https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3075

Odero & 2 others v Nyunja & 4 others (Environment and Land Appeal E022 & E032 of 2023 (Consolidated)) [2026] KEELC 3075 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEELC 3075 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Appeal E022 & E032 of 2023 (Consolidated) SO Okong'o, J May 21, 2026 Between Barrack Omondi Odero 1st Appellant Isabella Achieng Olwenyo 2nd Appellant and Mary Obondo Nyunja 1st Respondent Nelson Odhiambo Ochungo 2nd Respondent The County Government Of Kisumu 3rd Respondent As consolidated with Environment and Land Appeal E032 of 2023 Between Nelson Odhiambo Ochungo Appellant and Mary Obondo Nyunja 1st Respondent Barrack Omondi Odero 2nd Respondent Isabella Achieng Olwenyo 3rd Respondent The County Government Of Kisumu 4th Respondent (Being appeals from the Judgment and Decree of the Hon. K. Cheruiyot SPM delivered on 26th May 2023 in Kisumu CMCELC NO.68 of 2020, Barrack Omondi Odero & Another v. Mary Obondo Nyunja & 2 Others) Judgment 1.The dispute in the consolidated appeals concerns all that parcel of land known as Plot No. 80, Phase 2, Migosi Estate, Kisumu Municipality (“the suit property”). The Appellants in the consolidated appeals are challenging the judgment and decree of Hon. K. Cheruiyot, SPM, made on 26th May 2023 in Kisumu CMCC ELC NO. 68 of 2020 (“the lower court suit”). The Appellants in ELCA No. E022 of 2023(“the first appeal”) sued the Respondents in that appeal in the lower court through a plaint dated 17th August 2020, which was later amended on 22nd February 2021. The Appellants in the first appeal averred that they were the registered owners of the suit property. 2.The Appellants in the first appeal averred that sometime in December 2016, they bought the suit property from the 2nd Respondent in that appeal, who is the Appellant in ELCA No. E032 of 2023 (“the second appeal) at a consideration of Kshs. 1,440,000/-. The Appellants in the first appeal averred that when they purchased the suit property from the Appellant in the second appeal, he was the registered owner of the property. The Appellants in the first appeal averred that after purchasing the suit property, they took possession thereof, got the property transferred into their names and had since then been paying rates and all taxes due on the property to the County Government of Kisumu (“the County Government”), the last Respondent in both appeals. 3.The Appellants in the first appeal averred that on 10th August 2020, the 1st Respondent in both appeals trespassed onto the suit property, destroyed the temporary structure they had constructed thereon together with the water system and electricity they had installed, chased away the Appellants’ caretaker and commenced construction on the property, which action was unlawful, illegal and irregular. The Appellants in the first appeal prayed for judgment against the Respondents in the first appeal jointly and severally for;a.A declaration that the Appellants in the first appeal were the bona fide owners of the suit property.b.An order of permanent injunction restraining the 1st Respondent in both appeals by herself, or through her agents, representatives, servants and or any other person authorised by her from trespassing on, encroaching, building or carrying out construction on the suit property or interfering with the property in any other way.c.General damages for trespass and destruction of property.d.In the alternative, an order for a refund of the purchase price of Kshs. 1,440,000/-.e.Penalty of 20% of the purchase price of Kshs. 1,440,000/-.f.Interest on (d) and (e) above at court rates from 2nd December 2016 until payment in full.g.Costs of the suit. 4.The 1st Respondent in both appeals filed her statement of defence on 24th August 2020, which she later amended on 19th March 2021. The 1st Respondent denied that the Appellants were the registered owners of the suit property. The 1st Respondent denied that the 2nd Respondent, the Appellant in the second appeal, had been the registered owner of the suit property and had the capacity to sell the same to the Appellants in the first appeal. 5.The 1st Respondent in both appeals averred that she bought the suit property from one Edwin Ouko Otieno, who had acquired it from the 1st Allottee, Francis M. Nyamogo, in 1995. The 1st Respondent in both appeals averred that Edwin Ouko Otieno was in possession of the suit property until May 2020, when he sold it to the 1st Respondent. The 1st Respondent in both appeals averred that there could not be two allotments over the same parcel of land and that, in law, the first allotment takes precedence. The 1st Respondent in both appeals averred that the purported allotment of the suit property to the Appellants in the first appeal on 19th November 2020 was a nullity. The 1st Respondent averred that the allocation of the suit property to the Appellant in the second appeal by the County Government, who sold the same to the Appellants in the first appeal, had been cancelled by the National Land Commission in its determination published in the Kenya Gazette Vol. CXIX- No. 97 dated 17th July 2017. 