https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3256

Muchoka v Mubea (Appeal E088 of 2025) [2026] KEELC 3256 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEELC 3256 (KLR) Republic of Kenya In the Environment and Land Court at Meru Appeal E088 of 2025 JO Mboya, J May 28, 2026 Between Godfrey S Muchoka Appellant and Wilson Kinyua Mubea Respondent (Being an appeal from the judgement of Hon. Atiang Mitullah – Chief Magistrate dated 11.11.2025 vide Meru CMELC No. E095 of 2022) Judgment 1.The dispute culminating into the subject appeal touches on and concerns the question as to whether a letter of allotment by and of itself, can and does bestow upon the bearer [Allottee] lawful rights and interest to the designated plot or parcel of land, which is the subject of the allotment. Furthermore, there is the incidental question as to whether receipts of the stand premium or any portion thereof, albeit out of time, creates [sic] a binding contract with the commissioner of lands [now defunct] or otherwise. 2.The foregoing observation, represents the nature of the appellant’s claim to plot number R 43-Timau Township, which is being disputed between the appellant on one hand and the respondent on the other hand. 3.Before venturing to interrogate the legal implication[s] attendant to the letter of allotment, it is important to put the subject appeal into context. I shall therefore revert to the claims that were canvassed vide the Plaint dated the 08.11.2022 and which underpinned the appellant’s claim in the lower court. 4.The Appellant [who was the Plaintiff in the lower court] filed the Plaint dated the 08.11.2022 and same raised various issues. The appellant contended thus: The suit property [unsurveyed residential plot number R 43-Timau Township] was lawfully allocated to him; the allotment of the suit plot was under taken vide the letter of allotment dated the 02.12.1992; the appellant duly accepted the allotment of the said plot; the letter of acceptance was duly relayed to the commissioner of lands; the appellant made part payment of the stand premium; the payments were made albeit out of time; the payments were received and accepted; the appellant thereafter took possession of the suit property; and the appellant is the registered proprietor of the suit property. 5.Additionally, the appellant contended that despite being the registered proprietor of the suit property, the respondent herein trespassed onto the suit property and has since erected/constructed permanent structures thereon. It is contended that the activities by and on/behalf of the respondent are illegal; and unlawful. 6.Flowing from the foregoing, the appellant sought various reliefs as against the respondent. The reliefs sought were:i.A declaration that the plaintiff is the registered owners of the un surveyed residential plot No. R 43- Timau Township.ii.An order of eviction against the Defendant jointly requiring the Defendant to vacate plot Number R 43 Timau Township forthwith and in default thereof the Officer Commanding Timau Police Station do provide security to facilitate the Defendant forceful eviction form the said land.iii.An order of permanent injunction restraining the defendant jointly and severally, their agents, relatives, employees and/or anybody else whomsoever acting on their behalf from entering, remaining on, building, cultivating and/or howsoever else interfering with the Plaintiff’s quiet possession, user and/or enjoyment of unsurveyed residential plot Number R 43 – Timau Township.iv.General damages, plus costs of the suit. 7.The respondent duly entered appearance and filed a statement of defence. The respondent denied the averments by and on behalf of the appellant. Moreover, the respondent contended that unsurveyed residential plot number R43-Timau Township was duly allocated to him [respondent] vide letter of allotment issued on the 09.01.1997. In addition, the respondent posited thus: The suit plot lawfully belongs to him [ respondent]; same entered upon and took possession; the suit plot is developed; and the appellant has no lawful rights to and in respect of the suit plot. 8.The suit in the lower court was heard by the Learned Chief Magistrate [Hon. Atiang Mitullah] who thereafter came to the conclusion that though the appellant was issued with a letter of allotment dated the 02.12.1992, the appellant did not meet or comply with the terms/conditions of the letter of allotment within the stipulated timelines. To this end, the learned chief magistrate found and held that the letter of allotment in question lapsed and thus ceased to exist in eyes of the law. 9.Furthermore, the learned Chief Magistrate found and held and the insofar as the letter of allotment had lapsed, the appellant herein acquired no lawful rights to or interest over the suit property. In this regard, the learned Chief Magistrate proceeded to and dismissed the appellants suit vide the judgment rendered on the 11.11.2025. 