https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3776

Muiruri v Muchoya & another (Environment and Land Appeal E018 of 2025) [2026] KEELC 3776 (KLR) (Environment and Land) (18 June 2026) (Judgment) Neutral citation: [2026] KEELC 3776 (KLR) Republic of Kenya In the Environment and Land Court at Naivasha Environment and Land Environment and Land Appeal E018 of 2025 MC Oundo, J June 18, 2026 Between Geoffrey Mwangi Muiruri Appellant and Benson Kariuki Muchoya 1st Respondent County Government of Nakuru 2nd Respondent (Being an appeal against the entire judgement of Honourable Magistrate Nathan Shiundu Lutta delivered on 7th August 2025 (sic) in Naivasha CMELC No. 71 of 2018) Judgment 1.Coming up for determination on Appeal is a matter which was heard and determined by Hon. N S Lutta, Chief Magistrate in MCELC No. 71 of 2018 (Formerly Nakuru ELC case no. 237 of 2017) wherein, upon considering the evidence of both parties, vide his Judgement delivered on 27th November, 2024, the Trial Court entered judgement in favour of the Plaintiff and dismissed the 2nd Defendant’s Counterclaim. 2.The 2nd Defendant/Appellant, being dissatisfied with the said Judgement, has now filed the present Appeal based on the following grounds in his Memorandum of Appeal:i.That the learned trial Magistrate erred in both law and fact in allowing the 1st Respondent’s claim despite all the evidence adduced in defence of the claim brought against the in support of the Counter Claim. (sic)ii.That the learned trial Magistrate erred in both law and fact in finding that the Appellant did not, on the balance of probabilities, prove their claim over the suit property, thereby arriving at an erroneous decision.iii.That the learned trial Magistrate misdirected himself in stating that the Appellant did not provide any evidence of his interest in the suit property despite providing numerous pieces of evidence of his ownership, interest, and possession of the suit property.iv.That the learned trial Magistrate erred in both law and fact in failing to adequately consider the evidence tendered by the Appellant, thereby arriving at a decision that was not supported by the weight of the evidence adduced.v.That the learned trial Magistrate erred in both law and fact in failing to conclusively and exhaustively apply the relevant principles and provisions conferring a proprietor their interest in a piece of land.vi.That the learned trial Magistrate erred in both law and fact in failing to equally appreciate the evidence adduced and the testimony of the Appellant at the hearing of the suit, thereby arriving at an erroneous decision.vii.That the learned trial Magistrate erred in both law and fact in failing to consider the overwhelming evidentiary and testamentary evidence adduced by the Appellant.viii.That the learned trial Magistrate erred in both law and fact in choosing to disregard the evidence tendered by the appellants, thereby causing him to reach an erroneous verdict. 3.The Appellant thus prayed for the following orders:i.That the Honourable Court be pleased to allow the appeal by setting aside the judgement and decree of the Honourable Magistrate Nathan Shiundu Lutta in Naivasha CMELC No. 71 of 2018 in its entirety.ii.That the Honourable Court be pleased to allow the prayers as per the Appellant’s Counterclaim as prayed.iii.That the costs of the appeal and the costs of the suit in the trial court be awarded to the Appellant.iv.That the Honourable Court be pleased to grant such further relief as it may deem fit and just to grant. 4.In response, the 1st Respondent vide his Grounds of Objection dated 13th April 2026, opposed the Appeal seeking that the same be dismissed with costs on the following grounds.i.That the Memorandum of Appeal and the entire appeal are frivolous, vexatious, bad in law and devoid of merit.ii.That the appeal is procedurally incompetent and fatally defective for failure to comply with the mandatory provision of the law, in particular failure to seek leave and/or extension of time where required under the Civil Procedure Act and Rules,iii.That the Honourable trial Magistrate properly directed himself on both the law and facts, duly considered all the evidence on record, and arrived at a fair, just and sound judgement.iv.That the appeal is an afterthought, brought in bad faith, and constitutes an abuse of the court process.v.That the appeal offends the principles of finality in litigation and is prejudicial to the Respondents’ right to fair and expeditious determination of the disputes. 5.The 1st Respondent thus prayed that:i.The Appeal be dismissed in its entirety.ii.Costs of the appeal be awarded to the Respondents.iii.Any other relief the Honourable Court may deem fit and just to grant. 6.The 2nd Respondents did not file any response to the Appeal. 7.The Appeal was admitted for hearing on 17th February 2026, and directions were issued that the same be disposed of by way of written submissions, herein summarised. Appellant’s Submissions. 