6.The 1st Respondent in both appeals averred that the County Government had no legal capacity to allot land already allocated by the Commissioner of Lands for private use. The 1st Respondent in both appeals averred that the purported allotment of the suit property to the Appellant in the second appeal and the Appellants in the first appeal breached the existing land laws and the Constitution of Kenya. The 1st Respondent in both appeals averred that the Appellants in the first appeal and the second appeal had never had possession or control of the suit property. The 1st Respondent in both appeals averred that the said Appellants’ recourse was to seek a refund from the County Government. The 1st Respondent prayed that the suit be dismissed with costs. 7.The 2nd Respondent in the first appeal, who is the Appellant in the second appeal, filed his statement of defence on 27th April 2021. The 2nd Respondent in the first appeal admitted that the Appellants in that appeal were the registered owners of the suit property, having purchased it from him. The 2nd Respondent in the first appeal averred that he was wrongly sued as there was no cause of action against him. The 2nd Respondent in the first appeal prayed that the suit be dismissed with costs. The 3rd Respondent in the first appeal, which is the 4th Respondent in the second appeal, neither entered an appearance nor filed a defence. 8.The lower court heard the parties and their witnesses and delivered a judgment on 26th May 2023. The lower court found that the Appellants in the first appeal had not proved that they were the lawful owners of the suit property and that the 1st Respondent in both appeals had trespassed on the same. The lower court found that the 1st Respondent in both appeals was the lawful owner of the suit property. The lower court found that since the allotment on 22nd March 1996 of the suit property to Edwin Ouko, from whom the 1st Respondent in both appeals acquired the property, which was the first in time, had never been cancelled, the suit property was not available for reallocation to the 2nd Respondent in the first appeal/Appellant in the second appeal, by the County Government’s predecessor, the Municipal Council of Kisumu on 19th November 2010. The lower court further found that the determination by the National Land Commission, published in the Kenya Gazette on 17th July 2017 as Notice No. 6863, confirmed that the Municipal Council of Kisumu's allocation of the suit property to the 2nd Respondent was illegal and null and void. 9.The lower court held that the Appellants in the first appeal were not entitled to the orders sought. The Court dismissed the Appellants in the first appeal’s suit with costs to the 1st Respondent in the appeal to be paid by the said Appellants and the 2nd Respondent in the appeal. ELCA No. E022 of 2023 (The first appeal) 10.The Appellants in this appeal, Barrack Omondi Odero and Isabella Achieng Olwenyo, were aggrieved by the decision of the lower court and preferred the appeal against Mary Obondo Nyunja, Nelson Odhiambo Ochungo and the County Government of Kisumu (“the Respondents in the first appeal”). In their Memorandum of Appeal dated 12th October 2023, the Appellants in this appeal challenged the lower court’s judgment on the following grounds: 1.That the learned trial magistrate erred in law and fact by failing to make an order for the refund of the purchase price paid by the appellants, penalties and interest as against the 2nd Respondent as pleaded in the amended plaint dated 18th February 2021. 2.That the learned trial magistrate erred in law and fact by making an order that the costs of the suit be borne by the Appellants. 3.That the learned trial magistrate erred in law and fact by making an order that there shall be no order on costs against the 2nd Respondent. 4.The learned trial magistrate erred in his analysis and appreciation of the law and fact, thereby arriving at a wrong decision. 5.The learned trial magistrate erred in law and fact by failing to read and analyse the evidence and submissions by the Appellants, thereby arriving at a wrong decision. 6.The learned trial magistrate erred in law and fact by failing to properly analyse and appreciate all the issues that were before the court as per the pleadings, thereby arriving at a wrong decision. 