10.It is the said Judgment and the consequential decree, which has aggrieved the appellant and thus provoked the subject appeal. The appellant has approached this court vide memorandum of appeal dated the 24.11.2025 and wherein the appellant has canvassed five grounds of appeal. 11.The grounds are:i.The Learned trial magistrate erred in law and in fact in failing to consider the allotment offer had been accepted and the Appellant had made payment towards fulfilling it conditions within the stipulated time.ii.The learned trial magistrate erred in law by failing to appreciate that the Supreme Court decision in Torino Enterprises Ltd v Attorney General [Petition No. 5 [e006] of 2022 [2023] KESC 79 doubted the interpretation accorded in the judgment that failure to comply with the allotment terms within the 30 days voided the Appellant’s proprietary interest in the suit property.iii.The learned trial magistrate erred in law and in fact by failing to consider that the Deputy Director Ministry of Lands acknowledged the Appellants letter of offed and thus the property was not available for allotment to the Respondent.iv.The learned trial magistrate erred in law and in fact in failing to find that the respondents having unlawfully, occupied the suit property on the basis of forged allotment letter, he was liable to pay costs.v.The learned trial magistrate erred in law and in fact in failing to appreciate that the allotting authority had accepted settlement of the offer latter and thus, a legal right had been created which could not be extinguished by the court without a counter claim. 12.The subject appeal came up for direction[s] on the 24.03.2026, whereupon learned counsel for the appellant intimated to the court that same has since filed and served the record of appeal. In addition, learned counsel posited that the record of appeal was complete. To this end, learned counsel for the appellant sought directions as pertains to the hearing and disposal of the appeal. Moreover, learned counsel proposed to have the appeal canvassed by way of written submissions. 13.With the concurrence of learned counsel for the respondent, the court proceeded to and issued directions. The directions were: The record of appeal is complete; the appeal shall be heard before one Judge, siting at Meru, for one day; the appeal shall be canvassed by way of written submissions; the appellant shall file and serve written submissions within 21 days from the date of the directions; the respondent shall file and serve written submissions within 21 days from the date of service; and the appellant shall be at liberty to file rejoinder submissions [if any] within 7 days from the date of service. 14.The appellant filed written submissions dated the 30.04.2026 and wherein the appellant has highlighted four key [4] issues. The issues are: Whether the appellant had accepted the allotment and made part payment within time; the Supreme Court’s decision in Torino Enterprises Limited versus Attorney General [2023] KESC 79 was on all fours with the present case; whether the acknowledgement by the ministry of lands created enforceable rights; and whether the appellant’s legal rights could be extinguished without a counter claim. 15.Regarding the first issue, learned counsel for the appellant has submitted that upon being issued with the letter of allotment dated the 02.12.1992, the appellant herein proceeded to and generated a letter of acceptance. In addition, it has been submitted that the letter of acceptance was remitted to and duly acknowledged by the Commissioner of Lands [ now defunct] on the 31.12.1992. 16.Learned counsel for the appellant has further submitted that the appellant also proceeded to and made part payments, over and in respect of the stand premium. Nevertheless, it has been submitted that the part payment was made out of time. 17.Be that as it may, it has been contended that despite the fact that the part payment was made out of time, same was duly received, acknowledged and receipted by the ministry of lands. To this end, it has been submitted that the acceptance of the party payment albeit out of time transformed the letter of allotment from a mere invitation to treat to an enforceable exception of ownership. In addition, it has been submitted that the appellant therefore acquired lawful rights to and in respect of the suit property. 18.To buttress the foregoing submissions, learned counsel for the appellant has cited and referenced two decisions. The decisions are: Kibungei Arap Kogo versus Mary Njeri Gitiba [2021] KEELC; and Rukaya Ali Mohammed versus David Gikonyo Nambacha and another Kisumu HCC NO 9 of 2004 [unreported]. 