https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3842

Mwaita v Barry & 2 others (Sued as Trustees of Muslim Association of Nakuru) (Environment and Land Case 154 of 2019) [2026] KEELC 3842 (KLR) (23 June 2026) (Judgment) Neutral citation: [2026] KEELC 3842 (KLR) Republic of Kenya In the Environment and Land Court at Nakuru Environment and Land Case 154 of 2019 MAO Odeny, J June 23, 2026 Between Hillary Kipkorir Mwaita Plaintiff and Feisal Abdul Barry 1st Defendant Mohamed Nazir Khan 2nd Defendant Fais Nasha 3rd Defendant Sued as Trustees of Muslim Association of Nakuru Judgment 1.By a Plaint dated 5th December, 2019, the Plaintiff herein sued the Defendant seeking the following orders:a.An injunction restraining the Defendant (whether by themselves, employees, servants, agents, contractor and/or persons authorized by him or otherwise howsoever) from entering, from remaining on or continuing in occupation entering, trespassing into, constructing upon, alienating, transferring, leasing, wasting, damaging and or in any other manner whatsoever interfering with the proprietor’s quiet possession of the suit property known as Title No. Nakuru/Municipality Block 15/907 measuring 0.2925 Ha.b.An Order of forcible eviction of the Defendant, his employees, servants, agents, tenants and/or persons authorized by him or otherwise howsoever from the suit property or any part thereof forming part of the suit property.c.An Order for demolition of any construction encroaching on the suit property known as Title No. Nakuru/Municipality Block 15/907.d.Mesne profits and Damages for trespass for the period the illegal encroachment and occupation shall subsist until the Defendant renders vacant possession of the suit property.e.Costs of the suit.f.Any other or further relief as this Honourable Court may deem fit and just to grant. 2.The Defendants filed their Statement of Defence dated 16th March, 2020, and denied the contents of the Plaint. They averred that they were the registered owners of Nakuru/Municipality Block 15/907 having been allocated the same by the defunct Municipal Council of Nakuru. Plaintiff’s Case 3.PW1, Hillary Kipkorir Mwaita, adopted his witness statement and a further statement dated 5th December, 2019 and 22nd September, 2022, respectively as his evidence in chief. He stated that he is the registered owner of land parcel No. Nakuru Block 15/907, which he was allocated by the Commissioner of Lands vide an allotment letter dated 25th June 1999. 4.PW1 produced the following documents as Pex Nos 1 to 20, namely: 1.Land Application letter dated 5th June 1997 2.Allotment letter dated 25th May 1999. 3.Acceptance letter dated 10th July 2001 and payment receipt of Kshs.47,985/ 4.Director of Surveys approval letter dated 11th April 2001. 5.Checking fees receipt for Kshs 2,250. 6.Letter dated 14th November 2001 from the Commissioner of Lands demanding additional premium due to increase in size. 7.Forwarding letter dated 24th November 200, of a cheque for Kshs. 56,045/ and receipt. 8.Request for contribution in lieu of rates dated 10th December 2001. 9.Letter from the Commissioner of Lands forwarding the lease dated 8th January 2002. 10.Receipt for Kshs. 825/ for the search and title. 11.Lease dated 11th January 2002. 12.Certificate of Lease dated 11th February 2002. 13.Certificate of search dated 11th February 2002. 14.Beacon certificate dated 25th April 1999. 5.PW1 testified that the Defendant is the registered owner of title No. Nakuru Municipality Block 15/872, which is adjacent to his plot. He testified that he applied to the Commissioner of Lands through the Minister of Lands and Settlement on 5th June, 1997 for allocation of the suit parcel, which was assessed by the then Provincial Commissioner Yusuf Haji and approved by the late President Moi on 18th June, 1997 (Pex No.5) and was later issued with an allotment letter on 25th May, 1999. 6.It was PW1’s testimony that in November 2019, the Defendant begun the construction of a permanent fence and in the process encroached on his parcel of land which led him to reach out to the Defendant’s community leaders and reported the matter to the Police station but to no avail. 7.PW1 further testified that his parcel is distinct from the Defendants which measures 6 acres while his is ½ acre and that the land had been surveyed with beacons placed with no overlap. PW1 urged the court to allow the orders as prayed in the Plaint against the Defendant. 