Lemlem & another v Issack & another (Environment and Land Appeal E150 of 2024) [2026] KEELC 3458 (KLR) (5 June 2026) (Judgment)

Lemlem & another v Issack & another (Environment and Land Appeal E150 of 2024) [2026] KEELC 3458 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEELC 3458 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E150 of 2024 JG Kemei, J June 5, 2026 Between Benjamin P Lemlem 1st Appellant Salome Lemlem 2nd Appellant and Adan Edin Maalim Issack 1st Respondent National Social Security Fund 2nd Respondent (Being an appeal from the judgment of Hon A Nyoike [SPM] delivered on the 29/8/2024 in CMELC NO 10157 of 2018) Judgment The case of the parties in the Trial Court 1.In the trial Court, the Appellants were the 1st and 3rd Defendants, while the 1st Respondent was the Plaintiff and the 2nd Appellant was the 2nd Defendant respectively.a.Vide an amended plaint, the Plaintiff sought orders inter alia; An order of permanent injunction restraining the 1st and 3rd Defendants herein, whether by themselves, their agents, servants, employees, invitees, and/or otherwise, from entering upon or trespassing, constructing any structures, charging, subdividing, dealing, alienating, occupying, managing, letting or otherwise using, residing and remaining or representing themselves as the registered owners of the property or in any way whatsoever from interfering with the Plaintiff’s proprietary rights, including the right to quiet possession and enjoyment over all that piece of land known as LR. NO. TASSIA I|- 97/2056/264; A declaration that the Plaintiff herein is the legitimate, lawful, registered owner of all that parcel of land known as LR. NO TASSIA II- 97/2056/264 situate in the City of Nairobi; An order directing the 2nd Defendants to cancel any letters of allotments/titles or such other documents conferring title to the 1st and 3rd Defendant or any other person over all that property known as LR. NO TASSIA II- 97 /2056/264; General damages against the 1st and 3rd Defendants for trespass on LR. NO TASSIA II- 97/2056/264; Costs of this suit on a full indemnity basis. 2.It was the Plaintiffs' case that he purchased the suit land [measuring 33 feet by 66 feet] from one Abdillahi Adan Ali [Ali] in 2014, who had previously purchased it from the 2nd Defendant upon payment of the full purchase price. 3.Following the sale agreement between the Plaintiff and Ali, the Plaintiff avers that he complied with due process by obtaining consent and the letter of allotment for the suit land from the 2nd Defendant in 2016. Subsequently, he paid the requisite fees and charges, including those for the development of the common infrastructure. He thereafter took possession of the suit premises until 2017, when the 1st and 3rd Defendants trespassed onto the land based on false claims of ownership. 4.The Plaintiff averred that he acquired a good title hence the orders sought in para 2 above. 5.Whilst denying the Plaintiffs' claim, the 1st and 3rd Defendants contended that the 2nd Defendant offered the suit land for sale to the 3rd Defendant for Kshs 315,000/-, which was later revised upwards. That she paid the purchase price in full, a payment acknowledged by the 2nd Defendant. In preparation to commence construction on the suit land, she deposited building materials on the land. Moreover, she has been in possession of the land from the time she purchased it until May 2017, when the Plaintiff lodged a false claim over the suit land. She added that she owns parcel 267, adjacent to the suit land, which she purchased from the 2nd Defendant at the same time as the suit land. 6.In further defence, she faulted the sale of the suit land to the Plaintiff on the ground that the allocation/sale of the land to the Plaintiff was invalid, as at 2014 there was no land for the 2nd Defendant to sell, having sold the same to the 3rd Defendant in 2006 and having acknowledged full payments, albeit in instalments; the 2nd Defendant failed to communicate the rescission of the sale agreement or the reallocation of the land to the Plaintiff; the 2nd Defendant did not hold any interest or title at the time of the purported sale in 2016. 7.Despite undertaking in her statement of defence to file third-party claims against the 2nd Defendant, it is notable that none were ever filed. That said, the 1st and 3rd Defendants contend that the Plaintiffs' suit does not disclose any reasonable cause of action against them. 8.The 2nd Defendant, on the other hand, supported the Plaintiff's case in its statement of defence. 