19.Secondly, learned counsel for the appellant has submitted that the facts and the circumstances pertaining to and concerning the subject matter are separate and distinct from the facts that obtained in the case of Torino Enterprises Limited versus Attorney General [2023] KESC 79. To this end, learned counsel for the appellant has submitted that the learned Chief Magistrate failed to appreciate the distinction between the two cases and thus proceeded to and mis- applied the ratio in the Torino case. 20.Furthermore, learned counsel for the Appellant has submitted that the Supreme Court in the Torino case [supra] did not declare that the failure to meet the terms of the letter of allotment within the stipulated 30 days automatically voids the letter of allotment; and negates every interest in respect of the designated property. 21.The third issue that was canvassed by learned counsel for the appellant touches on and concerns the legal implications attendant to the acknowledgement of part payment by the Ministry of Lands. It has been submitted that the appellant herein made part payment albeit out of time. Nevertheless, it has been posited that despite the lateness, the ministry of lands duly received and acknowledged the payments. In this regard, learned counsel has submitted that the acknowledgment of the payment revived the letter of allotment; and created enforceable rights in favour of the Appellant, which ought to have been protected by the Lower Court. 22.To support the foregoing submissions, learned counsel for appellant has invited the court to take cognizance of various decisions, inter alia; Republic versus Permanent Secretary, Ministry of Lands and Housing Exparte Charles Mukabi Sihuli [2017] KEHC; and Rukaya Ali Mohammed versus David Gikonyo Nambacha and another Kisumu HCC No. 9 of 2004 [unreported]. 23.Finally, learned counsel for the appellant has submitted that the learned trial magistrate erred in law in finding and holding that the appellant rights to the suit property had been extinguished, even though there was no counter claim filed/lodged by the respondent. In addition, it has been submitted that court are obligated to uphold the pleadings filed by the parties and not to venture outside the issues captured vide the pleadings. 24.To buttress the foregoing submissions, learned counsel for the appellant has cited the decision Emuria versus Sambu and two others [2025] KECA 1033. In particular, learned counsel invited the court to take cognizance of paragraph 19 of the said decision, wherein the court of appeal highlighted the importance of pleadings and the fact that the courts of law should be guided by the pleadings in their endeavor to determine the issues in dispute. 25.Flowing from the foregoing, learned counsel for the appellant has contended that the appeal beforehand is meritorious. In this regard, the court has been invited to allow the appeal; set aside the judgment and the consequential decree of the lower court; and thereafter to enter Judgment in favor of the appellant in terms of the Plaint dated the 08.11.2022. The court has equally been implored to award costs of the appeal to the appellant. 26.The respondent filed the written submissions dated the 12.05.2026; and wherein the respondent had equally highlighted and canvassed four [4] key issues. The issues are: Whether the appellant had accepted the allotment and made part payment within time; Whether the Supreme Court’s decision in Torino Enterprises Limited versus Attorney General [2023] KESC 79 was on all fours with the present case; whether the acknowledgement by the Ministry of Lands created enforceable rights; and whether the Appellant’s legal rights could be extinguished without a counter claim. 27.Regarding the first issue, learned counsel for the respondent has submitted that even though the appellant was issued with a letter of allotment on the 02.12.1992, the appellant failed and neglected to comply with and or abide by the conditions of the letter of allotment. In particular, it has been submitted that the appellant failed to pay the standard premium within the stipulated 30 days period. 28.Furthermore, learned counsel for the respondent submitted that the receipt that was tendered by the appellant shows that part payment on account of standard premium was made on the 26.11.1999. To this end, learned counsel has posited that by the time the payment was being made [7 years later], the letter of allotment in question had lapsed and thus the payments were in vain. It has been submitted that there was no letter of allotment capable of attracting payments. 