Okara v Turere & 5 others (Environment and Land Appeal E016 of 2023) [2026] KEELC 3217 (KLR) (21 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT KAJIADO** **ELC APPEAL NO. E016 OF 2023** **LUCAS KIBEGWA OKARA .....................................APPELLANT** **VERSUS** **SIMON MOSIKA NKATET TURERE .………..…1ST RESPONDENT** **DUNCAN TURERE …………………..……..………2ND RESPONDENT** **AGNES TURERE ………………..…………… …….3RD RESPONDENT** **COUNTY GOVERNMENT OF KAJIADO ………4TH RESPONDENT** **NATIONAL LAND COMMISSION …..…………..5TH RESPONDENT** **REGISTRAR OF LANDS, KAJIADO …………..6TH RESPONDENT** ***(Being an Appeal against the Judgement of Hon. I.M. Kahuya in Kajiado CM ELC No. E078 of 2021 delivered on 19th April 2023)*** **J U D G M E N T** 1. In her **Judgment dated 19th April 2023 in Kajiado CM ELC No. E078 of 2021**, Hon. Kahuya held: ***“… the 4th Defendant through the County Registrar admitted that the two letters of allotment were legally issued by their office. Therefore, vide the doctrine of equity, the letter of allotment dated 18/6/1987 (belonging to the 1st -3rd Defendants) prevailed over the letter of allotment dated 21/4/1994 (belonging to the Plaintiff) thus its sanctity ought to be retained by this court. In conclusion, the Plaintiff’s case fails thus the same is dismissed with costs to the 1st - 4th Defendants.*** 1. Aggrieved, by the said decision the Appellant filed a **Memorandum of Appeal** dated **8th July 2023** seeking the setting aside of the judgement on 23 grounds of Appeal that: 2. ***The Trial Magistrate erred in fact and in Law by speculating and proceeding on account of such speculation, that the 4th Respondent “could have entered appearance and filed their Statement of Defence” and that “It was likely that their pleadings were misfiled by the registry.”*** 3. ***The Trial Magistrate erred in fact and in law by reducing the entire claim as a case of fraud only when there were other claims including:*** ***a. a claim of trespass to Land by the 1st to 3rd Respondents;*** ***b. breach of the right to fair hearing by 4th to 6th Respondents;*** ***c. Wrongful omissions, commissions and abuse of power by the 4th to 6th Respondents.*** 1. ***Having found that the 1st to 3rd Respondent trespassed to the suit property, the Trial Magistrate erred in fact and in Law by implying that unintentional trespass confers legal rights.*** 2. ***The Trial Magistrate erred in fact and in Law by holding that any illegality in an administrative decision by the 4th Respondent could only be challenged through Judicial Review.*** 3. ***The Trial Magistrate erred in fact and law by making a declaration that the allotment letter dated 18/6/1987 prevailed over the one dated 21/04/1994 when there was no prayer to that effect before the Court. In essence, the Trial Magistrate entertained a non-existent claim by the 1st to 3rd Respondent on behalf of a deceased person without grant of letters of administration to institute a case.*** 4. ***The Trial Magistrate erred in fact and in law by holding that the Appellant had not provided any evidence as to ownership of suit property yet there was evidence by the 4th Respondent showing the Appellant as the owner of the suit property.*** 5. ***The Trial Court erred in fact and in law by admitting as evidence a letter of allotment that had not been served to the Appellant denying him the right to fair trial.*** 6. ***The Trial Court erred in fact and in Law by sustaining the defence by the 1st to 3rd Respondents who admitted that the suit property did not belong to them but to their deceased father and did not have grant letters of administration.*** 7. ***The Trial Court erred in fact and in Law by overlooking breaches of law and confessions of illegalities on the part of the Respondents including possible intermeddling.*** 8. ***The Trial Court erred in fact and in law by awarding the Respondents costs when there were admitted wrong doings and illegalities on their part.*** 9. ***The Trial Magistrate erred in law and in fact in dismissing the Suit.*** 10. The Appellant thus sought the following orders:- 11. **The Appeal be allowed and the judgement delivered on 19th April 2023 together with all consequential orders be set aside.** 12. **The prayers sought in the Plaint at the Lower Court be allowed together with costs of the Appeal and the suit at the lower Court.** 13. **Any other relief the Court may deem fit and just to grant.