8.Upon cross-examination by Mr. Murithi, for the 1st Defendant, PW1 confirmed that the acreage was 0.1850 Hectares while the annual rent was 7,600/=. He admitted that the acreage in the title deed was 0.2925 Hectares, while the rent payable was Kshs.17,500/=. PW1 also stated that he did not know why the figures were different and that he paid the stand premium on 27th November 2001, which was more than one year after the issuance of the allotment letter. 9.However, PW1 told the court that he wrote a letter dated 24th November, 2001 which confirmed payment after an increase in acreage, and further that there was a letter dated 14th November, 2001 from Survey of Kenya, Commissioner of Lands which indicated the increase in the acreage, annual rent and stand premium for plot G. PW1 also testified that as at 14th November, 2001 Plot No. Nakuru Municipality Block 15/907 never existed and the letter dated 11th April 2001 referred to the suit plot Block 15/907. 10.Upon cross-examination by Mr. Maina, for the 2nd Defendant, PW1 was referred to a PDP which he denied having seen before. He confirmed that there was a primary school at portion ‘D’ Parcel ‘A’ was a mosque ‘B’ – residential and ‘C’ a primary school and signed by Commissioner of Lands on 24th April, 1996. 11.PW1 was also referred to the allotment dated 6th October, 1993 from UNS-Mosque, and confirmed that page 4 was an acceptance letter dated 19th November, 1993, by the Muslim Association. He also stated that a cheque for payment of Kshs.2880/=, vide a Bankers cheque dated 9th November 1993, was made by the Defendant. PW1 also confirmed that the Defendant was not to pay any stand premium. 12.It was PW1’s evidence that R793/16 – the PDP referred to the same plot and the letter of allotment to the Muslim Association. He stated that he could not comment on the fact that the land was listed for a primary school and a mosque and at the same time, was available for allocation. 13.Upon re-examination, by Mr. Kibet, he stated that the allotment letter dated 6th October, 1993 was in respect of freehold land outside Nakuru Municipality. Defence Case 14.DW1, Faez Nasher adopted his witness statement dated 24th May 2022, and stated that he is the current chairman of the Muslim Association of Nakuru. He further stated that the suit property was allocated to the Muslim Association of Nakuru by Municipal council of Nakuru vide an allotment letter dated 6th October, 1993, accepted the offer on 19th November 1993, and paid Kshs.2,880/= as stand premium. 15.DW1 produced a list of documents dated 16th March 2020, as Dex No. 1 to 5, and a supplementary list of documents dated 11th May, 2023, as Dex No. 6. It was his evidence that the suit plot was marked ‘A’ in Dex No. 6, in the PDP and that there was a primary school which belonged to the Muslim Association of Nakuru. 16.DW1 further stated that they were allocated 2 plots but they were unable to process the title immediately as there were wrangles amongst the officials, and upon following up they found that the Plaintiff had been issued with the title. He further testified that they reported to EACC, which recovered 4 out of 5 plots that had been grabbed. He testified that the suit land belonged to the Defendant but was wrongly allocated to the Plaintiff. 17.Upon cross-examination by Mr. Maina, he stated that the plot had been reserved for a Mosque to serve the primary school and the public. 18.On cross examination by Mr. Kibet, DW1 stated that they had another title for the school, measuring 2.3Ha in the allotment letter and the title issued was 1.75Hectares instead of 2.3Ha. DW1 confirmed that they had not filed a case against the Plaintiff but had lodged a caution on the suit land in 2005. It was his testimony that he became the chairman of the Muslim Association in 2022, and as regards the 2 plots, one was a leasehold for 99 years while the other was a freehold, and got the beacon certificate for the school on 24th April 1999. 