8.In his submissions dated 4th May 2026, the Appellant summarized the factual background of the matter before maintaining that the trial court fundamentally erred both in law and fact, for which the impugned Judgment ought to be set aside in its entirety. He framed his issues for determination as follows:i.Whether the learned trial Magistrate erred in law and fact in finding that the 1st Respondent had proved lawful ownership of the suit property.ii.Whether the learned trial Magistrate erred in failing to properly evaluate and appreciate the evidence tendered by the Appellant.iii.Whether the learned trial Magistrate erred in dismissing the Appellant’s Counterclaim despite the evidence on record.iv.Whether the Appellant is entitled to the reliefs sought in the Memorandum of Appeal. 9.On the first issue for determination as to whether the learned trial Magistrate erred in law and fact in finding that the 1st Respondent had proved lawful ownership of the suit property, he contended that whereas the learned trial Magistrate had held that the 1st Respondent had proved ownership of the suit property merely because he had produced an allotment letter dated 23rd July 2009, there was no proof of acceptance despite alleging that in the year 2012 he had paid fees for acceptance. He argued that the learned Magistrate had failed to appreciate the legal effect and conditional nature of allotment letters under Kenyan law. He argued that an allotment letter was only a contract and/or agreement, citing the following decisions in support.i.Kisengeroni (Suing as the Representatives of Morendat Laramatak Self Help Group) v Academy & 2 others [2023] KEELC 16014 (KLR) in which the court had relied on the case of Dr. Joseph N.K. Arap Ng’ok v Justice Moijo Ole Keiyua & 4 others C.A.60/1997 which had cited the case of Gladys Wanjiru Ngacha v Teresa Chepsaat & 4 others 182/1992 (Nyeri), where the Court of Appeal had emphasized that a letter of allotment per se is nothing but invitation to treat that constituted a contract between the offeror and the offeree but does not confer interest in land and cannot be used to defeat a title of a person who is the registered proprietor of the said parcel of land.ii.Lagat v Kebut (Environment and Land Appeal E021 of 2022) [2023] KEELC 18432 (KLR) (26 June 2023) (Judgment) where the court reaffirmed that an allotment letter is not capable of conferring an interest in land, being nothing more than an offer, awaiting the fulfilment of the conditions stipulated therein by the offeree. 10.That whilst the 1st Respondent’s allotment letter expressly required payment of the requisite fees within the prescribed period, the evidence on record clearly demonstrated a delay of approximately three years after the allotment letter was issued. He contended that the learned trial Magistrate had entirely failed to address the legal consequences of that delay. It is thus evident that the allotment letter was incapable of conferring proprietary rights after the stipulated timelines had lapsed. He placed reliance on the following decisions:i.Bubaki Investment Company Ltd v National Land Commission & 2 others [2015] eKLR, where it was held that the net effect of these provisions is that the offer of allotment had to be accepted within a specified period, otherwise it would lapse by effluxion of time.ii.Mbau Saw Mills Ltd v Attorney General for and on behalf of the Commissioner of Lands) & 2 others [2014] eKLR, where it was emphasized that a letter of allotment does not confer any property rights to a person unless there is acceptance and payment of the stand premium and ground rent. 11.He thus contended that it was evident that the trial court had erred in treating the 1st Respondent’s allotment letter as conclusive proof of ownership, despite clear evidence that the conditions therein had not been complied with within the stipulated time. That further, the Honourable Court should take cognisance that the allotment letter expressly required development of the suit property within twenty-four months, failing which the property would revert to the allocating authority for re-allocation. That, in any event, the 1st Respondent did not adduce any evidence whatsoever demonstrating compliance with the mandatory condition in the form of receipts, photographs, approvals, developments, rate payments, possession evidence, or occupation. 12.He argued that having failed to comply with the terms of allocation, the 1st Respondent had caused the suit property to revert to the allocating authority, for lawful re-allocation to the Appellant in the year 2011. Accordingly, the trial court's finding that the 1st Respondent had proved ownership was against both the evidence and established principles of law. 13.On the second issue, namely whether the learned trial Magistrate had erred in failing to properly evaluate and appreciate the evidence tendered by the Appellant, he submitted in the affirmative, arguing that whereas the impugned Judgment at paragraph 15 stated that the Appellant “did not produce any ownership document or receipt for payment of allotment fees”, that finding was plainly inconsistent with the record because he had produced evidence showing that he had taken possession and occupation of the suit property, and had obtained approvals and permissions from the County Government in relation to developments on the land, and that such documents/evidence could not have been obtained from the 2nd Respondent if proprietary interests had not been conferred upon him. 14.He thus submitted that the learned Magistrate had misdirected himself on the evidence before the court and that, as this is a first appeal, the court is entitled to interfere where the trial court failed to properly evaluate the evidence or arrived at conclusions that were unsupported by the record. To support his position, he relied on the decision in Hipora Security Solutions Limited v Omondi [2026] KEELRC 1111 (KLR), which cited Selle & Another v Associated Motor Boat Co Ltd & Others [1968] EA 123. 