently observe, it is not open to the Appellant and the 3rd Respondent to maintain in the same breath that the suit property is non-existent and that there is a boundary dispute concerning it; if there is no parcel, there is no boundary to refer. The trial court was correct, following the reasoning recognised in Ilwe v Kaindu, to treat the matter as one of existence and competing claims within its jurisdiction, rather than a pure boundary dispute under section 18(2). 27.There is the further, and weighty, consideration that both the Appellant (statement of defence, paragraph 24, page 209) and the 3rd Respondent (statement of defence, paragraph 15, page 107) expressly admitted the trial court’s jurisdiction in their pleadings, and raised the want of jurisdiction only in submissions. While it is true, as Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd teaches, that jurisdiction is fundamental and may be raised at any stage, that principle does not convert a dispute that is not a boundary dispute into one; and parties remain bound by their pleadings, submissions being no substitute for them. The suggested contradiction in the judgment a finding of encroachment after a holding that the matter was not a pure boundary dispute is, on analysis, no contradiction: the finding of encroachment was a consequence of resolving the competing claims of ownership and possession that were properly before the court, not a freestanding exercise in fixing a boundary. The first ground of the appeal, and grounds 1 and 2 of the cross-appeal, accordingly fail. (ii) Existence of the suit property, the alleged extinction, and the burden of proof 28.The pleaded foundation of the defence was that the suit property had ceased to exist: that it had been absorbed by the NMS road and omitted from the approved regularisation plan. That was an affirmative allegation. Under sections 107 and 109 of the Evidence Act, he who asserts a fact bears the burden of proving it; the party alleging that an allotted parcel has been extinguished must prove that extinction. On a re-evaluation of the record, that burden was not discharged. 29.There was no Gazette notice, no instrument of revocation, and no regularisation document produced that identifies the suit property as deleted. Decisively, the 3rd Respondent’s own witness conceded on cross-examination (page 319) that there was never any report from NMS, nor any communication to the 1st and 2nd Respondents, evidencing any deletion of the parcel; and, as the trial court recorded (page 321), the same witness was “unsettled” when questioned about an unexplained payment of Kshs. 30,000 made by the Appellant to the surveyor whose report alone asserted non-existence. A party’s own witness having undercut the pleaded case of extinction, the trial court cannot be faulted for finding that extinction was not proved. 30.The Appellant and the 3rd Respondent are right that the trial court ought not to have analysed the matter through the lens of compulsory acquisition under Article 40(3) of the Constitution, which was not pleaded and which is the framework for divesting a registered, titled interest. But that misdirection does not assist them, because the result does not depend upon it. Stripped of the acquisition analysis, the position is simply that those who alleged that the parcel had been extinguished failed to prove it, while the 1st and 2nd Respondents produced the original surveyor’s confirmation that the parcel exists with measurements conforming to the allotment. An appellate court does not disturb a correct conclusion merely because part of the route to it was imperfectly expressed. I find that the suit property was not shown to have been extinguished, and the corresponding grounds of the appeal and cross-appeal fail. (iii) The nature of the 1st and 2nd Respondents’ interest 31.It is common ground that the 1st and 2nd Respondents never held a registered title or lease. Their claim rests upon the Letter of Allotment/ownership certificate dated 10th December 2014. The legal effect of an allotment letter is settled. In Torino Enterprises Limited v Attorney General (Supra) the Supreme Court held that an allotment letter is, of itself, no more than an offer awaiting the fulfilment of the conditions stipulated, and that even after such fulfilment a transferable title passes only upon registration; it is registration, not the possession of an allotment letter, that confers a registrable proprietary title. To that extent the Appellant and the 3rd Respondent are correct, and the trial court was in error in so far as it declared the 1st and 2nd Respondents to be the “registered owners” of the suit property. They are not registered, and no title has issued. The declaration, in that specific form, cannot stand. 