19.Upon re-examination, by Mr. Muriithi, DW1 stated that they were allocated 2 plots and issued with 2 allotment letters, and that the allotment letter dated 22nd December, 1998, was 2.3 Hectares for 99 years. Plaintiff’s Submissions 20.Counsel for the Plaintiff filed submissions dated 7th April, 2026 where he identified the following issues for determination:a.Whether the Plaintiff’s title has been lawfully challenged or impeached.b.Whether a license or allotment interest can override a registered titlec.Who should bear the costs of the suit? 21.On the first and second issues, counsel submitted that the suit was between a registered owner of land and a person claiming purchaser’s licensee interest while waving an unperfected allotment letter. Counsel relied on Section 26 of the Land Registration Act and the case of Torino Enterprises Limited V Attorney General (Petition 5 E006 of 2022 [2023] KESC 79 (KLR). 22.Mr. Kibet, further submitted that the Defendant’s claim as a licensee of an unperfected allotment letter could not defeat a registered interest in land, and relied on the case of Le Pleidi Investment Limited V Director of Survey, Ruaraka Nairobi & 6 Others; CECM Lands Kilifi County & another (Interested Parties) (Environment & Land Case E76 of 2023) [2024] KEELC 3267 (KLR). 23.It was counsel’s submission that the Plaintiff holds a valid certificate of lease over the suit parcel which title has not been challenged on the grounds of fraud or misrepresentation attributable to the Plaintiff, and that the title remained unshaken. He further stated that the Defendant failed to plead or prove any fraud or illegality on the part of the Commissioner of Land in the issuance of the title to the Plaintiff, and relied on the case of Joseph Arap Ngók V Justice Moijo ole Keiwua & 5 Others [1997] eKLR and Arthi Highway Developers Limited V West End Butchery Limited & 6 Others [2015] eKLR. 24.Additionally, counsel submitted that in the case of two competing interests, the law favours the registered one, and that the Plaintiff had a valid title to the suit property and therefore the Defendant had no legitimate claim in the Plaintiff’s property. Further that the Plaintiff’s title was first in time and relied on the case of Wreck Motors Enterprises V The Commissioner of Lands & 3 Others [1997] eKLR, and urged the court to allow the Plaintiff’s claim with costs. Defendant’s Submissions 25.Counsel for the Defendant filed submissions dated 8th May 2026 and identified the following issues for determination:a.Which party is the legal and or registered owner of all that parcel of land known as Nakuru Municipality Block 15/907.b.Whether or not the Plaintiff herein is entitled to the orders sought. 26.On the first issue as to who is the legal owner of the suit land, counsel reiterated that the Defendant is the rightful owner of the suit land having been issued with an allotment letter for unsurveyed Mosque site measuring 0.2 Hectares, however the defendant delayed in processing the title due to internal wrangles within the Association. 27.Counsel submitted that upon payment of the requisite stand premium, the land was not available for reallocation and relied on the cases of Mwangi v Mwangi & another [2026] KEELC 898 (KLR), Rukaya Ali Mohamed vs. David Gikonyo Nambacha & Another Kisumu HCCA No. 9 of 2004, and Republic V City Council of Nairobi &3 Others [2014] eKLR. 28.Mr. Muriithi submitted that the defendant having complied with the terms of the allotment letter, it was not available for allocation to a third party and there was no evidence of cancellation of the allotment letter, and relied on the case of Nelson Kazungu Chai & 9 Others vs. Pwani University College (2014) eKLR. 29.According to counsel. the Plaintiff’s claim arises from an allotment letter dated 25th May 1999, in which the plaintiff paid the premium after the expiry of 30 days. Counsel stated that the letter of allotment had expired as it was not paid within the stipulated time and relied on the cases of Southfork Investment Limited v Esquire Investments Limited & 5 others; Maina (Intended Interested Party) [2023] KEELC 22490 (KLR), Syedna Mohamed Burhanuddin Saheb & Others vs Benja Properties Limited & 2 Others [2007] KEHC 292 (KLR. 30.On the issue of whether the Plaintiff is entitled to the orders sought, counsel submitted in the negative and stated that the Plaintiff has failed to establish ownership of the suit parcel of land and relied on Section 3(1) of the Trespass Act. Counsel further submitted that a party seeking eviction orders must establish his right or ownership of the parcel of land and as regards mesne profits the Plaintiff neither proved nor placed material before the court to assist in