15.That apart from the learned Magistrate failing to appreciate the Appellant’s evidence that he had taken possession immediately upon allocation and had remained on the property as admitted by the 1st Respondent, he had also failed to appreciate that the County Government of Nakuru, which was the allocating authority, did not challenge his allotment in 2011, which corroborated his case. The trial court's failure to consider the aforementioned matters had occasioned a grave miscarriage of justice. 16.He then urged that the learned trial Magistrate had erred in dismissing his counterclaim without proper legal analysis, contending that, since he had demonstrated that the 1st Respondent’s allotment had lapsed for non-compliance with the conditions therein, the suit property was therefore available for re-allocation and was allocated to him by the allocating authority. He accepted the allotment, took possession, remained in occupation, and undertook developments after seeking approvals from the County Government. 17.He relied on Section 107 of the Evidence Act to submit that the 1st Respondent had failed to demonstrate compliance with the conditions precedent in his allotment letter and to prove possession of the suit property after allotment or its development. Subsequently, the trial court had improperly shifted the evidentiary burden onto the Appellant while excusing glaring deficiencies in the 1st Respondent’s case. 18.He further relied on Sections 24, 25, and 26 of the Land Registration Act to emphasise that proprietary rights are protected only where they accrue lawfully and in accordance with procedure. Accordingly, an allotment that had lapsed for non-compliance could not continue to confer enforceable proprietary rights, since it is merely an offer awaiting fulfilment of the conditions stipulated therein. In his case, the learned Magistrate erred in law by failing to determine whether the 1st Respondent’s allotment remained valid when the Appellant was allocated the land in 2011. He argued that had the learned Magistrate properly addressed the issue, he would inevitably have found that the Appellant’s allocation was the only valid and subsisting allocation. 19.The fourth issue was whether the Appellant was entitled to the reliefs sought, wherein he contended that, having demonstrated that the learned trial Magistrate had misapprehended both the facts and the law, the instant appeal is meritorious. That the Judgment of the subordinate court was against the weight of evidence and was founded upon an erroneous interpretation of the law governing allotment letters and proprietary interests in unregistered public land. He thus urged the Honourable Court to exercise its appellate jurisdiction and interfere with the impugned Judgment. 20.He maintained that the trial Magistrate had grossly erred in both law and fact in his judgement for which his appeal should be allowed, the trial court’s judgement set aside in its entirety, allow the Appellant’s Counterclaim, and award costs of both the appeal and the subordinate court suit to the Appellant, as prayed for in the Memorandum of Appeal. 1st Respondents' Submissions. 21.The 1st Respondent, in his submissions dated 13th March 2026, was to the effect that the Appellant had not demonstrated any error in law or fact committed by the learned trial Magistrate that would warrant the Honourable Court's interference. 22.He contended that the learned Magistrate had exercised due diligence and properly analysed the pleadings, documentary evidence and testimonies presented in court before arriving at the judgement delivered on 27th November 2024, which correctly found that the Appellant had no legal interest or ownership rights over the suit property, as he had failed to establish any nexus between himself and the ownership of the suit property. That, on the contrary, the 1st Respondent had tendered overwhelming and credible evidence demonstrating how he had lawfully acquired the land, his continuous occupation and development of the same, and his legitimate right to possession and ownership. 23.Further, the 1st Respondent had demonstrated that he had been allocated the suit land, with documentation evidencing such ownership as early as 31st January 2011, and that he had been paying all statutory charges relating to the property, to the exclusion of any other person, including the Appellant. He thus contended that the trial court had correctly concluded that the Appellant’s claim and counterclaim lacked merit and were merely an attempt to unjustly deprive the 1st Respondent of his lawful property. 