9.Upon hearing the case, the Court entered judgment in favour of the Plaintiff as follows;a.A declaration that the Plaintiff is the legitimate, legal and registered owner of the suit property, LR NO. 97/2056/267.b.An order of permanent injunction is hereby issued against the 1st and 3rd Defendants by themselves, or by their agents, servants or otherwise howsoever from entering upon, remaining on or continuing in occupation of and/or otherwise dealing with or in any way whatsoever interfering with the Plaintiff’s access to use and quiet possession of the suit property.c.In default of complying with (b), the Plaintiff shall remove all of the offending structures at the 1st and 3rd Defendants’ costs and expense.d.The 1st and 3rd Defendants jointly, to pay the Plaintiff Kshs.500,000/= as general damages for trespass.e.The Plaintiff is awarded costs of the suit. 10.Aggrieved by the said judgment, the Appellants proffered this appeal on the several grounds listed as;a.The learned Magistrate erred in law and fact by declaring that the Plaintiff is the legitimate, legal and registered owner of the suit property LR No.97/2056/267 and yet recognising the fact that the 3rd Defendant had made payments to the 2nd Defendant towards the purchase of the suit property and therefore the property was no longer available for repossession and re-allocation.b.The Learned Magistrate erred in law and fact by issuing an order of permanent injunction against the 1st and 3rd Defendant by remaining or continuing in occupation of and or otherwise dealing with in any way whatsoever interfering with the Plaintiff's access to, use of and quiet possession of the suit property, yet knowing very well that the 2nd Defendant had illegally reallocated the suit property to the Plaintiff when the suit property was not available for re-allocation because the 1st and 3rd Defendant had bought the property and had been enjoying quiet and uninterrupted possession since 2006.c.The Learned Magistrate erred in law and fact by finding that the 1st and 3rd Defendant shall bear the costs and expenses to remove offending structures from the suit property and yet isolating the 2nd Defendant in all these events and leaving it unscathed and without blemish.d.The Learned Magistrate erred in law and fact by ordering the 1st and 3rd Defendant to pay the Plaintiff Kshs.500,000/- as general damages for trespass and yet they are lawful owners in their property having bought from the 2nd Defendant who illegally repossessed the property and re-allocated to the Plaintiff and continued receiving payments from the 3rd Defendant and never rescinded the sale to the 3rd Defendant.e.The Learned Magistrate erred in law and fact by awarding the costs of the suit to the Plaintiff without considering the arguments and the 1st and 3rd Defendant's case presented before the Honourable Court totally ignoring and sugarcoating the 2nd Defendant and shielding it from blame knowing very well that it is the genesis of the dispute before the Honourable Court. 11.The Appellants sought orders as follows;a.That this appeal against the judgment and decree of Hon A. Nyoike SPM be allowed as prayedb.That the judgement be set aside together with all the consequential orders.c.The costs be awarded to the Appellants. The written submissions 12.The Appellants submitted that the 2nd Appellant is the lawful owner of the suit land, having paid the purchase price in full and taken possession. The agreement or offer has not been rescinded; instead, payments have continued to be acknowledged, creating a legal presumption that the 2nd Appellant holds no good title. The Appellants invoked legitimate expectation and the right to property as a shield against the 1st and 2nd Respondents' deprivation of the suit land. 13.As to whether the Appellants have demonstrated that the suit land was sold to them by the 2nd Respondent, the Appellants submitted that the 2nd Respondent fraudulently allocated the land to the 1st Respondent without giving any notice of rescission of the contract of sale to the 2nd Appellant. The Appellants further submitted that the Court erred in its finding despite the 2nd Respondent’s admission of receipt of the purchase price. 14.The 1st Respondent did not file any written submissions. 