29.To buttress the forgoing submissions, learned counsel for the respondent have cited and referenced the case[s] of Njuki Versus National Land Commission and two others [2022] KEELC; Dr. Syedna Mohhamed Burhannuddin Saheb and two others versus Benja Properties Limited and two others [2007] eKLR; and Joseph Kamau Muhoro versus Attorney General and another [2021] eKLR, respectively. 30.Secondly, learned counsel for the respondent has submitted that the learned counsel for the appellant has misapprehended; misconceived; misconstrued; and misapplied the dictum in the case of Torino Enterprises Limited [supra]. In particular, it has been submitted that learned counsel for the appellant has cited the said decisions, albeit out of context. Nevertheless, it has been submitted that the supreme court was explicit that a letter of allotment lapses the moment the terms thereof are not complied with. 31.Additionally, learned counsel for the respondent has submitted that the Supreme Court also highlighted that a letter of allotment by and of itself does not confer any legal rights or interest over land. On the contrary it has been clarified that the supreme court pointed out that a title to land or an enforceable right over land, only accrues upon the issuance of the certificate of title. 32.Thirdly, it has been submitted that the mere fact that the appellant paid part of the stand premium, albeit out of time, did not revive or restore the letter of allotment, which had lapsed. In addition, it has been posited that the mere acceptance of part of stand premium by the ministry of lands did not create an enforceable right to and in favour of the appellant. 33.Finally, learned counsel for the respondent has submitted that the appellant herein had acquired no rights to and in respect of the suit property. In this regard, it has been submitted that the contention by the appellant that his rights to the suit property, were extinguished without a counter claim, is mistaken. In short, it has been posited that the allegations made by the appellant are misplaced. 34.Premised, on the foregoing, learned counsel for the respondent has submitted that the subject appeal is devoid of merits and thus, same ought to be dismissed with costs. 35.Having reviewed the record of appeal; the Judgment of the trial court; the grounds at the foot of the memorandum of appeal; and the written submissions by/on behalf of the parties, three [3] issues crystalize for consideration and determination. The issues are: Whether the appellant herein established and proved ownership of or entitlement to the suit property; whether the appellant demonstrated/established the claim of trespass by/at the instance of the respondent; and whether the learned trial magistrate reached and arrived at the correct conclusion or otherwise. 36.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. 37.Furthermore, 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. 38.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. 39.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. 40.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, 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.” 41.Back to the issues for consideration. The appellant herein approached the lower court contending that same was/is the registered owner of an unsurveyed residential plot number R 43-Timau Township. Furthermore, the appellant posited that the suit plot was duly and lawfully allocated to him vide letter of allotment dated the 02.12.1992. 42.The appellant further posited that upon being allocated the suit plot, same generated a letter of acceptance and which letter was forwarded to and acknowledged by the commissioner of lands [now defunct]. In addition, the appellant posited that he also made part payment in respect of the stand premium and which payment are stated to have been received and acknowledged by the ministry of lands. 43.Moreover, the appellant contended that even though the part payment of the stand premium was made outside the statutory/stipulated period contained in the letter of allotment, the receipt of the payment denoted acceptance on the part of the Ministry of Lands and thereby created an enforceable right/expectation over the suit property. 44.Based on the foregoing, and coupled with various letters that were tendered before the trial court by PW4 [Ojwang Omolo Patroba], the appellant posits that same is the lawful owner and proprietor of the suit property. 