32.That, however, does not dispose of their claim, for two distinct reasons which the 1st and 2nd Respondents press and which the law recognises. First, the fulfilment of the conditions of an allotment gives rise to an enforceable equitable interest and a legitimate expectation, as against the allotter, that the title will be processed and protected; the land is, in the language of Rukaya Ali Mohammed v David Gikonyo (Supra) and the approach in King’ori v Karanja (Supra), no longer available for re-allotment. In so far as Rukaya speaks of “absolute proprietary rights” arising from an allotment alone, that language must now yield to Torino: what arises before registration is an equitable and inchoate interest, not an absolute registered title. But an equitable interest it is, and it is enforceable. Secondly, and independently of title, a claim in trespass is founded upon possession; a person in actual possession may restrain a later intruder, and need not prove a registered title to do so. The 1st and 2nd Respondents pleaded and gave evidence of possession from 2012, and the encroachment found against the Appellant itself presupposes their occupation of the parcel into which he built. 33.On the conditions of the allotment, the trial court found as a fact that the infrastructure development fee had been waived by the 3rd Respondent, and that the refund flowed from that waiver, a finding corroborated by the 3rd Respondent’s own witness who confirmed both the waiver and that those who had paid the fee were refunded. A waiver, being the voluntary relinquishment of a known right, removed the payment of the fee as a subsisting condition; its refund therefore did not signify non-compliance. The absence of a written waiver goes to weight, but a waiver may be established by conduct and by oral evidence, and the trial court’s finding, resting in part on the allotter’s own witness, was open to it on the evidence. It follows that the conditions of the allotment were, on the trial court’s sustainable findings, fulfilled, and that an equitable interest and legitimate expectation arose accordingly. Grounds founded on non-fulfilment of the allotment conditions fail. (iv) Trespass and encroachment; the competing survey reports 34.The choice between conflicting expert reports is pre-eminently a matter for the trial court, to be made by testing each report against the known facts and the surrounding evidence, and by examining whether the expert’s reasoning stands up: Stephen Kanini Wang’ondu v The Ark Limited (Supra) on which the 3rd Respondent itself relies. Applying those very principles on a re-evaluation, the trial court’s preference for the Survplans report is sustainable. Survplans was, on the 3rd Respondent’s own witness’s evidence, the surveyor that had carried out the original sub-divisions and mutations of the parent parcel, and so possessed direct, foundational knowledge of these plots; its report was addressed to the 3rd Respondent and was not challenged when received; and it confirmed the existence and measurements of the suit property and the extent of encroachment. The Geoner report, by contrast, asserted non-existence, was attended by the unexplained payment of Kshs. 30,000 by the Appellant (a party adverse to the 1st and 2nd Respondents) which left the 3rd Respondent’s own witness “unsettled,” and so raised a live question as to its independence. Tested against the surrounding evidence, the preference for Survplans was rational and is not to be disturbed. 35.The 3rd Respondent’s point that the two reports were independent and broadly contemporaneous, rather than the one departing from the other, has some force as a criticism of one of the trial court’s stated reasons; but it does not displace the preference, which rests more solidly on Survplans’ foundational role, the non-challenge, and the doubt cast on Geoner’s independence. Nor does it advance the case on existence, which fails for the reasons already given. 36.On the encroachment itself, the finding is supported not only by the Survplans report (18.3 square metres) but by the Appellant’s own evidence. He stated that he purchased plot 251 in 2006 but produced no sale agreement, no transfer and no construction approvals; and his stated dimensions expanded from 50ft x 80ft, as he described the parcel he bought, to 50ft x 100ft in the verification certificate of September 2021 an enlargement of some twenty feet consistent with the very encroachment found. The complaint that the trial court conflated two parcels and ordered eviction from plot 251/3597 is, on a fair reading of the decree, not made out: the order was to vacate the encroached portion of the suit property (252), not to evict the Appellant from plot 251. The encroachment finding necessarily resolved the relationship between the two parcels the Appellant having overstepped from 251 into 252 and the eviction is confined to, and predicated upon, that encroachment. Trespass being actionable per se (Ng’ang’a v Kenya Power and Lighting Company; Wanyeki v Bhudiya; Simiyu v Sinino), the finding of trespass and the consequential order stand. (v) Approbation and reprobation; the interlocutory ruling of 7th August 2023 37.The contention that the 1st and 2nd Respondents, having accepted a refund of the infrastructure development fee, cannot approbate and reprobate falls away once the waiver is accepted. Accepting the refund of a fee that the allotter had waived is not the repudiation of a benefit under the allotment; it is consistent with the allotment subsisting. The maxim qui approbat non reprobat, and Lissenden v C. A. V. Bosch Ltd, do not assist where the act relied upon as approbation (the refund) is referable to the allotter’s waiver rather than to any election by the 1st and 2nd Respondents to disavow the allotment. This ground fails. 