https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3286

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **CIVIL PETITION NUMBER 13 OF 2019** **(FORMERLY CIVIL PETITION NUMBER 5 OF 2017)** **IN THE MATTER OF ARTICLE 10, 19, 20, 21, 22 (1), 23, 40 (1), (3) & (5), 60 (1), 67, 73, 251 OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF THE LAND ACT, 2012** **AND** **IN THE MATTER OF THE NATIONAL LAND COMMISSION ACT, 2016** **AND** **IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS AND** **FUNDAMENTAL FREEDOMS UNDER ARTICLE 40 Read with 260 and 47 (1) OF THE** **CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF THE PHYSICAL PLANNING ACT (CHAPTER 286 OF THE** **LAWS OF KENYA) now repealed and transitioned as THE PHYSICAL AND LAND** **USE PLANNING ACT (NO. 13 OF 2019 LAWS OF KENYA)** **BETWEEN** **MICHAEL KIBOI GATUMIA.............................................................................PETITIONER** **VERSUS** **THE COUNTY GOVERNMENT...............................................................1ST RESPONDENT** **THE COUNTY EXECUTIVE COMMITTEE** **MEMBER IN CHARGE OF LAND, PHYSICAL PLANNING,** **WILDLIFE, ENVIRONMENT AND NATURALRESOURCES……....2ND RESPONDENT** **THE NATIONAL LAND COMMISSION................................................3RD RESPONDENT** **THE CHIEF LAND REGISTRAR............................................................4TH RESPONDENT** **JUDGEMENT** **Introduction and Background** 1. The matter before this Honourable Court is in the form of an Amended Petition originating from a claim of historical administrative injustice and the alleged arbitrary deprivation of proprietary rights. The suit is instituted by Michael Kiboi Gatumia (hereinafter "the Petitioner") against the County Government of Kajiado, the County Executive Committee Member in Charge of Land, Physical Planning, Wildlife, Environment and Natural Resources, the National Land Commission, and the Chief Land Registrar, arrayed as the 1st, 2nd, 3rd, and 4th Respondents, respectively. 2. The Petitioner invokes the jurisdiction of this Court pursuant to Articles 22(1), 23(1), and 165(3) of the Constitution of Kenya, 2010, seeking the vindication of his fundamental rights, principally the right to property as safeguarded under Article 40, and the right to fair administrative action under Article 47 of the Constitution of Kenya. 3. The crux of the Petitioner's grievance stems from an alleged allotment of a parcel of land described as Plot No. 31/Industrial - Olekasasi Trading Centre (hereinafter "the suit property"). The Petitioner avers that the 1st Respondent's predecessor in title, the County Council of OlKejuado, formally allotted the suit property to him via a Letter of Allotment dated 3rd December 1986. 4. It is the Petitioner's case that he diligently settled all the requisite statutory and administrative levies over the suit property. He asserts that he paid the initial Council Annual Rent and Survey Fees in 1991, and subsequently cleared all outstanding charges and accumulated rent fees between the year 2005 and 2006. 5. The Petitioner contends that despite comprehensively fulfilling his financial obligations, the Respondents have persistently failed to issue him with a title deed, avail a surveyor’s report to delineate the plot, or allow him physical access to the property. He notes that an official search conducted in July 2009 confirmed the property's existence and his allotment status. However, despite formal demands for a surveyor in 2006, and subsequent demands for either a survey map or a refund of his monies in 2017, the Respondents have remained non-responsive. 6. Aggrieved by an impasse spanning over thirty-seven years, the Petitioner asserts that the Respondents' continued inaction constitutes a brazen and unlawful expropriation of his right to property, necessitating the intervention of this Court. 7. Consequently, the Petitioner approaches this Court seeking the following orders: 8. That there be a declaration that the Petitioner's fundamental rights and freedoms as enshrined under Articles 22(1), 40 (1), (3) & (5) & 60(1) of the Constitution of Kenya 2010, have been contravened and infringed upon by the Respondents by their refusal to grant the Petitioner the said property known as Plot Number 31/Industrial-Olekasasi Trading Centre; 9. A declaration that the Petitioner is the rightful and lawful owner of the property known as Plot Number 31/Industrial-Olekasasi Trading Centre; 10. A declaration that the Petitioner is entitled to the payment of damages and compensation for the violation and contravention of its fundamental human rights by the Respondents herein as provided for under Articles 40 (1), (3) & (5), 60(1), 67, 73 & 251 of the Constitution of Kenya, 2010, The Land Act 2012 Section 157 and The National Land Commission Act 2016 Section 11; 11. The Court to assess the quantum of damages and compensation to be paid by the Respondent; 12. A compulsory order compelling the Respondents to release to the Petitioner the Title to the said property; 13. Alternatively and with no prejudice to prayer 5, the Court compel the Respondents to give the Petitioner a parcel of land of equal dimensions, proportions, value, free of any encumbrances and/or restrictions and in the same location; and 14. Costs of this Petition. 