11.The Appellants prayed that the appeal be allowed with costs and that the trial court judgment delivered on 26th May 2023 be set aside and substituted with an order allowing the Appellants' alternative prayers in the amended plaint for a refund of the purchase price, penalties, interest, and costs in the lower court suit, with costs. ELCA No. E032 of 2023(The second appeal) 12.The Appellant in this appeal, Nelson Odhiambo Ochungo (“the 2nd Respondent in the first appeal/Appellant in the second appeal”), was aggrieved by the decision of the lower court and preferred this appeal against Mary Obondo Nyunja, Barrack Omondi Odero and Isabella Achieng Olwenyo, and the County Government of Kisumu (“the Respondents in the second appeal”). In his Memorandum of Appeal dated 7th November 2023, the Appellant in this appeal challenged the lower court’s judgment on the following grounds;1.That the learned trial Magistrate erred in law and in fact by failing to appreciate that the Plot No. 80, phase 2, Migosi Estate, sold by him to the Appellants in the first appeal, was a different and independent plot from Plot No. 1-137(80) in the name of the 1st Respondent in both appeals.2.That the learned trial magistrate erred in law and in fact by failing to appreciate the documentary evidence on record tendered by the Appellant in this appeal to the effect that the 1st Respondent in both appeals and the Appellants in the first appeal had and owned their respective plots in respect to which they were paying statutory land rates to the County Government.3.That the learned trial magistrate erred in law and in fact by failing to appreciate that the transaction that took place between the Appellant in this appeal and the Appellants in the second appeal concerning Plot No. 80 Phase 2, Migosi Estate, was valid as the Appellant in this appeal had a good title to transfer to the Appellants in the first appeal.4.That the learned trial Magistrate erred in law by making a finding that the 1st Respondent in both appeals was entitled to costs payable by the Appellant in this appeal, whereas the Appellant herein was a defendant just like the 1st Respondent in both appeals. 13.The Appellant in the second appeal prayed that the appeal be allowed with costs, and that the judgment of the lower court be set aside and substituted with one dismissing the Appellants in the first appeal’s claim against the Appellant in the second appeal. 14.The consolidated appeals were heard by way of written submissions. The Appellants in the first appeal/2nd and 3rd Respondents in the second appeal, and the Appellant in the second appeal/the 2nd Respondent in the first appeal filed submissions as directed by the court. The 1st Respondent in both appeals did not file submissions. Appellant’s Submissions 15.The Appellants in the first appeal filed submissions dated 16th June 2025, in which they framed three issues for determination, namely: whether the trial magistrate erred in failing to make an order for the refund of the purchase price paid by the Appellants to the 2nd Respondent in the first appeal, whether the Appellants are entitled to a penalty for breach of contract, and whether the trial magistrate erred in making an order that the Appellants bear the costs of the suit. 16.The Appellants in the first appeal submitted that the lower court rightly found that they bought the suit property from the 2nd Respondent in the appeal, a fact the 2nd Respondent did not deny. The Appellants in the second appeal submitted that they were entitled to a refund of the money they had paid, together with the penalty, as provided in the sale agreement between them and the 2nd Respondent in the appeal. The Appellants in the first appeal submitted that failure to order the 2nd Respondent in the appeal to refund the money paid to him as the purchase price for the suit property, together with the agreed penalty, would lead to unjust enrichment. The Appellants in the first appeal further submitted that they were entitled to interest on the amount to be refunded. In support of these submissions, the Appellants in the first appeal cited Mutiso v. Kaati (Environment and Land Appeal No.E036 of 2022) (2023) KEELC 22439 (KLR) (18 December 2023) (Judgment), and Simon Erot Ajeko & Another v. Robert Okello & Another (2018) e KLR. 17.On the issue of whether they were entitled to claim the penalty for breach of contract, the Appellants in the first appeal submitted that the refund was subject to payment of a 20% penalty, as provided in clause 9 of the sale agreement dated 23rd December 2016 between the parties. The Appellants in the first appeal submitted that, having failed to give possession of the land sold to them, the 2nd Respondent in the appeal breached the sale agreement and was therefore liable to pay a penalty. In support of this submission, the Appellants in the first appeal cited, Mbijiwe v. Muthuri (Environment and Land Appeal E088 of 2022) (20230 KEELC 21515 (KLR) (8 November 2023) (Judgment) and Charles Gichana Angwenyi v. Josephat Mwangi Moracha (2016) e KLR. The Appellants in the appeal submitted that they were entitled to Kshs. 288,000/- being 20% of Kshs. 1,400,000/- as a penalty. 