https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4920

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELC APPEAL NO. E020 OF 2024** **REV. JACKSON MUEMA...……………………………… 1ST APPELLANT** **REV. HARUN MUTUA........................................................ 2ND APPELLANT** **-VERSUS** **SAMUEL MWALALI MAKASI........................ ………….....RESPONDENT** **(Being an appeal from the judgment of Hon. M. N. Mutua Senior Resident Magistrate delivered on 8th November, 2024 in Makueni MELC No. E029 OF 2022)** **JUDGMENT** 1. The Respondent had sued the Appellants seeking the following reliefs: 2. **A declaration that the Plaintiff is the legal proprietor of all that property within Wote Municipality known as Plot No. C PDP (MKN/78/98/19B).** 3. **An order of permanent injunction restraining the 1st and 2nd Defendants whether by themselves, their agents and servants from trespassing onto, encroaching on, possessing, developing, constructing on, accessing or by any other way howsoever interfering with the Plaintiff’s quiet possession of the parcel of land known as plot No. C PDP (MKN/78/98/19B).** 4. **An order directing the 1st and 2nd Defendants to remove the temporary structure constructed on the Plaintiffs’ property known as plot No. C PDP (MKN/78/98/19B).** 5. **Damages for trespass and interests on damages.** 6. **Cost of this suit.** 7. **Any other relief or order his honourable court deems fit to grant.** 8. The 1st Appellant is the overseer of Deliverance Church International Wote whereas the 2nd Appellant is a pastor with the same church. In a judgment delivered on 8th November, 2024, the trial court found that plot No. C PDP (MKN/78/98/19B) belonged to the Respondent and a declaration was issued to that effect. The court also granted a permanent injunction in addition to general damages of Kshs.50,000/= as well as costs and interest. The Appellants were ordered to remove the structures on the suit property and vacate within 7 days failing which an eviction order was to issue. 9. The Appellants were aggrieved with the judgment and they preferred an appeal to this court in which they raised the following grounds: 10. **That the learned magistrate erred in law and fact in determining the matter in favour of the Respondent and against the weight of evidence.** 11. **That the learned magistrate erred in law and fact in finding that the Respondent is the legal proprietor of all the property within Wote Municipality known as plot No. C PDP (MKN/78/98/19B) whose dimensions and physical location are uncertain.** 12. **That the learned magistrate erred in fact and law in finding that the Appellants actions amounted to trespass to private land.** 13. **That the learned magistrate erred in fact and law in awarding Kshs.50,000 as damages for trespass.** 14. **That the learned magistrate erred in fact and law in issuing orders against the Appellants to vacate the suit land within seven (7) days of this judgment.** 15. **That the learned magistrate erred in fact and law in issuing a permanent injunction restraining the Appellants from remaining on, interfering with or doing any other act which is prejudicial to the Respondent’s quiet enjoyment and occupation of the suit land.** 16. **That the learned magistrate erred in fact and law in failing to take into account the evidence produced by the Appellants.** 17. **That the learned magistrate erred in fact and law when he found that the Respondent was a registered owner of the suit land.** 18. **That the learned magistrate erred in fact and law when he found that the land claimed by the Respondent was the suit land occupied by the Appellants.** 19. **That the learned magistrate erred in fact and law and fact when he found that the Appellants were properly sued.** 20. The appeal was disposed of by way of written submissions. The Appellants filed their submissions dated 18th November, 2025. The Respondent filed his submissions dated 8th May, 2026. 21. The Appellants submitted that the allotment which was granted to the Respondent had lapsed as he did not make the requisite payment within 30 days as required in the letter of allotment and as such, the allotted plot reverted to the County Government of Makueni who reallocated the same to the Appellants pending formalization of the reallocation. 22. The Appellants Submitted that the Respondent did not prove trespass as there was no proof that the plot belonged to him. The Appellant relied on the case of **Torino Enterprises Limited –vs- Attorney General** for the proposal that a letter of allotment is in capable of conferring interest in land being more than an offer, awaiting the fulfillment of conditions stipulated therein. 23. The Appellants further relied on the case of **Peter Wariire Kanyiri –vs-** **Chrispus Washumbe & 2 Others (2022) eKLR** where Justice Kemei held that a letter of allotment which lapsed within 30 days had no legal consequences. 24. The Respondent submitted that the Appellants did not have any allotment. What the Appellants were relying on was a letter from the County Government of Makueni which showed that the Appellants’ church had been allotted a plot measuring half an acre within Wote town without specifying its location. 25. The Respondent further submitted that an allotment has to be accompanied by a duly approved Part Development Plan (PDP) which was not the case with the Appellants’ alleged allocation. 26. The duty of a first Appellate court was well stated in the famous case **Selle and Another** **–vs- Associated Motor Boat Co. Ltd & Others (1968) EA 123** as follows: **“.....An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. 