24.As to whether the Appellant had proved ownership or interest in the suit land, he relied on Sections 107 and 108 of the Evidence Act to submit that the Appellant had failed to produce any credible documentary evidence demonstrating ownership or entitlement to the suit property. To illustrate the foregoing, he relied on the decided case of Kirugi & Another v Kabiya & 3 Others [1987] eKLR, where it was held that the burden of proof was always on the Plaintiff to prove his case on the balance of probabilities, to maintain that the Appellant had failed to discharge that burden. 25.He submitted that the Appellant had failed to file submissions in the lower court despite express directions from the trial court, yet submissions play a crucial role in assisting the court in analyzing the issues in dispute and the applicable law. He relied on the decision in Mwangi Stephen Muriithi v Daniel Toroitich Arap Moi & Another [2014] eKLR. That the Appellant’s failure to file submissions in the lower court demonstrated a lack of seriousness and substance in his claim. 26.On whether the court should interfere with the findings of the trial court, the 1st Respondent argued that the court should be guided by the well-established principle that an appellate court should not interfere with the findings of a trial court unless it is shown that the trial court misapprehended the evidence, applied the wrong principles of law, or arrived at a decision that is plainly wrong. He relied on the case of Peter v Sunday Post Ltd (1958) EA 424, contending that in the present case the Appellant had failed to demonstrate any such error on the part of the learned trial Magistrate. 27.In summary, he submitted that:i.The appeal lacks merit.ii.The trial court properly evaluated the evidence.iii.The Appellant failed to prove any ownership or legal interest in the suit land.iv.The appeal is merely an attempt to challenge a well-reasoned Judgement. 28.He thus prayed that the Appeal be dismissed with costs to the 1st Respondent. Analyses of the evidence. 29.The Court of Appeal in Paramount Bank Limited vs. First National Bank Limited & 2 Others (Civil Appeal 468 of 2018) [2023] KECA 1424 (KLR), where the court held as follows;“A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. A first Appellate Court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. While considering the scope of section 78 of the Civil Procedure Act, a first Appellate Court can appreciate the entire evidence and come to a different conclusion.” 30.The the core dispute is that Benson Kariuki Muchoya, the Plaintiff/1st Respondent herein, instituted a suit against County Government of Nakuru and Geoffrey Mwangi Muiruri as the 1st and 2nd Defendants respectively, in Naivasha MCELC No. 71 of 2018, formerly Nakuru ELC Case No. 437 of 2017 vide a Plaint dated 25th May 2017, wherein he sought the following orders;i.Permanent injunction against the Defendants from interfering with the ownership, use, occupation and/or dealing with land Plot No. Gilgil Leleshwa/286 Residential Property.ii.The honourable court will declare the subject land is owned by the Plaintiff and subsequent (sic) eviction or restriction against the Defendants.iii.Costs of suit be provided. 31.Subsequent to the filing of the suit, the 1st Defendant filed its Statement of Defence on 2nd August 2014, denying the contents of the Plaint, putting the Plaintiff to strict proof and praying for the striking out or dismissal of the Plaintiff’s suit with costs. 32.The 2nd Defendant, on the other hand, filed his Statement of Defence and Counterclaim dated 21st July 2017, denying the contents of the Plaint and putting the Plaintiff to strict proof. He vehemently denied that the Plaintiff is the owner of the parcel of land known as Residential Plot No. 286 at Gilgil-Leleshwa and argued that the Plaintiff’s perceived allocation of the suit land is replete with irregularities and, hence, is voidable. He contended that he had been and remains in possession of the suit land, legally and with the consent of the 1st Defendant, who is the principal owner thereof. 33.He stated that he had been allocated the suit land by the 1st Defendant vide official communication dated 31st January 2011, and almost immediately thereafter took possession of the same in the same year and commenced development activities thereon and extensively improved the same, wherein he had remained in possession to date. That, if at all, the Plaintiff was the purported owner of the suit land, the same is of no great significance, as it was secured irregularly and without regard to the Defendants’ lawful rights and interests in the suit land. 34.He asserted that he has an indefeasible proprietary right and interest in the suit land, which was further buttressed by his lengthy, continuous and uninterrupted possession thereof as well as his continuous compliance with the conditions of ownership, including the payment of rates to the 1st Defendant. 35.In his Counterclaim, he argued that the County Council of Nakuru (defunct), the County Government of Nakuru, and the 2nd Defendant in the Counterclaim remain the headless lessor of the suit land. That in or around the year 2011, he, as the Plaintiff in the counterclaim, was allocated rights and interests in the suit land by the 2nd Defendant in the counterclaim, wherein he took exclusive possession of the same and continues in said possession to date. That, accordingly, he had built his life on and eked out a living from the suit land, in addition to the same being of financial significance and sentimental value, as it was where he was housing his family. 