** 14. This Appeal was canvassed by way of written submissions. **SUBMISSIONS OF THE APPELLANT** 1. It was submitted that both the allotment letter of 18th June 1987 and that of 21st April 1994 were issued by the 4th Respondent and the official search from Kajiado County Government showed that the Appellant was the owner of property, and this evidence was not impeached. Evidence of rates payment was also produced. Additionally, investigations from the Directorate of Criminal Investigations affirmed that the suit property belonged to the Appellant. It was argued that the allotment issued in 1994 to the Appellant revoked the one issued in 1987 and any claim by the Respondents was time barred. 2. On the issue that the 1st, 2nd and 3rd defendants did not have authority to sustain the defence as provided by Section 82(a) of the Law of Succession Act. This is because they did not produce any grant of letters of administration or probate for them to sustain a case on behalf of the alleged deceased owner. Reference was made to the Court of Appeal case **Virginia Edith Wambui Otieno v Joash Ochieng Ougo & another [1987] eKLR** which held that actions undertaken on behalf of a deceased person without letters of administration were null and void. 3. On the issue that the trial court made findings based on speculation, it was submitted that there was no evidence that the 4th Respondent entered appearance or defended the suit, meaning that the claim against it was uncontroverted. However, the Magistrate erred in finding that since the 4th Respondent actively participated in the suit, its pleadings could have been misfiled by the registry, without evidence to support this. Reference was made to **Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR** which held that Courts must base their decisions on evidence properly before them and must refrain from engaging in speculation. 4. On the trial Court’s basis that the suit was entirely based on fraud, it was submitted that the Appellant made several claims against the Respondents including trespass but the learned Magistrate only made a determination on the issue of fraud thus delivering an incomplete judgement. 5. It was also submitted that the finding that the Respondents unintentionally trespassed on the suit property because they believed it was theirs and relying on allotment letter issued in 1987 which was not served to the Appellant was an injustice contrary to the right to fair trial. And also erred in finding that an administrative action against the 4th Respondent could only be addressed through judicial review proceedings. 6. As such, the dismissal of the Appellant’s suit was erroneous and the Appeal should be allowed together with the reliefs sought. **Submissions of the 1st, 2nd and 3rd Respondents** 1. On whether the Respondents had *locus standi* to defend the suit, it was submitted that the issue was raised at the Appeal stage, adding that the Respondents were sued in their personal capacities not as representatives of the Estate of the late Turere and had all the authority to defend themselves. Since fraud was claimed against them, they were tasked to prove how they were in occupation of the suit property. It was also submitted that since the Appellant was aware of the demise of the late Turere, then it could be argued that the Respondents were wrongly joined for him to claim that they had no locus standi and that the effect would be striking out the suit. 2. On whether the Respondents proved their ownership over the property in question, it was submitted that the Appellant claimed to have purchased property LR No 194/Business Olooloitikoishi- aka LR No.194/Bus from one Riyies Ole Koite in the year 2002 and that the property was allotted to the said Riyies in the year 1994. However, the Respondents lay claim over LR No. A38 Olooloitikoishi formerly LR No. 70 Business which was allocated to Stephen Ole Turere in the year 1987 which the Respondents occupy as beneficiaries of the Estate of the late Ole Turere. It was submitted that at the trial Court, the surveyor’s report confirmed that indeed two letters of allotment were issued, however, parcel 194/Business Olooloitikoshi could not be located in any of the maps produced by the surveyor and its location could not be ascertained questioning its existence. And that the only parcel belonging to the Respondents that was ascertained was parcel A38 Olooloitikoshi formerly known as 70 Business. As such, the two properties were different and distinct from each other and the allegation of fraud was not proved. It was also argued that even if this was a case of double allocation, the allotment letter issued in 1987 was first in time and the Respondents were lawfully in possession of the property allocated to the late Turere. Reference was made to **Ashmi Investment Limited v Riakina Limited & another [2021] KECA 184 (KLR)**, **Wreck Motors Enterprises vs. the Commissioner of Lands and Others** and **Gitwany Investment ltd vs. Tajmal Ltd & 3 Others (2006) eKLR**. 