15. The 1st and 2nd Respondents opposed the Petition through a Replying Affidavit sworn on 28th September 2017 by Joshua Lemaikai Matura, the County Surveyor for the Kajiado County Government. Characterizing the Petitioner's petition/application as mischievous, frivolous, and an abuse of the court process, the Respondents presented a divergent account of the events following the initial allotment. 16. While conceding that the Petitioner was indeed allocated Plot Number 31/Industrial - Olekasasi Trading Centre in 1986 by the defunct County Council of Olkejuado, the 1st and 2nd Respondents aver that this allocation occurred before the area was formally planned. The deponent states that the physical planning of the Olekasasi area was subsequently conducted on 24th July 2002, during which time, the industrial plots in the area were subdivided into commercial and residential plots, leaving only six industrial plots. 17. It is the 1st and 2nd Respondents' case that historical anomalies existed wherein politicians allocated more plots than were physically available on the ground, resulting in situations where individuals held allotment letters without corresponding land. To cure this and sanitize the land registry, the County Government and its predecessor in title, in conjunction with the National Land Commission, initiated validation and reallocation exercises for undeveloped plots in the years 2000, 2008, and 2016. They contend that the Petitioner was not present during any of these validation exercises, which is why he was not allocated a plot on the ground. 18. Addressing the Petitioner’s reliance on the official search records, the Respondents acknowledge that the Petitioner's name still reflects on the county registries. However, they attribute this to an administrative delay, stating that records pertaining to parcels of land are not deleted until the validation exercises are concluded across the entire county. 19. Furthermore, the 1st and 2nd Respondents point out that allotment letters issued by the defunct County Council of Olkejuado typically contained a disclaimer allowing the Council to repossess a plot if left undeveloped for two years. They clarify that this failure to develop the plot within two years was the specific reason the Petitioner's plot was repossessed. 20. The petition was canvassed by way of written submissions. **Analysis of Submissions** 1. The Petitioner’s submissions, dated 16th January 2026, condense the dispute into three primary issues for determination: the legal status of the Petitioner's title given his innocent acquisition and continuous payment of the requisite fees; the statutory authority of the Respondents to unilaterally cancel his claim or declare the suit property non-existent absent a court order; and whether the substantive reliefs sought should issue. 2. On the first limb regarding the sanctity and status of the title, the Petitioner anchors his argument on the repealed Section 23(1) of the Registration of Titles Act and the transition mechanisms under Sections 24, 25, and 26(1) of the Land Registration Act, No. 3 of 2012. Counsel submits that upon registration, a proprietor is vested with absolute and indefeasible ownership that cannot be challenged or defeated except on the grounds of fraud or misrepresentation to which the proprietor is proved to be a party. To buttress this fundamental principle of land law, the Petitioner relies on the Court of Appeal decisions in ***Dr. Joseph N.K. Ng'ok vs Justice Moijo Ole Keiwua and 2 others*** and ***Nairobi Permanent Market Society & Others Vs. Salima Enterprises***. 3. Factually, the Petitioner posits that the historical context of land transactions in the 1980s dictated that an allotment letter served as sufficient evidence for the transfer of ownership, with the formal title following the completion of statutory payments. Having diligently paid the council annual rent, survey fees, and outstanding charges between 1986 and 2006 without any involvement in fraud, the Petitioner argues he acquired an absolute claim over Plot Number 31/Industrial - Olekasasi Trading Centre. Consequently, the Respondents' failure to issue a formal title deed and grant access to the land is framed as an infringement of the rights to equality and property enshrined under Articles 27, 40(1), (3) & (5), 60(1), and 73 of the Constitution of Kenya. 