36.He thus prayed for judgement against the Defendants for the following orders.i.A declaration that the Plaintiff is the lawful proprietor of the lease in respect of Residential Plot No. 286 at Gilgil-Leleshwa and an order that a Certificate of Lease be issued in the name of the Plaintiff.ii.An order of permanent injunction restraining the Defendants, by themselves, their agents, servants and/or assigns or any person acting on their behalf or instructions, from entering, remaining, developing, charging, selling, transferring or in any other manner whatsoever dealing with the suit land.iii.Costs and interest of the suit. 37.In response to the 2nd Defendant’s Counterclaim, the 1st Defendant filed a Notice of Preliminary Objection dated 13th April 2022 seeking to have the 2nd Defendant’s Counterclaim excluded with costs on the following grounds:i.The 2nd Defendant’s Counterclaim is incurably defective and ought to be excluded as it offends the provisions of Order 7 Rule 3 and 8 of the Civil Procedure Rules.ii.A Counterclaim is a cross suit that can only be filed against the Plaintiff and not a co-defendant; therefore, the claim raised by the 2nd Defendant against the 1st Defendant ought to be disposed of by way of an independent suit and not a counterclaim. 38.Subsequently, the case had proceeded for hearing wherein Benson Kariuki Muchoya, the Plaintiff herein, who while testifying as PW1, adopted his witness statement as his evidence in chief and adduced his filed documents in evidence as follows:i.Demand Letter dated 5th April 2017 as Pf Exh. 1ii.Letter of Allotment from the County Government of Nakuru and Receipt of payment made on 4th April 2012 as Pf Exhs. 2 (a) and 2 (b) respectively.iii.Photographs as Pf Exh. 3 39.He prayed for orders as had been sought in the Plaint. 40.Under cross-examination by the counsel for the 1st Defendant, the witness stated that he was allotted the land in the year 2009 and that, per the Allotment Letter, he was to pay for the allotment within 30 days. He confirmed that the default clause stated that failure to pay within the timeline would nullify the offer. Apart from the receipt of payment dated 4th April 2012, which he had produced as Pf Exh. 2(b), he had produced no other receipts. He insisted that the 2nd Defendant had occupied his land, despite not having seen his documents, and that he had not been accompanied by anyone from the county government. 41.When he was cross-examined by the counsel for the 2nd Defendant, he testified that whereas he had read the allotment letter and understood the contents, he had made the first payment on 4th April 2012, which was three years after he had received the letter of allotment. He argued that his money had been accepted and that a receipt had been issued. 42.In re-examination, he contended that the 1st Defendant never issued him a demand letter, nor was he issued a notice of any penalty. He maintained that he had made a payment wherein the 1st Defendant had issued him a receipt. He confirmed that the 2nd Defendant was currently occupying his land. The Plaintiff had thus closed his case. 43.The Defence case had proceeded with the testimony of Geoffrey Mwangi, the 2nd Defendant herein, a farmer living in Gilgil, who, while testifying as DW1, had adopted his witness statement as evidence in chief and adduced his filed documents in evidence as follows:i.County Government Planning Letter dated 17th October 2018 as Df Exh. 1.ii.R.I.M Map as Df Exh. 2.iii.Building Approval Plans issued on 18th October 2018 as Df Exh. 3.iv.Bundle of Photographs as Df Exh. 4 44.Under cross-examination by the counsel for the Plaintiff, he first confirmed that he had filed a defence before proceeding to testify that the County Council of Nakuru had allocated him the suit land on 31st January 2011. Not being aware that someone else had been allocated the suit land, he had started working on it. He further stated that, whilst he had not constructed on the land, no one else had been working on the suit land. He confirmed that he had been paying all the rates as per the documents he had filed. He also confirmed that he had filed a counterclaim before asserting that the suit land was his. 45.On cross-examination by the Counsel for the 1st Defendant, he contended that the suit land had been allocated to him by the County Government and that he had an allotment letter. On further probe, he admitted that, although he had produced a building approval plan and his development application, he had not produced the receipts for payment of rates. 46.Under re-examination, he maintained that it was the County Government that had given him land on 31st January 2011 and issued him with the Allotment Letter. He confirmed that he was residing on the suit land and that he had filed a Counterclaim. 47.There was no evidence adduced by the 1st Defendant.The Defence then closed its case. Determination. 