15.In brief, the 2nd Respondent submitted that: the 2nd Appellant failed to pay the purchase price within the 90-day notice period set out in the letter dated 13/12/2012; between 2006 and 2014, she paid only Kshs. 20,000/-; a payment of 250,000/- was made on 13/3/13; a second notice was issued on 25/2/2014, but it went unheeded. The receipts relate to a different piece of land, LR 97/2056/2, not to LR No 97/2056/264; accordingly, the 2nd Appellant failed to settle the purchase price, and the land was sold to a third party, who later sold it to the 1st Respondent. 16.It was further submitted that the repossession of the suit land by the 2nd Respondent was lawful and regular, and that the 1st Respondent is therefore the legal owner of the suit land, having satisfied the 2nd Respondent’s allocation requirements. Analysis and determination 17.Having read and considered the entire record of appeal, including the grounds of appeal, the submissions, and all the material placed before the Court, the issues for determination are;a.Whether the trial Court erred in holding that the suit land belongs to the 1st Respondent and not the 2nd Appellantb.Who bears the costs of the appeal? Whether the trial Court erred in holding that the suit land belongs to the 1st Respondent and not the 2nd Appellant 18.As this is a first appeal, this Court must evaluate the evidence presented in the lower Court, bearing in mind that the lower Court did not have the opportunity to see and hear the witnesses. 19.The duty of an appellate Court is stipulated under Section 78 of the Civil Procedure Act which states as follows;1.“Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power;a.to determine a case finally;b.to remand a case;c.to frame issues and refer them for trial;d.to take additional evidence or to require the evidence to be taken;e.to order a new trial.(2)Subject as aforesaid, the appellate Court shall have the same powers and shall perform, as nearly as may be, the same duties as are conferred and imposed by this Act on Courts of original jurisdiction in respect of suits instituted therein.” 20.The principles which guide a first Appellate Court were summarized in the case of Selle & Another -vs- Associated Motor Boat Co. Ltd & Others [1968] EA 123 at P.126 as follows:“… Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression on the demeanor of a witness is inconsistent with the evidence in the case generally.” 21.A concise summary of the dispute's background is necessary. The 2nd Appellant presented unchallenged evidence that she was offered by the 2nd Respondent the opportunity to purchase the disputed land in May 2006. That she also asserts that she acquired Plot No. 267, adjacent to the disputed land. The property is situated in Tassia Estate within the City County of Nairobi and measures approximately 33 feet by 66 feet, a dimension that has become commonplace in the land market due to widespread interest in land ownership, even in smaller parcels. The purchase price was reported to be Kshs 315,000/-. 22.The 2nd Appellant further stated that on 13/12/2012, the 2nd Respondent indicated in its letter that the consideration had been revised upwards to Kshs 550,000/-, together with additional payments for land rates, rent, and survey fees. She avers that she paid the purchase price in full, with the final payment made on 9/5/2017. 23.The 1st Respondents’ case, on the other hand, is that he purchased the suit land from Ali in 2014, paid the full purchase price, and received an allotment letter dated 3/2/2016, which entitled him to ownership. 24.The 2nd Respondent led evidence and admitted offering the property to the 2nd Appellant in 2006 and that she paid Kshs 20,000/- between 2006 and 2012. Despite acknowledging the 2nd Appellant's payments, it averred that they were made after the land was repossessed and reallocated to Ali, who later sold the land to the 1st Respondent with the 2nd Respondents’ consent. 25.It is not disputed that none of the parties, being the Appellants and the 2nd Respondent, placed any documentary evidence in support of the offer and sale of the suit land to the 2nd Appellant. Section 38 (1) of the Land Registration Act provides as follows;“Other than as provided by this Act or by any other written law, no suit shall be brought upon a contract for the disposition of an interest in land—(a)the contract upon which the suit is founded—(i) is in writing;(ii)is signed by all the parties thereto; and(b)the signature of each party signing has been attested to by a witness who was present when the contract was signed by such party”. 