3. As such, the Appellant had not proved an arguable appeal and the same should be dismissed together with costs. **Analysis and determination** 1. I have considered the Memorandum of Appeal, Record of Appeal, submissions, and legal authorities. I find that the issues for determination are: 2. **Whether the Learned Trial Magistrate erred in finding that the allotment letter dated 18th June 1987 prevailed over the Appellant’s letter of allotment dated 21st April 1994.** 3. **Whether this Appeal is merited.** 4. **What orders should issue.** 5. **Who should bear costs of the Appeal** 6. This being a first Appeal, the court has a duty to re-evaluate the case and make its own determination taking into consideration that it neither saw nor heard the witnesses. See **Ethics and Anti-Corruption Commission & 5 others v Henry Morara Ongwenyi & 3 others [2019] KECA 438 (KLR)**. 7. In ***Selle Vs Associate Motor Boat Co (1969) EA 123*** the court of Appeal stated as follows: - “An Appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which the Court acts in such an appeal are well settled. Briefly put, they are, that this court must reconsider the evidence, evaluate itself and draw its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this 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 points to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witnesses inconsistent with the evidence in the case generally” 1. The history of the dispute revolves around two letters of allotment one issued in 1994 for parcel LR No 194/ Business Olooloitikoishi and another one issued in 1987 for parcel LR No 70/ Business Olooloitikoishi. 2. The Appellant claims that he is the owner of parcel LR No 194/ Business Olooloitikoishi, also known as LR No 194/Bus measuring approximately 5000 square feet (0.0465 hectares) having bought it from one Riyies Ole Koitee who was allocated the said parcel in the year 1994. On 4th March 2002 the 4th Respondent registered the Appellant as the owner. He went on to pay rent and rates from the year 2002 until 2010, when an ownership dispute arose. 3. He claimed that in 2010 a validation exercise of parcels of land within Olooloitikoshi Township was conducted where property owners were to identify their respective plots. During that exercise, the Appellant identified his parcel and stood thereon. He however noted that there were activities being carried out on part of his land such as part of the property had been fenced of, a pit latrine constructed and some bricks placed thereon. He was not aware who had undertaken these activities. 4. It was his case that at the validation exercise he was the only party present at the suit property, but, the County Surveyor declined to validate his ownership due to these activities. He was asked to file a report to the Clerk to the County Council which he did and also made several attempts to have the dispute determined. 5. He conducted his own investigations and established that the 2nd Respondent was the person behind the activities on the suit property, a fact that was confirmed by the Olkejuado County Council. The 2nd Respondent together with the Appellant were then summoned in an attempt to resolve the dispute. 6. On 6th June 2012, the Appellant together with Mr. Riyies Ole Koitee (the seller of the suit property) honoured the summons and presented themselves at the Olkejuado County Council offices, but the 2nd Respondent failed to appear. This meeting was adjourned and another meeting was slated for 24th July 2013 at the suit property. However, the County Surveyor, one Mr. Okoth Angira failed to turn up for the meeting. Another meeting was then set for 24th April 2014 where the Appellant, the 4th respondent’s surveyors and a representative from the 4th Respondent were present. However, the 2nd Respondent once again failed to attend the meeting. He went on to claim that the surveyors did not produce the original map neither did they indicate the position of the suit property on the revised map. 7. In an attempt to resolve the dispute, the Chief Land Officer, of the 4th Respondent proposed that the suit property be divided equally among the Appellant and the 3rd Respondent although she was not party to the dispute. He stated that the decision to apportion the property between him and the 3rd Respondent was arrived at in his absence and without his consent. It is his case that in 2021, the 1st Respondent also trespassed on the suit property and began developing it, defeating the Appellant’s right to his property. 