18.On the issue of costs, the Appellants in the first appeal submitted that, although costs follow the event as a general rule, in the case before the lower court, the court should have departed from the rule and excused the Appellants from bearing the costs of the suit. The Appellants in the first appeal submitted that they purchased the suit property innocently from the 2nd Respondent in reliance on documents issued by the County Government to the 2nd Respondent, which showed that the 2nd Respondent was the owner of the property. The Appellants submitted that the order on costs against them should be set aside. The Appellants in the first appeal urged the court to allow the appeal, set aside the lower court judgment and substitute it with an order allowing the Appellants in the first appeal’s alternative prayer in the amended plaint. 19.The Appellant in the second appeal/2nd Respondent in the first appeal’s submissions 20.The 2nd Respondent in the first appeal, who is also the Appellant in the second appeal (hereinafter referred to only as “the Appellant in the second appeal” for ease of reference), filed submissions dated 21st July 2025. The Appellant in the second appeal submitted that from the evidence that was adduced before the lower court, Plot No. 80 Migosi phase II and Plot No. 137 (80) Ksm Migosi S.S.S. PH2 were distinct and separate from each other. The Appellant in the second appeal submitted that this fact was confirmed by the letters of allotment of the two properties and other documents and correspondence that were produced in evidence before the lower court. The Appellant in the second appeal submitted that the lower court failed to appreciate that the reallocation of the suit property by the County Government was carried out through advertisement in the local newspapers. The Appellant in the second appeal submitted that together with other members of the public, he applied to be allocated the parcels of land that were advertised for allocation by the County Government and upon payment of the requisite charges, he was allocated the suit property. The Appellant in the second appeal submitted that if the allocation of the suit property to him by the County Government was illegal, as found by the lower court, then all the payments made to the County Government by both the Appellant in the second suit and the Appellants in the first suit should also have been found to be illegal. 21.The Appellant in the second appeal submitted that the lower court failed to appreciate that the acts of the County Government in the whole transaction were what brought about the lower court suit, and therefore the County Government should have been held responsible and called upon to pay the costs of the suit. Analysis and Determination 22.I have considered the pleadings and proceedings of the lower court, the judgment of the court, the grounds of appeal by the Appellants, and the submissions by the parties. This being a first appeal, this court has to reconsider and re-evaluate the evidence on record and draw its conclusions on the issues that were raised for determination before the lower court. 23.In Kenya Ports Authority v. Kuston (Kenya) Limited [2009] 2EA 212 the Court of Appeal stated that:“On a first appeal from the High Court, the Court of Appeal should 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. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 24.In Makube v. Nyamuro[1983] KLR 403, it was held that the appellate court will not interfere with the findings of fact by the trial court unless they were not based on evidence at all, or they were based on a misapprehension of the evidence, or where it is demonstrated that the court acted on wrong principles in reaching its conclusion. See also, Peter v. Sunday Post Ltd. [1958] EA 424. 25.I am of the view that the following are the issues arising for determination in the consolidated appeals:1.Whether the Appellants in the first appeal proved their case against the Respondents in that appeal and were entitled to the reliefs sought in their amended plaint in the lower court?2.Whether the lower court erred in failing to make an order for the refund by the Appellant in the second appeal to the Appellants in the first appeal of the purchase price paid by the Appellants in the first appeal to the Appellant in the second appeal, together with penalties and interest.3.Whether the lower court erred in condemning the Appellants in the first appeal and the Appellants in the second appeal to pay the costs of the suit to the 1st Respondent in both appeals. 