38.As to the ruling of Hon. Lucy Njora, SPM, dated 7th August 2023, dismissing the 1st and 2nd Respondents’ application for a temporary injunction on the prima facie view that the parcel appeared non-existent, it is trite that a finding made on a prima facie basis at the interlocutory stage does not bind the court at the conclusion of a full trial at which the evidence is tested by cross-examination. The Appellant rightly concedes as much. The trial court was entitled to reach a different and final conclusion on the full record, and did so with reasons. This ground also fails. (vi) Whether the reliefs ought to have issued 39.It follows from the foregoing that, save in one respect, the reliefs were properly granted. The declaration of encroachment and trespass, the order to vacate the encroached portion, the permanent injunction protecting the 1st and 2nd Respondents’ possession and equitable interest, and the award of general damages, all rest on sustainable findings: that the suit property exists; that the 1st and 2nd Respondents are its lawful allottees in possession; and that the Appellant encroached upon it. The quantum of Kshs. 250,000/= for an established trespass and the construction works upon the encroached portion was a matter within the trial court’s discretion, guided by Kenya Pipeline Company Ltd v Ndegwa, and no error of principle has been shown to warrant interference. 40.The one respect in which the relief cannot stand as framed is the description of the 1st and 2nd Respondents as the “registered owners” of the suit property. For the reasons given under issue (iii), they hold no registered title; what they hold, and what the evidence supports, is the interest of lawful allottees in possession, with the equitable interest and legitimate expectation arising from the fulfilled allotment, pending the issuance of title. The declaration in order 1 of the decree will be varied accordingly. To that limited extent the appeal succeeds; in all other respects the reliefs are affirmed. (vii) The cross-appeal and costs 41.NSSF’s cross-appeal, in so far as it seeks to set aside the judgment on grounds common to the appeal (jurisdiction, existence, the allotment conditions and the survey reports), fails for the reasons already given. Its discrete fifth ground that it was wrongly condemned in costs notwithstanding its exoneration from trespass and damages also fails. NSSF was the 1st defendant and actively contested the suit, advancing the defences of want of jurisdiction, non-existence of the parcel and non-fulfilment of the allotment conditions, on all of which it did not succeed. Costs are in the discretion of the court and ordinarily follow the event; a defendant who unsuccessfully resists a claim may be condemned in costs even where no monetary liability is found against it. The exercise of that discretion against NSSF discloses no error of principle. The cross-appeal is dismissed in its entirety. Disposition and Final orders 42.For the reasons set out above, and upon a re-evaluation of the whole record now that all parties have been heard, I am satisfied that the trial court reached the correct result, save only in its description of the 1st and 2nd Respondents as “registered owners” of the suit property. I make the following final orders:i)Save to the limited extent set out in order (ii) below, the appeal is dismissed.ii)The declaration in order 1 of the trial court’s decree is varied: the words “and registered owner” are deleted, and the declaration shall read that the 1st and 2nd Respondents are the lawful allottees of, and the persons beneficially entitled to and in possession of, the parcel known as L.R. No. TASSIA-II-97/21190/252 pursuant to the Letter of Allotment dated 10th December 2014, the conditions whereof were fulfilled (the infrastructure development fee having been waived), pending the issuance of title.iii)Subject to order (ii), the judgment and decree of Hon. M. A. Otindo, SPM, delivered on 23rd February 2026 in Milimani MCELC No. E284 of 2022 namely the declaration of encroachment, the order to vacate the encroached portion, the permanent injunction, the award of general damages of Kshs. 250,000/= against the Appellant, the decline of mesne profits, and the order as to costs in the lower court are affirmed.iv)The cross-appeal is dismissed in its entirety, including the discrete ground concerning the costs ordered against the 3rd Respondent in the lower court.v)Nothing in this judgment precludes the 1st and 2nd Respondents from pursuing, against the 3rd Respondent, the processing and perfection of title to the suit property in accordance with the regularisation of the scheme.vi)The Appellant shall bear the costs of the appeal payable to the 1st and 2nd Respondents. The 3rd Respondent shall bear the costs of the cross-appeal payable to the 1st and 2nd Respondents. JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JUNE 2026.E.K. WABWOTOJUDGEIn the presence of:Mr. Omar for the AppellantMr. Nanda for the 1st and 2nd RespondentsMr. Walubengo for the 3rd RespondentCourt Assistant; Joseph Letisia