assessing the same. Counsel cited the case of Peter Mwangi Mbuthia & another -v- Samow Edin Osman [2014] eKLR, and urged the court to dismiss the case with costs. Analysis And Determination 31.The issues for determination are whether the Plaintiff has proved that he is the rightful owner of the suit land, whether the Defendant is a trespasser and who is to bear the costs of the suit. 32.The Plaintiff’s case is that he made an application for allocation of land, and was subsequently allotted land parcel No. Nakuru/Municipality Block 15/907 the suit property, vide allotment letter dated 25th May, 1999, and paid the stand premium of Kshs. 47,985/. He also testified that he met all the conditions stipulated in the allotment letter and was issued with a Certificate of lease dated 11th January, 2002. 33.It was the Plaintiff’s testimony that the Defendant trespassed onto his suit parcel by fencing part of the land and yet the Defendant’s land already had its beacons in place and urged the court to allow the prayers as sought in the Plaint. The Plaintiff produced 20 documents as exhibits showing the chronology of events leading to the acquisition and issuance of a Certificate of title to the suit land. 34.The Defendant’s case was that they were allocated the suit property vide allotment letter dated 6th October, 1993, whereby they complied with the terms of the allotment letter by paying the Kshs.2,880/= as stand premium and accepted the offer on 19th November, 1993. 35.From the evidence on record, it is clear that the Plaintiff applied for allocation of land vide a letter dated 5th June 1997, was issued with an allotment letter dated 25th May 1999, accepted the offer vide a letter dated 10th July 2001 and paid Kshs. 47,985/, got an approval letter from the Director of Surveys dated 11th April 2001, and another letter dated 14th November 2001 from the Commissioner of Lands, demanding additional premium due to increase in size, which he paid vide a letter dated 24th November 2001 for Kshs. 56,045/, letter from the Commissioner of Lands forwarding the lease dated 8th January 2002, lease and lease certificate dated 11th February 2001 and a beacon certificate. 36.The Defendant also gave evidence that, the Muslim Association of Nakuru was allocated the suit land by the Municipal Council of Nakuru vide an allotment letter dated 6th October,1993, which they accepted on 19th November 1993, and paid Kshs.2,880/= as stand premium. 37.The Defendant also stated that they were allocated 2 plots but they were unable to process the title immediately as there were wrangles amongst the officials, and upon following up they found that the Plaintiff had been issued with the title. The Defendant further testified that they reported to EACC, which recovered 4 out of 5 plots that had been grabbed, and that the suit land was wrongly allocated to the Defendant. 38.It is also on record that the Defendant was initially allocated land-measuring 2.3Hectares in the allotment letter; however, the title that was issued was 1.75Hectares instead of 2.3Ha. The Defendant did not sue the Plaintiff to claim the land that they believed was theirs. The wrangles also hindered the Defendant from processing the title. 39.This case is about the root of title, where two parties are claiming the same parcel of land. In such a case, the court must trace the root of the title, whether the proper procedures for allocation and acquisition were followed. 40.In the case of Munyu Maina Vs. Hiram Gathiha Maina [2013] eKLR it was held that:“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register”. 41.In an acquisition through a letter of allotment, a party must provide a copy of the letter of allotment, map, special conditions and payment receipt of the statutory fees and once this is complied with a survey is done, a Registry Index Map and the survey details are obtained and forwarded to the Commissioner of Land previously or currently to the National Land Commission for preparation of lease documents. 