26.These issues are interrelated. I will therefore consider them together. The suit property was not registered and, as such, had no title. It was, however, common ground before the lower court and this court that the suit property was owned by the predecessor of the County Government of Kisumu, the defunct Municipal Council of Kisumu (“the Council”). What the lower court was called upon to determine was who, between the Appellants in the first appeal and the 1st Respondent in both appeals, had lawfully acquired the suit property from the Council. Before considering this issue, I wish to dispose of an issue which was raised by the Appellant in the second appeal, namely, that there were two separate and distinct parcels of land that were in dispute before the lower court, which he referred to as Plot No. 1-137(80) and Plot No. 80 Migosi, Phase II. 27.The Appellant in the second appeal claimed that the 1st Respondent in both appeals owned Plot No. 1-137(80) measuring 0.228 hectares, while the Appellant in the second appeal owned and sold to the Appellants in the first appeal Plot No. 80 Migosi, Phase II, measuring 0.0210 hectares, and that the two plots were separate and distinct. From my review and analysis of the evidence and all the material placed before the lower court by the parties, I am unable to agree with the Appellant in the second appeal’s position. The evidence on record shows that there was only one parcel of land on the ground, which was being claimed by the Appellants in the first appeal and the 1st Respondent in both appeals. From the correspondence and other documents on record, Plot No. 1-137, Plot No. 1-137(80), and Plot No. 80 Migosi, Phase II were used interchangeably by the Council to refer to the said parcel of land. As I have mentioned earlier in the judgment, the land in dispute had no title. It was therefore unsurveyed. The measurements referred to in the various documents produced in court were therefore just estimates. 28.The 1st Respondent in both appeals traced their claim to the suit property to Francis M. Nyamango (“Nyamango”). The suit property was allocated to Nyamango by the Council as Plot No. 1-137, Migosi, on 20th June 1986. Nyamango sold the suit property to Edwin Ouko Otieno (“Ouko”) through an agreement of sale dated 28th April 1995. According to the said agreement, the suit property measured 18 meters by 12 meters, which is equivalent to 0.0216 hectares. Before Nyamango sold the suit property to Ouko, the Council confirmed on 29th June 1994 that Nyamango had paid all outstanding dues to the Council. On 1st September 1995, the Council wrote to Ouko confirming that he did not owe the Council any money and that the Commissioner of Lands was in the process of preparing a title deed for, among others, the suit property, and that the Commissioner required Kshs. 6,000/- for survey. Ouko paid the said sum of Kshs. 6,000/- to the Council for survey fees on 13th March 1996. On the same date, the Council wrote to the Commissioner of Lands, informing him that it had no objection to the Commissioner issuing a Certificate of Lease for the suit property to Ouko. In that letter, the Council referred to Plot No. 80, and copied the letter to, among others, “Plot File No. 1-137”. On 22nd March 1996, the Commissioner of Lands, on behalf of the Council, issued Ouko with a letter of allotment in respect of the suit property, which was referred to as “UNS.RESIDENTIAL PLOT NO. 80-MIGOSI S.S.S measuring approximately 0.228 hectares. It is clear from the foregoing history that it was the same land that Ouko purchased from Nyamango as Plot No. 1-137, which was allocated to him by the Commissioner of Lands as unsurveyed Plot No. 80 Migosi S.S.S. Whether the land measured 0.0216 hectares as indicated in the agreement between Nyamango and Ouko or 0.228 hectares as indicated in the letter of allotment from the Commissioner of Lands could only be determined through a survey which had not been done at the time the proceedings before the lower court were instituted. I am, however, not persuaded that these differences in the measurements given in the various documents meant that the land which Ouko purchased from Nyamango and was ultimately allocated to him by the Commissioner of Lands, and which he sold to the 1st Respondent in both appeals, was different from Plot No. 80 Migosi Phase II, which the Appellant in the second appeal claimed to own. It is worth noting that the measurement of 0.0216 hectares which was given in the sale agreement between Nyamango and Ouko is not materially different from the measurement of 0.0210 hectares in the Appellant in the second appeal’s letter of allotment. It is therefore my finding that the Appellants in the first appeal and the 1st Respondent in both appeals were claiming the same parcel of land. 29.Having made a finding that the dispute was over the same parcel of land which was originally owned by the Council, I will now move to the issue as to who, between the Appellants in the first appeal and the 1st Respondent in both appeals, acquired the suit property lawfully from the Council, and had a valid ownership claim over it. 30.In Hubert L. Martin & 2 Others v. Margaret J. Kamar & 5 Others[2016] eKLR, the court stated as follows:“A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain…Every party must show that their title has a good foundation and passed properly to the current title holder. With the nature of case at hand, I will need to embark on investigating the chain of processes that gave rise to the two titles in issue as it is the only way I can determine which of the two titles should be upheld.” 