4. Addressing the Respondents' authority to vitiate the allotment by claiming the plot does not exist on the ground, the Petitioner submits that statutory bodies are constrained by the express provisions of their parent statutes and cannot act ultra vires . Relying on ***Republic vs. Kenya Revenue Authority Ex Parte Aberdare Freight Services Ltd & 2 Others*** and ***Republic vs. National Land Commission ex-parte Cecilia Chepkoech Leting & 3 Others***, the Petitioner asserts that public authorities cannot vary the scope of their statutory duties to cure their own administrative errors. 5. Furthermore, the Petitioner contends that the power to rectify, amend, or cancel a register on the basis of fraud or mistake is the exclusive preserve of the Environment and Land Court under Section 80(1) of the Land Registration Act. The Chief Land Registrar’s power to rectify the register under Section 79(1) of the Act is strictly limited to formal errors, mutually consented amendments, or dimension corrections following a resurvey, none of which apply to the present circumstances . The Respondents are thus said to be estopped from unilaterally declaring the property non-existent after continuously demanding and receiving payments over decades. 6. In the alternative, should the Court find that the property was subjected to double allocation or is otherwise unavailable, the Petitioner seeks compensation. It is submitted that the State bears an obligation to compensate title holders who suffer loss due to the negligence or mistakes of the Commissioner of Lands (a duty now devolved to the Respondents). The Petitioner fortifies this prayer for compensation by citing the holdings in ***Gitwany Investment Limited vs. Tajma Limited and 3 others*, *David Peterson Kiengo and 2 Others vs. Kariuki Thuo***, and ***Vekariya Investments Limited vs. Kenya Airports Authority & 2 others*.** **Issues for Determination** 1. Having carefully considered the pleadings, the affidavits on record, and the submissions by the Petitioner, I condense the dispute into the following salient issues for determination: **a) Whether the Letter of Allotment dated 3rd December 1986 conferred legal title or proprietary interests upon the Petitioner.** **b) Whether the matter before this Court is competent and validly instituted.** **Analysis and Determination** ***a) Whether the Letter of Allotment dated 3rd December 1986 conferred legal title or proprietary interests upon the Petitioner.*** 1. The gravamen of the Petitioner’s case is that the Letter of Allotment dated 3rd December 1986 issued by the defunct County Council of OlKejuado in respect of Plot No. 31/Industrial – Ole Kasasi Trading Centre, together with subsequent payment of rates, rent, and survey fees, vested in him proprietary rights capable of protection under Article 40 of the Constitution of Kenya, 2010. 2. The 1st and 2nd Respondents while admitting that the Petitioner was allocated the suit property, contend that the allotment never crystallized into a legally enforceable title since the Petitioner failed to comply with the material conditions stipulated in the allotment letter and further failed to regularize his claim during the subsequent verification and validation exercises undertaken by the County Government of Kajiado and the National Land Commission. 3. The starting point in determining this issue is the legal effect of a Letter of Allotment. The law on this question is now firmly settled. 4. In ***Torino Enterprises Limited vs Hon. Attorney General, Supreme Court Petition No. 5 (E006) of 2022; [2023] KESC 57 (KLR),*** the Supreme Court comprehensively addressed the legal status of allotment letters and held as follows: ***“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.”*** The Supreme Court further stated: ***“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 offeror and the offeree and does not confer an interest in land at all.”...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…It is the act of registration that confers a transferable title to the registered proprietor, and not the possession of an Allotment Letter…We must reiterate the fact that an allotment letter in and by itself, is incapable of conferring a transferable title to an Allottee.”*** 1. This Court is bound by the foregoing pronouncements. The principles enunciated in *Torino Enterprises Limited case* (supra) are directly applicable to the circumstances of the present case. The Petitioner herein relies entirely on the allotment letter dated 3rd December 1986 and receipts evidencing payment of rates, rent, and survey fees. However, the receipts produced before this Court reveal that the payments were made many years after the issuance of the allotment letter between 1991 and 2006, long after the allotment. 