42.A party must also comply with the conditions on the letter of Allotment, which requires that a party accepts the letter of offer and pay the stand premium within 30 days failure to which the offer lapses. A party may request of additional time in writing to pay the premium outside the stipulated 30-day period. The allocating authority must also give such approval in writing allowing, the party to pay the premium outside the 30 days. 43.It is on record that the Defendant was allocated the suit parcel of land on 6th October 1993, accepted the offer vide a letter dated 19th November 1993, and paid the premium within the stipulated period. The Defendant was the first to be allocated the land, fulfilled the terms and conditions of the letter of allotment but was issued with less acreage than the one offered in the letter of allotment. It is also on record that this land had been allocated for public use as a mosque and a primary school. 44.The Plaintiff claimed that he had been allocated land in 1997, which is 5 years after the Defendant had been allocated and taken possession, and processed a title for the school and the Mosque. 45.In the Supreme Court case of Torino Enterprises Limited v Attorney General (Petition 5 (E006 of 2022) (2023) KESC 79 (KLR) (22 September 2023) (Judgment) the court stated/held:“...The respondent also challenged the letter of allotment on grounds that at the time of its transfer, the conditional thirty (30) days acceptance period had lapsed. .... The appellant’s ownership is traced to this allotment letter even if subsequently registered under the Registration of Titles Act... An allotee, 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.....” 46.The Plaintiff relies on the title that was issued to him on the basis of the allotment letter which was issued after the same had been issued to the Defendant for the purpose of constructing a school and a mosque The land was reserved for a public purpose. A letter of allotment must be perfected and must not suffer from any irregularity or non-compliance with the conditions of the allotment. The Plaintiff failed to comply with the 30-day period for payment of the stand premium. 47.The plaintiff’s root of title, even though he produced the chronology of acquisition of the title, however the subsequent processes of acquiring the lease and certificate of title were tainted, as the Plaintiff had started on a wrong footing due to non-compliance with the conditions of the letter of allotment. 48.The Plaintiff did not produce a PDP, which is attached to the letter of allotment and when the defendant showed him the PDP, he confirmed that he was not aware of it, he stated that there was a primary school on the portion marked ‘D’, ‘Á’ for a Mosque, ‘B’ residential, and ‘C’ a primary school signed by the Commissioner of Lands on 24th April 1996. 49.Further, in the case of Ravji Karsan Sangani V Peter Gakunu [2019] eKLR, the court held:“It is registration of title that confers rights of ownership to a proprietor of land. A letter of allotment does not confer rights of ownership but is merely a conditional offer of the land to the allottee subject to the allottee satisfying the terms and conditions of the allotment. The allotment can be revoked and/or cancelled before the title to the land is processed and issued in the name of the allottee. It is only after one has adhered to the requirements set out in the Letter of Allotment and is subsequently registered and issued with title that one acquires an absolute and indefeasible proprietary interest in the land.” 50.I note that the Defendant filed a defence but did not file a counterclaim for the cancellation of the Plaintiff’s title. Similarly, EACC made an application to be joined as an interested Party, filed pleadings including a counterclaim which was unprocedural. EACC later withdrew its pleadings hence was no longer a party to this suit. 51.The court is guided by the pleadings of the parties and cannot go out of its way to grant orders that have not been prayed for. That would attract an instant appeal. 52.The court will therefore decide the case based on the pleadings, the evidence on record and the question on the root of title. I find that the plaintiff has not proved that he acquired the letter of allotment procedurally, the Defendant having been allocated the land in 1993, for a public purpose being a school and a mosque. There was no evidence indicating that the initial allotment letter had been canceled or withdrawn, the defendant having complied with the terms and conditions of the letter of allotment. 53.The upshot is that the Plaintiff’s suit is dismissed with costs to the Defendant. DATED, SIGNED AND DELIVERED AT NAKURU THIS 23RD DAY OF JUNE 2026.M. A. ODENYJUDGE