45.I wish to underscore that the legal implication of a failure to comply with the terms and conditions of a letter of allotment; and in particular, failure to pay the stand premium within the stipulated time, is now settled. The Supreme Court of Kenya highlighted the position in the case of Torino Enterprises Limited v Attorney General [2023] KESC 79 (KLR). The 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 CA 60/1997 [unreported]; and in Gladys Wanjiru Ngacha v Teresa Chepsaat & 4 others 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, including; Lilian Wanjeri Njatha v Sabina Wanjiru Kuguru & another, Environment and Land Case No 471 of 2010; [2022] eKLR; John Elias Kirimi v Martin Maina Nderitu & 4 others, Environment and Land Suit No 320 of 2011; [2021] eKLR; and Kadzoyo Chombo Mwero v Ahmed Muhammed Osman & 11 others, 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, 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]. 46.To my mind, the exposition of the law vide decision [supra], does not leave any room for arguments. Furthermore, the succinct and apt clarification does not warrant the misapprehension and the conflation that has been highlighted at the foot of the submissions by the appellant. It is time that legal counsel display honesty and fidelity to the law. In addition, it is also apposite that legal counsel should stop conflating; misquoting; or distorting clear decisions of the supreme court. 47.I also wish to point out that despite the clarity offered by the Supreme Court in the decision in the case of Torino [ supra], learned counsel for the appellant still found it apposite to reference decision of the Environment and Land Court; and the High Court, on the question of whether a letter of allotment whose terms have lapsed can confer any lawful rights to the design anted land. 48.On the other hand, learned counsel for the appellant also held a position that a letter of allotment, by and of itself, can create an interest in land. In particular, learned counsel posited that the mere fact that the ministry of lands, received and acknowledged the part payment of the stand premium, albeit out of time, created an enforceable right in favour of the appellant. 49.I do not wish to belabor the point. The only thing I wish to state is that the position canvassed and propagated by learned counsel for the appellant, is founded on gross misunderstanding of the obtaining position of the law. In the case of Wreck Motor Enterprises v Commissioner of Lands & 3 others [1997] KECA 391 (KLR), the Court of Appeal stated thus:Title to landed property normally comes into existence after issuance of a letter of allotment, meeting the conditions stated in such a letter and actual issuance thereafter of title document pursuant to provisions held. 50.There is no gainsaying that a letter of allotment is an invitation to treat. It is an offer made to the allottee and who is called upon and obligated to comply with the special terms and conditions thereunder. Moreover, the compliance with the terms and conditions must be undertaken within the stipulated timelines. Any default by the allottee to comply with the terms of the letter of allotment terminates the letter and renders same extinct in the eyes of the law. 51.Additionally, it is imperative to state that once a letter of allotment lapses, any payments or actions or steps taken in respect thereof, are in vain. It suffices to state that any payment made by an applicant in respect of an extinct letter of allotment, does not revive or restore the letter of allotment. In any event, any such actions or steps shall be in vain. [See the decision in Njuki Versus National Land Commission and two others [2022] KEELC; Dr. Syedna Mohhamed Burhannuddin Saheb and two others versus Benja Properties Limited and two others [2007] eKLR; and Joseph Kamau Muhoro versus Attorney General and another [2021] eKLR]. 52.Learned counsel for the appellant also contended that even though the part payment was made out of time, the Commissioner of Lands [now defunct] proceeded to and issued directions for the survey of the land. To this end, it was posited that the issuance of the instructions by the Commissioner of Lands; and the undertaking of survey conferred upon the appellant enforceable and contractual rights over the suit property. 53.I beg to disagree. Whatever actions, [if any], that may have been undertaken by or on behalf of the commissioner of lands [now defunct] after the lapse of the letter of allotment, were taken in vacuum. Such actions, whatever they are, are void and of no legal consequence. 