2. The delayed payments were inconsistent with the requirement for timely compliance contemplated under the allotment regime which was thirty (30) days. More fundamentally, the Petitioner failed to comply with other substantive conditions contained in the allotment letter. 3. This issue had earlier been addressed by Nyakundi J at the interim stage of this matter. In his ruling dated 20th December 2017 delivered in this matter, the learned Judge observed that: ***“The allotment letter which is the basis (of) the petition sets out conditions to be met by the applicant. On the issue of making necessary payments there seems to be no major dispute. The property in question was to be developed within 2 years which required of the petitioner to plan and present building designs for approval to the relevant authorities; to the defunct OlKejuado County Council. There is no evidence that the petitioner fulfilled his obligations to present building plans within 6 months for approval or develop the plot as indicated in the letter within 2 years. I consider these to be conditions precedent in answer to the letter of offer besides payment of rates and rents.”*** 1. The learned Judge further held: ***“The petitioner has not produced any evidence that he accepted the offer letter with all the conditions attached as at 3rd December 1986.”*** 1. This Court fully agrees with the reasoning and findings of the learned Judge. The evidence on record does not demonstrate that the Petitioner: submitted building plans for approval within the stipulated period; developed the suit property within the required timelines; processed any lease instrument or title documents; procured survey records or deed plans in his favour; or regularized the allotment through the prescribed statutory process. 2. The Petitioner admittedly also failed to participate in the validation and regularization exercise undertaken by the National Land Commission and the County Government of Kajiado. Nyakundi J. correctly observed that: ***“The petitioner pleads clearly that he did not attend the validation and regularization exercise called by the National Land Commission in conjunction with the respondents.”*** 1. The learned Judge further stated: ***“I have considered both affidavits by the petitioner. None of these conditions have been complied with before either the National Land Commission or the Kajiado County Land Management Board.”*** 1. The Court notes that the public notice issued on 16th March 2015 required all claimants to present, inter alia: certified copies of identification documents; allotment letters; approved building plans; receipts of payment; applications for regularization; and declarations concerning the status of the land. 2. The Petitioner failed to comply with those requirements. Further, the Court takes cognizance of the Petitioner’s own letter dated 17th January 2017 addressed to the County Government of Kajiado requesting a refund of survey fees and rates paid in respect of the suit property. In the Court’s considered view, such conduct was inconsistent with the assertion that the allotment had crystallized into an indefeasible proprietary right. 3. As correctly observed by Nyakundi J: ***“The petitioner partially complied with the terms in the letter of offer on payment of rates without doing more to acquire a lease or title to the same land. In other words, the petitioner’s document dated 3rd December 1986 continued to remain a letter of offer with some of the key conditions still unfulfilled by the petitioner.”*** 1. This Court entirely agrees with that finding. The legal position remains that a Letter of Allotment, without fulfillment of its conditions and subsequent registration, does not confer ownership rights over land. 2. The Petitioner never obtained registration or title over the suit property. 3. Accordingly, and guided by the binding authority of *Torino Enterprises Limited* (supra), this Court finds that the Letter of Allotment dated 3rd December 1986 did not confer a legal title or an enforceable proprietary interest upon the Petitioner. The Court further finds that the Petitioner failed to comply with the material conditions precedent stipulated in the allotment letter and consequently failed to perfect the allotment into a registrable or legally protectable interest in land. ***b) Whether the suit before this Court is competent and validly instituted.*** 1. The 2nd critical issue for determination concerns the competence of this matter and, more specifically, the question of jurisdiction and the legal effect of its transfer from the High Court to this Court. 2. This issue is of fundamental importance, not only to the parties herein, but also as a clarification of the law governing jurisdiction, transfer of suits, and the powers of courts once a jurisdictional defect is identified. 