26.The aforementioned legal provision explicitly mandates that any transfer of land be in writing. In this instance, the Court is unable to ascertain the specific terms of the offer or sale, including the completion date, default conditions, the right to rescind the agreement, and whether the 2nd Appellant possessed the right to repossess the land, along with the applicable conditions. Due to the absence of these contractual terms, the Court was kept in the dark. 27.The Court has perused the letter dated 13/12/12, which reads in part as follows;“RE: Repossession Of Nvi/block 97/2056/265 – Tassia EstateThe above subject refers.We wish to advise that the price of the above property has been revised from Kshs.315,000.00 (Kenya Shillings Three Hundred Fifteen Thousand Only) to Kshs.550,000.00 (Kenya Shillings Five Hundred Fifty Only), leaving a balance of Kshs. 530,000.00 (Kenya Shillings Five Hundred Thirty Thousand Only).Survey Fee - Kshs. 12,000.00Land Rates - Kshs. 11,406.00Land Rent - Kshs. 1,950.00Total = Kshs. 25,356.00You are also expected to pay Kshs.25,356.00 (Kenya Shillings Five Hundred Fifty-Five Thousand Three Hundred Fifty-Six Only) within 90 days from the date hereof to facilitate the transfer of the plot to you.Failure to comply may force N.S.S.F to repossess the property without further reference to you and refund the money so far received.Please note that the above amount does not include the cost of infrastructure, which shall be advised to you as soon as the civil engineer has finalised the design and costing thereof. 28.The import of this letter is that the 2nd Respondent sought to repossess the land for non-payment by the 2nd Appellant. The 2nd Appellant has admitted this letter in her statement of defence. It appears that the 2nd Appellant paid Kshs 250,000/- on 13/1/2013, at the tail end of the 90-day notice. The consequences of default were clearly spelt out, namely repossession of the land. Almost 2 years later, the 2nd Appellant still had not complied, prompting the 2nd Respondent to issue another notice demanding immediate payment of the purchase price. The 2nd Appellant did not comply until July, when she made two payments. By then, the land had been repossessed and allocated to one Ali, who later sold it to the 1st Respondent. 29.Although the 2nd Respondent accommodated the 2nd Appellant after the 90-day notice, the 2nd Appellant did not pay the balance of the purchase price until two years later, in 2016. 30.The Appellants have argued that the 2nd Respondent continued to receive and acknowledge the monies, and is therefore estopped from denying her the land. I have perused the receipt, and the land details therein refer to LR No. 97/2056/2, which is different from the suit land. No explanation has been offered as to why the alleged purchase price was received under a different land reference number, thereby casting doubt on the authenticity of the land parcel or the link with the current suit land. 31.Further, the orders sought by the Appellants are not available because the Appellants did not raise any counterclaim against the Respondents for any wrongdoing. Specifically, the 2nd Appellant alluded to fraud and breach of contract, but no plea was raised in the trial Court to enable the Court to entertain those allegations. Parties are bound by their pleadings, and on that basis the Court will say no more. 32.On the other hand, the Court found that after the 2nd Appellant failed to pay the full purchase price, the offer lapsed and the land was reallocated to Mr Ali, who sold it to the 1st Respondent and obtained a letter of allotment from the 2nd Respondent. No evidence has been adduced to impeach the 1st Respondent's title. 33.Like the learned Trial Magistrate, I find that there is no ground to impeach the title of the 1st Respondent. I also hold that the 2nd Appellant failed to pay for the land within the stipulated period, despite various notices/accommodations extended by the 2nd Respondent. 34.The 1st issue is determined in the negative. 35.In the end, I find no ground to fault the decision of the Hon Court. I find the appeal unmerited. It is dismissed with costs to the 2nd Respondent. 36.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 5TH DAY OF JUNE 2026 VIA MICROSOFT TEAMS.J G KEMEIJUDGEDelivered online in the presence of;1. Mr Leibor for the Appellants2. N/A for the 1st Respondent3. Ms Murage for the 2nd Respondent4. C/A – Ms. Yvette Njoroge