8. The Appellant cited fraud on grounds that the 4th Respondent did not produce accurate maps reflecting the suit property; the 4th Respondent did not validate the Appellant’s legal ownership; the 4th Respondent ignored the Appellant’s documentary evidence of ownership of the suit property; and held meetings without informing him thus not giving him a fair hearing. 9. At the Trial Court, the Appellant sought a permanent injunction against the 1st, 2nd and 3rd Respondents restraining them from interfering with his rightful ownership of the suit property; an eviction order against the Respondents; a declaration that he was the rightful owner of the suit property; general damages for trespass; directive that the 6th Respondent issues him with a title deed for the suit property; costs of the suit. 10. From the evidence adduced by the Appellant, evidence of the transfer of plot No. 194/Business Olooloitikoshi T. Centre from Riyies Ole Koitee to Lucas Kibegwa Okara on 12th March 2002 was produced. This letter bears handwritten notes dated 10th November 2010 and 11th February 2019 showing that this parcel had a dispute with parcel 70/Business and that a fence had been erected on it, and a pit latrine dug thereon. 11. The Appellant also produced a Search certificate dated 7th February 2019 which showed that parcel 194/Business was registered in his name. He also produced a bundle of receipts of rates and a rates clearance certificate. 12. There is also evidence that the 2nd Respondent was summoned for dispute resolution meetings between 2012 and 2014 but failed to appear. 13. The letter dated 9th May 2017 from the Chief Officer Lands, Physical Planning, Housing and Wildlife addressed to the County Surveyor, indicated that following a site visit led by himself conducted on 11th November 2016, it was resolved that to subdivide the parcels into two equal portions. One portion to be allotted to the Appellant and another portion to Agnes Turere (the 3rd Respondent), and that the area map be amended accordingly to reflect the new position. The Appellant claimed that he was not present during this visit and the said letter did not also indicate whether parties to the dispute were present. 14. The Appellant also produced a Letter dated 9th January 2019 from the Directorate of Criminal Investigation, which confirmed that he was the legal owner of property No. 194 Olooloitikoshi T. Centre. 15. The 1st, 2nd and 3rd Respondent contested the Appellant’s allegation stating that their property was LR No. A38 (formerly 70 Business) and that it was allotted and registered in favour of their late father in 1987. They denied the allegations of trespass on the Appellant’s land. They also denied that they had been summoned to attend any dispute resolution meeting. They also stated that plot 70 was registered in favour of the 3rd Respondent and the same was obtained without fraud or illegality as claimed. 16. They produced the letter of allotment dated 18th June 1987 in favour of Stephen Ole Turere for plot No. 70/Business Olooloitikoshi T. Centre. They also produced assortment of payment receipts for parcel No.70 from the year 1987. The 1st Respondent in a letter dated 19th June 2017 also contested the proposed division of the property into two parcels on grounds that this decision was arrived at without their consent. 17. The 4th and 6th Respondents in their statement of defence stated that plot No. A38 Olooloitikoshi T.Centre was validated by its officers but its ownership had been disputed. They indicated that during the validation exercise, both the Appellant and the 1st Respondent appeared and provided allotment letters for parcels 70 and 194. That it was the Land Registry’s mandate to validate ownership records and any issues arising from the location of validated plots ought to have been addressed by the County Land Surveyor. The Director of the 4th Respondent acknowledged that both the Appellant and the Respondents had valid documents for their respective parcels although the Land Surveyor ought to identify between parcel Numbers194 and 70 which was validated as plot No. A38/Olooloitikoshi T. Centre. 18. The report dated 30th August 2022 addressed to the Chief Magistrate Court, Kajiado from the County Director of Survey confirmed both the Appellant’s and the 1st - 3rd Respondents claim. He stated that in the validation exercise dated 11th February 2019, the plot which was in dispute was allocated plot No. A 38 and several mediation sittings were called to settle the dispute but the same did not bear fruit. He also noted that the old plans were not well visible and proposed that the councillors Mr. Matura and Mr. Monirei who allotted parcels 70 and 194 respectively be called as witnesses to shed light on the allocation. 