54.In the case of Embakasi Properties Limited versus the Commissioner of Land [2019] eKLR, a Five Judge Bench of Court of Appeal dealt the with the legal implication[s] of a decision or action taken by the Commissioner of Lands outside the law. The court stated as hereunder:In the case of Said Bin Seif v. Shariff Mohammed Shatry, (1940)19 (1) KLR 9, it was stated that an action taken by the Commissioner without legal authority is a nullity; that such an action, however, technically correct, remains a nullity, and not only voidable but void with no effect 55.Furthermore, the position was also clarified by the Court of Appeal in the case of Henry Muthee Kathurima v Commissioner of Lands & another [2015] KECA 892. The Court highlighted the position in the following manner:We cite the case of Said Bin Seif v. Shariff Mohammed Shatry, (1940)19 (1) KLR 9, and reiterate that an action taken by the Commissioner of Lands without legal authority is a nullity; such an action, however, technically correct, is a mere nullity, and not only voidable but void with no effect, either as legitimate expectation, estoppel or otherwise. 56.The Commissioner of Lands may [and I repeat, may] have issued direction[s] for purposes of survey for which no firm evidence was tendered, however any such directions issued, would be incapable of creating any legal rights to and in favour of the appellant. Moreover, the directions [if any], given would have been given on non -existent letter of allotment. 57.Before concluding on this issue, there is one aspect that merit[s] mention and a short discussion. The aspect touches on and concerns the Part Development Plan [PDP] which was attached to the letter of allotment dated the 02.12.1992. The document was produced as exhibit P5. It is instructive to point out that the named Part Development Plan [if the document can be termed as such] was neither signed by the drawer nor approved by the commissioner of Lands. In addition, the document also bore no departmental approval number. 58.The question that does arise is whether such a document [sic] Part Development Plan could be deployed for purposes of generating a letter of allotment; and whether the letter of allotment [if any] generated would be lawful in the eyes of the law. The process underpinning the preparation, checking and approval of a part development plan is now settled. 59.In the case of Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), the Supreme Court underscored the significance of a part development plan in the process of alienation of what was previously Government land. The court stated thus: 104.The procedure for the allocation of unalienated land is laid out by the Environment and Land Court in Nelson Kazungu Chai & 9 others v Pwani University [2014] eKLR as follows:“…It is trite law that under the repealed Government Lands Act, a Part Development Plan must be drawn and approved by the Commissioner of Lands or the Minister for lands before any un-alienated Government land could be allocated. After a Part Development Plan (PDP) has been drawn, a letter of allotment based on the approved PDP is then issued to the allotees.It is only after the issuance of the letter of allotment, and the compliance of the terms therein, that a cadastral survey can be conducted for the purpose of issuance of a certificate of lease. This procedural requirement was confirmed by the surveyor, PW3. The process was also reinstated in the case of African Line Transport Co Ltd v Attorney General, Mombasa HCCC No 276 of 2013 where Njagi J held as follows: “Secondly, all the defence witnesses were unanimous that in the normal course of events, planning comes first, then surveying follows. A letter of allotment is invariably accompanied by a PDP with a definite number. These are then taken to the department of survey, who undertake the surveying. Once the surveying is complete, it is then referred to the Director of Surveys for authentication and approval. Thereafter, a land reference number is issued in respect of the plot 132. A part development plan (PDP) can only be prepared in respect to Government land that has not been alienated or surveyed…” 105.This process is restated in African Line Transport Co Ltd v Attorney General, Mombasa, HCCC No 276 of 2003 [2007] eKLR where it was held that planning comes first, then surveying. A letter of allotment is invariably accompanied by a PDP with a definite number, which would then be taken to the Department of Survey for surveying. Thereafter, it is then referred to the Director of Surveys for authentication and approval. It is after that process that a land reference number is issued in respect of the plot. [emphasis applied]. 60.It is the appellant who had sought to be proclaimed as the lawful proprietor of the suit property. In any event, the appellant had posited that he is the registered owner of the suit property. [ See paragraph 3 of the Plaint]. 61.It was therefore, incumbent upon the appellant to prove the root of his title or his entitlement. The burden of proo laid on the shoulders of the appellant. He was called upon to establish the root of his title. 