48.I have considered the record of appeal, the evidence in the trial court, the holding of the trial Magistrate, the written submissions of learned Counsel, the authorities cited and the applicable law. Conscious of my duty as the first Appellate Court in this matter, as it is trite of me, the summary of the parties’ case is as follows: 49.The Plaintiff instituted the suit (originally Nakuru ELC Case No. 437 of 2017, later Naivasha MCELC No. 71 of 2018) claiming ownership of Residential Plot No. Gilgil Leleshwa/286 (the suit land), wherein he testified that he was allotted the land by the local government in 2009. He submitted as exhibits,i.Pf Exh. 1, a Demand Letter dated 5th April 2017.ii.Pf Exhs. 2(a) & 2(b), a Letter of Allotment from the County Government of Nakuru and a payment receipt dated 4th April 2012.iii.Pf Exh. 3, photographs (3) depicting a farm with vegetation, temporary mabati structures and an unfinished permanent structure. 50.The Plaintiff admitted that under the 2009 allotment letter, despite the fact that he was required to pay within 30 days, failure to do so, which would nullify the offer, he had made his first and only recorded payment on 4th April 2012, which was three years late. He argued that the County Government accepted his late payment and issued a receipt without ever sending him a penalty notice or a demand letter. He also acknowledged that he had not visited the land with county officials and confirmed that the 2nd Defendant was currently occupying the land. 51.Although the 2nd Defendant filed their statement of Defence, they adduced no evidence, but the 1st Defendant's defence and counterclaim had been that the Plaintiff's allotment was irregular and voidable. He asserted that he has an indefeasible right to the land due to lawful allocation and lengthy, continuous possession, on which he houses his family. 52.In his counterclaim, he requested the court to declare him the lawful proprietor of the lease for Plot No. 286, order a Certificate of Lease to be issued in his name, and grant a permanent injunction against the other parties, the defunct County Council of Nakuru, having allocated him the land on 31st January 2011, which he took immediate possession. He submitted as exhibits;i.Df Exh. 1 the County Government Planning Letter dated 17th October 2018.ii.Df Exh. 2 a Registry Index Map (R.I.M).iii.Df Exh. 3, the Building Approval Plans dated 17th October 2019 and May 2020.iv.Df Exh. 4, photographs (3) depicting a farm with vegetation, temporary mabati structures and an unfinished permanent structure. 53.Although he claimed to have extensively improved the land and lives there, during cross-examination, he admitted that he had not actually constructed buildings on the land, but maintained that he occupied the same. He also claimed to possess an allotment letter and to have paid all land rates, but failed to produce the actual allotment letter or receipts for the rates into evidence, presenting only building approvals and planning maps. 54.Based on the pleadings, testimonies, and evidence presented by the parties, I find the issues for determination as being:i.Whether the Appeal is competent before the Courtii.Whether the 1st Respondent/Plaintiff holds a valid and legal allocation of the suit land being Plot No. Gilgil Leleshwa/286.iii.Whether the Appellant/2nd Defendant was legally allocated the suit land by the 1st Defendant on 31st January 2011.iv.Whether the Appellant/2nd Defendant’s Counterclaim against the 1st Defendant (County Government) is competent and sustainable in law.v.What is the effect of an allotment letter? 55.On the first issue for determination, whether the Appeal is competent before the Court, the law governing the filing of appeals from the subordinate court to the High Court (read Environment and Land Court) is found in Section 79G of the Civil Procedure Act, which provides that:“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.” 56.In this matter, Judgement was delivered on 27th November, 2024. The appellant, vide an application dated 7th March 2025 in the trial Court, sought an extension of time to file his Appeal out of time. In a ruling dated 23rd August 2025, he was granted a 30-day extension. The memorandum of Appeal was filed in this court on 12th February 2026, well past the time allowed to file an appeal. The Appeal was not filed within the time stipulated under Section 79G of the Civil Procedure Act, nor did it comply with the court's specific orders dated 23rd August 2025. The Appellant ought to have sought leave first to file the appeal out of time before filing his Appeal. 57.In Nicholas Kiptoo Korir Arap Salat v IEBC & 7 others [2014] eKLR, the Supreme Court had observed as follows:“By filing an appeal out of time before seeking extension of time, and subsequently seeking the court to extend time and recognize such ‘an appeal’, is tantamount to moving the court to remedy an illegality. This, the court cannot do.To file an appeal out of time and seek the court to extend time is presumptive and inappropriate. No appeal can be filed out of time without leave of the court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this court will not accept a document filed out of time without leave of the court. It is unfortunate that Petition No. 10 of 2014 has been accorded a reference number in this court’s Registry. This is irregular as that document is unknown in law and the same should be struck out. Where one intends to file an appeal out of time and seeks extension of time, the much he can do is to annex the draft intended petition of appeal for the court’s perusal when making his application for extension of time; and not to file an appeal and seek to legalize it. Petition No. 10 of 2014 having been filed out of time and without leave (an order of this court extending time), is expunged from the court’s Record.” 