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 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 it has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence of if the impression based on the demeanor of a witness is inconsistent with the evidence in the cases generally”.** 1. I have carefully considered the submissions by the parties herein, the grounds of appeal and the proceedings before the lower court. The issues which emerge for determination are firstly, whether plot No. C.PDP (MKN/78/98B) (suit property) was repossessed from the Respondent and if so, if it was ever allotted to the Appellants’ church. Secondly, whether the Appellants were properly sued. Thirdly, whether the trial magistrate was wrong in granting the reliefs which he granted to the Respondent. 2. There is no contention that the Respondent was allotted the suit property on 1st September, 1998. The suit property was properly described as plot “C” in the attached approved PDP which was approved on 12th August, 1998. The Respondent paid the requisite charges on 11th June, 2002. He thereafter continued to pay the requisite annual rent to the Town Council of Wote which is the predecessor of County Government of Makueni. 3. The evidence which was tendered before the lower court is that the 1st Appellant applied for allocation of a plot within Wote Town for construction of a church. The Government of Makueni County through its letter of 12th January, 2017 indicated that the County Government of Makueni had accepted to give a plot measuring half an acre to the church. This offer was subject to the National Land Commission issuing a letter of allotment in favour of the Deliverance Church of Kenya Makueni Region. 4. There was no evidence adduced before the lower court to show that the suit property was ever re-possessed or that it was ever re-allocated to the Appellants’ church. Despite the County Government of Makueni accepting to give the Appellants a plot measuring half an acre within Wote Town, there is no evidence which was adduced to show that the National Land Commission re-allocated the suit property to the Appellants’ church. 5. The suit property remained the Respondent’s property in the records of the County Government of Makueni. In 2019, there was a verification exercise of all allotments which was undertaken by the County Government in conjunction with the National Land Commission. As per the evidence of PW2 Jackson Ndaudi a Chief Officer of Land and Urban Development at the County Government, the verification exercise was carried out in June, 2019. The Respondent’s allotment was stamped to signify that he was the lawful allottee. This witness stated that the Respondent is the owner of the suit property and has been paying annual rents. 6. When PW2 was cross examined by the Appellants’ counsel, he stated that though there were notices issued in the press warning that those who had not complied with conditions in the allotments would have their plots repossessed, there has never been any repossession of any plot. 7. The Appellants in their evidence stated that they do not have an allotment for the church and that they are waiting for allotment. They also stated that they are not aware if there was any repossession of the plot. It is therefore clear that there was neither repossession nor reallocation of the suit property. 8. The Respondent testified that he got the names of the Appellants from the police station. This is when he was trying to establish who had trespassed into the suit property and put up a church on the same. When he was given the names, he sued them in their individual capacities as trespassers. The Appellants cannot therefore run away from the trespass by claiming that the Respondent should have sued the trustees of Deliverance Church. 9. The 1st Appellant while being cross examined stated that he did not have a certificate of registration of Deliverance Church. This being the case, the Appellants were properly sued as trespassers who had put up a temporary structure on the suit property. 10. The trial magistrate considered the evidence which was placed before him. The evidence showed that the suit property had been allotted to him. When verification exercise was undertaken by the County Government in conjunction with the National Land Commission, the Respondent’s allotment was found to be valid. The Appellants admitted that the County Government had confirmed to them that there was no degazettment notice issued and that they did not have a PDP in support of the Appellants’ claim. 11. The Respondent produced a search which showed that the suit property had been allotted to him. A surveyor was sent to the ground who confirmed that the temporary structure put up by the Appellants had taken up about half of the Respondent’s property which was ¾ of an acre. The Appellants’ own witness that is DW3 stated that there is a difference between being offered a plot and being given an allotment letter. A mere offer which is not accompanied by a letter of allotment is incomplete. The witness went on to state that the Appellants’ church has not been given a letter of allotment and that occupation of land without a PDP is illegal. 12. The Respondent is only waiting processing of a lease. There is no basis upon which the Appellants can claim any portion of the Respondent’s property. The trial magistrate was therefore right in granting all the reliefs which he granted to the Respondent. Consequently, I find no merit in this appeal which is dismissed with costs to the Respondent. **................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 30TH DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Ms. Isika for Appellant. Court assistant - Kilonzo