19. Mr. Jonathan Oseur testified and indicated that “one side of plot No. 194 was being claimed by both parties.” Joshua Lemaikai the County Surveyor stated that there was a validation exercise for plot No. 70 which was now plot A38, but did not see plot No. 194 on the map. He also stated that the map he used was illegible. 20. The learned trial Magistrate identified the issue for determination as whether fraud had been proved, which she found in the negative. Based on the foregoing this court equally finds that the claim of fraud was not proved. This is because it has been confirmed that the letters of allotment held by both parties were duly issued by the Olkejuado County Council. Consequently, the learned trial Magistrate did not err in finding that fraud was not proved. 21. The Learned Trial Magistrate went on to find that the Respondents did not trespass on the suit property because they unintentionally believed it was theirs and the decision to partition the plot into two was an administrative process which should be challenged by way of Judicial review. This was contested by the Appellant as an error by the Learned Trial Magistrate. 22. The Learned Trial Magistrate found that there was a glaring difference in the description of the property captured in the letter dated 21st April 1994 in favour of Riyies which indicated the plot as 194/Business Olooloitilishi T. Centre while the transfer dated 13th march 2022 described it as 194/Business Oloolitikoshi Trading Centre. As such, there was a possibility that the Appellant’s plot was in a different location which could be the genesis of the dispute. The learned Trial Magistrate also held that even if the two properties were on the same location, the first title in time prevailed. 23. This Court’s perusal of the Record of Appeal which has been summarised hereinabove, finds that the dispute revolved around double allocation of parcel 70 and parcel 194 which was confirmed by witnesses from the 4th and 6th Respondents. Indeed where there are two titles or letters of Allotment, the first in time must prevail as held in **Gitwany Investment Limited vs Tajmal Limited & 3 Others [2006] KEHC 2519 (KLR)**. Where the court stated thus; “My understanding is therefore that the title given to Gitwany in the first instance and which I have held to be absolute and indefeasible as regards the suit land is the earlier grant and on the words of the Court of Appeal in ***Wreck Motors Enterprises Vs Commissioner of Lands; Civil Appeal No.71 of 1997*** (unreported) “- is the grant (that) takes priority. The land is alienated already”. This decision was again upheld in ***Faraj Maharus Vs J.B Martin Glass Industries and 3 others Civil appeal No.130 of 2003*** (unreported). Like equity Keeps teaching us, the first in time prevails so that in the event such as this one where by a mistake that is admitted, the commissioner of Lands issues two letters in respect of the same parcel of land, then if both are apparently and in the fact to them issued regularly and procedurally without fraud same for the mistake, then the first in time must prevail. It must prevail because without cancellation of the original title, it retains its sanctity…” I find that learned Trial Magistrate did not err in finding that the first letter of Allotment issued in 1987 should prevail since it was not issued fraudulently or unprocedurally. 1. However, it is on record as testified by Jonathan Oseur, that parcel 70 was on one side of parcel 194. This means that the alleged trespass by the 1st - 3rd Respondents was not on the whole of parcel 194. There was a proposal to subdivide the parcel into two portions which the parties rejected. 2. Therefore, this Court is in agreement with the Learned Trial Magistrate that there is no trespass since the Court has found that the letter of Allotment issued in 1987 prevailed. 3. On the issue that the 1st, 2nd and 3rd Respondents were not proper parties to the suit, this Court finds that this prayer is misconceived because the Appellant sued the Respondents for fraud and trespass on his land and not in their capacity as representatives of the estate of their late father. It therefore means, they had the right and onus to defend the suit. 4. I am satisfied that the Learned Trial Magistrate considered all the evidence and arguments by the parties and applied the relevant law properly before reaching her conclusion. I find no basis to interfere with her determination. 5. Accordingly, the Appeal is found to lack merit and the same is dismissed with no orders as to costs. **Judgment date, signed and delivered virtually at Nakuru this 21st day of May 2026.** **L KOMINGOI** **JUDGE** **In presence of:-** Mr. Muganda for the Appellant Mr Ochieng for the 1st – 3rd Respondents No appearance for the 4th – 6th Respondents Court Assistant: Derick/Irene