58.For this appeal to be legally sustained, the Appellant ought to have filed a fresh application under Section 79G seeking a second extension of time to regularize the February 2026 filing, providing good and sufficient cause to explain the massive 143-day delay. No such application was filed and granted. 59.It is a well-settled principle of law that time limits set by statutes or specific court orders are not mere technicalities; they go to the core of the court's jurisdiction to hear an appeal. When the Appellant allowed the 30-day extended window to lapse without filing the appeal or seeking a further extension, the order of 23rd August 2025 spent its force. The appeal filed on 12th February 2026 is, therefore, statutorily time-barred, incompetent, and dead-on arrival. While this procedural defect is sufficient to strike out the entire Appeal with costs, the Court deems it prudent to briefly address the substantive merits of the case to offer the parties complete closure, in case I am wrong. 60.On the second issue as to whether the 1st Respondent/Plaintiff holds a valid and legal allocation of the suit land being Plot No. Gilgil Leleshwa/286, based on the evidence herein adduced, the 1st Respondent was issued an allotment letter to the suit land on 23rd July 2009, which contained a strict default clause requiring payment of Ksh 10,500/= within 30 days, failing which the offer would automatically stand nullified. The 1st Respondent paid Ksh 11,100/= including Ground Rent, on the 4th April 2012, which was three years later. 61.It is trite that the failure to comply with the terms of an allotment letter within the stipulated period meant that the offer lapsed automatically and therefore the land legally reverted back to the unallocated pool of the defunct County Council of Nakuru. 62.The Appellant’s evidence was that the same land was allocated to him on 31st January 2011. The local authority, therefore, had lost the legal capacity to revive a dead letter of allotment by simply accepting the 1st Respondent’s late payments, where no official, formal extension of time had been granted before the lapse. The County Council was therefore legally entitled to reallocate the suit land after the 1st Respondent’s 2009 offer had expired. 63.However, the unique circumstance here is that the 2nd Respondent (County Government) accepted the 1st Respondent’s late payment in 2012, issued an official receipt (Pf Exh. 2b), and never issued a notice of revocation. By accepting the consideration, the County Government effectively waived the default clause and regularized the 1st Respondent's equitable interest, dating his priority in time back to 2009. 64.On the third issue for determination as to whether the Appellant/2nd Defendant was legally allocated the suit land by the 1st Defendant, the Appellants evidence had been that he had been issued with an allotment letter dated 31st January 2011, for the suit land. However, he failed to tender this letter as an exhibit in court, producing only secondary or consequential documents being a planning letter, an R.I.M. map, building plans, and photographs. 65.Under Section 106 of the Evidence Act (Cap 80) of Kenya, the burden of proof lies on the person who wishes the court to believe in the existence of any fact. Furthermore, the best evidence rule requires that, to prove the contents of a document, in this case, an allocation of land, the ‘’mother’’ document itself ought to have been produced. By failing to produce the allotment letter, the Appellant herein failed to prove that an official, lawful offer was ever made to him by the County Council. The court cannot, therefore, presume the contents or validity of an unproduced document. 66.The Appellant claimed to have complied with all conditions of ownership, including paying rates to the 1st Defendant, yet he did not produce any receipts for the payment of rates or allocation fees. An allocation of public or local authority land is a contractual process. Even if an allotment letter existed, it would require payment of plot fees within a specified period to materialize into a legal interest. Without receipts, the court has no proof that he ever perfected the allocation. 67.In his pleadings and Counterclaim, although the Appellant claimed that he had commenced extensive development activities on the suit land and had extensively improved the same where he was housing his family, yet I have looked at the photographs herein produced in evidence, and the same speak to the contrary. Indeed, under cross-examination, he admitted that he had not constructed on the land. This material contradiction compromised his credibility and weakened any equitable claim to the land based on substantial structural development. 