62.Sadly, the documentation that the appellant tendered and produced before the trial court and the evidence tendered, fell short of proving the root of his title. [See the holding in the case of Presbyterian Foundation v Kibera Siranga Self Help Group Nursery School [2023] KECA 371 (KLR)]. 63.Turning to the second issue, namely; whether the appellant proved trespass as against the respondent or otherwise, it is important to underscore that the claimant [appellant] could only prove the plea of trespass; and thereafter be entitled to an order of eviction and permanent injunction, if same was able to demonstrate title to or rights over the suit property. However, I reiterate that the appellant did not demonstrate/prove title. The only thing the appellant held was an extinct letter of allotment. 64.On the other hand, the appellant could also be entitled to the eviction orders and the consequential permanent injunction, if same could demonstrate a right to immediate and exclusive possession of the suit property. Yet again, no legal or equitable basis was established or at all. In this regard, I am afraid that there was no foundation to warrant the eviction and the permanent injunction that was alluded to by the appellant. 65.To buttress the foregoing exposition of the law, I wish to reference the decision of the Court of Appeal in the case of Doshi v Chemutut & 7 others [2025] KECA 776. The court highlighted the class; cadre; or cluster of persons who can take out proceedings for trespass and recovery of vacant possession of a landed property. 66.The court stated as hereunder:Trespass, as stated by this Court in the case of Charles Ogejo Ochieng v Geoffrey Okumu [1995] KECA 169 (KLR), is an injury to a possessory right, and therefore the proper plaintiff in an action of trespass to land is the person who has title to it, or a person who is deemed to have been in possession at the time of the trespass. As for the ingredients of trespass, the Court in William Kamunge Gakui v Eustace Gitonga Gakui (Civil Appeal 16 of 2013) [2014] KECA 39 (KLR) stated that trespass is a violation of the right to possession, and that a plaintiff must prove that he has the right to immediate and exclusive possession of the land. Justice Chemutut did not name Mr. Doshi as a defendant in the suit. 67.I am afraid that the appellant did not establish the elements highlighted in the decision [supra]. He could therefore not partake of or benefit from an order of eviction; and permanent injunction. 68.The last issue which falls for consideration is whether the learned chief magistrate committed any error in finding and holding that the appellant’s letter of allotment had lapsed and stood extinguished. In particular, the learned Chief Magistrate has been accused of misapprehending and misapplying the dictum in the case of Torino [supra]. 69.However, I beg to point out that at paragraph 28 of the impugned judgment, the learned chief magistrate picked out and referenced the ratio in the Torino case. For good measure, the supreme court pointed out that a letter of allotment that had been issued in favor of [sic] Renton was deemed to have lapsed at the time of the purported transfer on account of non -compliance with the terms thereof. 70.I am unable to discern how and in what manner, the learned Chief Magistrate misapprehended and misapplied the dictum. I must point out that the learned chief magistrate correctly understood; and correctly applied the obtaining legal position, when he held that the impugned letter of allotment was extinct. 71.For the avoidance of doubt, I share in the apt; and succinct conclusion that was arrived at by the learned Chief Magistrate. Conclusion 72.It is trite; established and hackneyed that a letter of allotment by and of itself cannot confer lawful rights to land. Moreover, there is no gainsaying that title to land stemming from allotment can only come to life in the manner that was espoused in the case of Wreck Motor Enterprises Limited [supra]. 73.The appellant herein had not acquired any title to the land. The letter of allotment which the appellant relied upon was incapable of founding or hoisting the claim of ownership; or title. Final orders: 74.Flowing from the foregoing, the final orders that commend themselves to the court are:i.The appeal be and is hereby Dismissed.ii.The Judgment and consequential decree of the learned Chief Magistrate be and are hereby affirmed.iii.Costs of the appeal be and are hereby awarded to the Respondent.iv.The costs in terms of clause [iii] shall be agreed upon and in default, be taxed in the conventional manner. 75.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU ON 28TH MAY, 2026.OGUTTU MBOYA; FCIArb; CPM [MTI-EA].JUDGE.In the presence of:Court Assistant: ZakayoMr. E. Odhiambo for the AppellantMs. Lelaona holding brief for Mr. Chweya for the Respondent.