3. The record shows that the present matter was initially instituted in the High Court as a constitutional petition. It was subsequently transferred to the Environment and Land Court on the basis that it related to land and therefore fell within the jurisdiction of this Court under Article 162(2)(b) of the Constitution of Kenya, 2010 and not that of the High Court. 4. The question that arises is whether a court that lacks jurisdiction can lawfully transfer proceedings to another court, and whether such transfer cures the defect. 5. The law on jurisdiction is settled and uncompromising. 6. In ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1***, the Court of Appeal held: ***“Jurisdiction is everything. Without it, a court has no power to make one more step.”*** 1. The Court further stated: ***“Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.”*** 1. The principle flowing from this authority is that once a court finds that it lacks jurisdiction, it must immediately down its tools. 2. The Supreme Court in ***Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR*** reiterated: ***“A court’s jurisdiction flows from either the Constitution or legislation or both. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”*** 1. In the present matter, the High Court was not clothed with jurisdiction to hear and determine disputes relating to the use, occupation, and title to land, which are expressly reserved for the Environment and Land Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, No. 19 of 2011. 2. Once the High Court appreciated that the dispute fell within the exclusive jurisdiction of this Court, it was bound in law to down its tools. It had no residual power to interrogate the merits or purport to transfer the matter. 3. The legal position on transfer of matters by a court lacking jurisdiction has now been clarified. It is now settled that jurisdiction cannot be conferred by way of transfer where none existed in the first place. 4. The Court of Appeal in ***Equity Bank Limited –vs- Bruce Mutie Mutuku t/a Diani Tours & Travel (2016) eKLR,*** had this to say on the issue; ***“In numerous decided cases, courts, including this court have held that it would be illegal for the High Court in exercise of its powers under Section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow court to transfer an incompetent suit for want of jurisdiction to a competent court with jurisdiction would be to muddle up the waters and allow confusion to reign.….A court of law should not through what can be termed as judicial craftsmanship, sanctify an otherwise incompetent suit through a transfer.”*** 1. In the case of ***Abraham Mwangi Wamigwi –vs- Simon Mbiriri Wanjiku & another (2012) eKLR***, the court held that; ***“It is therefore trite that where a suit is instituted before a tribunal having no jurisdiction, such a suit cannot be transferred under Section 18 aforesaid to a tribunal where it ought to have been properly instituted. The reasons for this is that a suit filed in a court without jurisdiction is a nullity in law and whatever is a nullity in law is in the eyes of the law nothing and the court cannot purport to transfer nothing and mould it into something through a procedure known as transfer. In other words courts can only transfer a cause whose existence is recognized by law.”*** 1. The court in the above cited case quoted with approval the decision in ***Kangenyi –vs- Musiramo 1968 (EA) 43***, where Sir Udo Udoma CJ, made it clear that an order for transfer of a suit from one court to another cannot be made unless the suit had in the first instance been brought to a court with jurisdiction to try it. 2. This Court therefore takes the opportunity to clarify for litigants that jurisdiction is not a procedural technicality that can be cured. It is the foundation of judicial authority. Where it is absent, the only lawful course available to the court is to terminate the proceedings. The import of these authorities is clear: a court without jurisdiction cannot breathe life into a null proceeding by purporting to transfer it to another court. 3. Consequently, the purported transfer of this matter from the High Court to the Environment and Land Court was undertaken without jurisdiction and is therefore a nullity. 4. Accordingly, and for the foregoing reasons, the Amended Petition is hereby **dismissed in its entirety**. 5. Given the nature of the dispute, the historical background of the claim, and the relationship between the parties, each party shall bear its own costs. Ordered accordingly. **Dated Signed and Delivered at Kajiado Virtually this 28th Day of May 2026** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Mr. Ndegwa h/b for Mrs. Onyuta for the Petitioner N/A by the Respondents Court Assistant: Alex **M.D. MWANGI** **JUDGE**