68.Although the Appellant possesses official secondary government documents, including a County Government Planning Letter of 17th October 2018 and approved Building Plans, hence demonstrating that the County Government, at some point, recognized him as the person utilising the plot, and he remains in physical possession of the land, yet on a balance of probabilities, the court cannot find that he was legally allocated the suit land on 31st January 2011. 69.On the fourth issue as to whether the Appellant’s Counterclaim against the 1st Defendant (County Government) was competent and sustainable in law, Order 7 Rule 3 of the Civil Procedure Rules provides as follows;“A defendant in a suit may set-off, or set-up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and whether it is for a liquidated or unliquidated amount, and such set-off or counterclaim shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit, both on the original and on the cross-claim; but the Court may on the application of the plaintiff before trial, if in the opinion of the court such set-off or counterclaim cannot be conveniently disposed of in the pending suit, or ought not to be allowed, refuse permission to defendant to avail himself thereof.’’ 70.Order 7 Rule 8 of the Civil Procedure Rules also provides as follows;“Where a defendant by his defence sets up any counterclaim which raises questions between himself and the plaintiff, together with any other person or persons, he shall add to the title of his defence a further title similar to the title in a plaint, setting forth the names of all persons who, if such counterclaim were to be enforced by cross-action, would be defendants to such cross-action, and shall deliver to the court his defence for service on such of them as are parties to the action together with his defence for service on the plaintiff within the period within which he is required to file his defence.’’ 71.A counterclaim is structurally a cross-suit, a separate, independent claim brought by a Defendant against a Plaintiff within the same suit, allowing the court to settle all disputes between those primary opposing parties at once. As seen from the above captioned provision of the law, whereas Order 7, Rule 3 dictates how a Defendant sets up a counterclaim against a plaintiff, Order 7, Rule 8 specifically addresses claims against additional persons who are not already parties to the suit. 72.In this case, the 2nd Defendant filed a Counterclaim seeking the court to compel his Co-Defendant, the County Government, to issue a Certificate of Lease in his name. It is trite that a Defendant cannot maintain a Counterclaim against a co-defendant but must always target the Plaintiff, either solely or jointly with a third party. If the 2nd Defendant believed he had a lawful claim against his co-Defendant (the County Government), the proper procedural mechanism was to institute Third-Party Proceedings. 73.Alternatively, as the 1st Defendant rightly argued in its Preliminary Objection, the 2nd Defendant should have filed an independent suit against the County Government or raised a proper cross-claim under the specific provisions meant for co-Defendants, rather than wrapping it in a standard Counterclaim format. His counterclaim against the co-defendant was therefore technically incurably defective and is hereby struck out. 74.In the end, balancing two competing legal principles is the strict contractual adherence versus the doctrine of waiver/estoppel. While the Plaintiff/1st Respondent breached the 30-day rule, the 2nd Defendant (the County Government) accepted his money anyway in 2012 and issued an official receipt. By accepting the late payment and not formally cancelling the allotment or reallocating the land prior to that payment, the County Government legally waived its right to enforce the strict 30-day default clause. 75.A party to a contract cannot condone a breach (by taking the money), give an official receipt, and then later turn around in court and argue that the contract was dead. The government was estopped from denying the validity of the receipt it had issued. 76.If the County Government allocated the exact same piece of land to the Appellant in 2011 while the Plaintiff’s 2009 allocation was dormant, the government was technically within its rights because the Plaintiff had defaulted. However, the Appellant failed to prove this because he failed to produce his 2011 allotment letter or any payment records in court. The court cannot legally verify that a valid, competing allocation ever existed in 2011. Therefore, as far as the evidence is concerned, the only validly documented allocation transaction that was ever completed was the Plaintiff's payment in 2012. The Appellant's inability to produce his own allocation documents left the trial court with no choice but to uphold the Plaintiff's imperfect, but documented, claim. Ultimately, I find as follows;i.The Appeal is hereby dismissed for being statutorily time-barred, incompetent, and lacking in merit.ii.The Judgment and Decree of the Subordinate Court in Naivasha MCELC Case No. 71 of 2018 is hereby affirmed in its entirety.iii.The Appellant shall bear the costs of this Appeal and of the trial court. DATED AND DELIVERED VIA MICROSOFT TEAMS AT NAIVASHA THIS 18TH DAY OF JUNE 2026.M.C. OUNDOENVIRONMENT & LAND COURT – JUDGE