3.1In Republic v. City Council of Nairobi & 3 others [2014] eKLR, the court stated as follows:“From the case as presented by the Applicant they no doubt had beneficial interest in the suit plot. As was held by Warsame, J (as he then was) in Rukaya Ali Mohamed vs. David Gikonyo Nambacha & Another Kisumu HCCA No. 9 of 2004 once an allotment letter is issued and the allottee meets the conditions therein, the land in question is no longer available for allotment since a letter of allotment confers absolute right of ownership or proprietorship unless it is challenged by the allotting authority or is acquired through fraud, mistake or misrepresentation or that the allotment was out rightly illegal or it was against public interest. In other words, where land has been allocated, the same land cannot be reallocated unless the first allocation is validly and lawfully cancelled.” 32.In Kamau James Njendu v. Serah Wanjiru & another [2018] eKLR the court stated as follows:“In essence therefore I find that there could have been double allotment of the suit land and the blame would therefore lay squarely on the Settlement Fund Trustee. In the case of M’Ikiara M’Rinkanya & Another –v- Gilbert Kabeere M’Mbijiwe, (1982-1988) 1KAR 196, the court held that where there was a double allocation of land, the first allotment would prevail. That therefore there was no power to allot the same property again.” 33.In Benja Properties Limited v. Syedna Mohammed Burhannudin Sahed & 4 others [2015] eKLR, the Court of Appeal cited with approval the High Court case, Gitwany Investment Limited v. Tajmal Limited & 2 others [2006] eKLR, where the court stated that:“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 in the words of the Court of Appeal in Wreck Motors Enterprises vs. commissioner of Lands, C.A. No. 71/1997 (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 C.A 130/2003 (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 titles 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 save for the mistake, then the first in time must prevail. It must prevail because without cancellation of the original title, it retains its sanctity…” 34.After reviewing the evidence on record, I have no difficulty in concluding that the 1st Respondent in both appeals had a valid claim of ownership over the suit property. The 1st Respondent’s ownership of the suit property, as mentioned earlier, is traced back to Nyamango, who was allocated the suit property by the Council on 20th June 1986. Nyamango sold the suit property to Ouko in 1995 after the Council certified that he had no outstanding dues on the land. Ouko was issued with a formal letter of allotment by the Commissioner of Lands on 22nd March 1996, after the Council confirmed that he had cleared all charges due to the Council on the land. Ouko accepted the Commissioner of Lands' offer and paid the required charges. Ouko remained the owner of the suit property until he sold it to the 1st Respondent in both appeals on 18th May 2020. There is no evidence that any charges or fees were due to the County Government on the property at the time it was sold to the 1st Respondent in both appeals. The sale of the suit property by Ouko to the 1st Respondent in both appeals was approved by the County Government. It is clear from the foregoing that the root of the ownership of the suit property by the 1st Respondent in both appeals can be traced to the Council, which was the original owner of the land, and there is no break in the chain of transactions leading to the acquisition of the property by the 1st Respondent in both appeals. 35.The Appellants in the first appeal’s claim over the suit property is traced to the Appellant in the second appeal. The Appellant in the second appeal was allocated the suit property by the Council on 19th November 2010. The Council claimed to have “repossessed” several parcels of land from the allottees, among them the suit property, following a resolution of the Housing Development Committee of the Council passed on 19th February 2010, and subsequent newspaper advertisements in the Daily Nation and the Standard on 18th October 2010 and 21st October 2010 respectively. The repossession was said to have been carried out due to the failure of the said allottees of the plots to develop the same. 36.The minutes of the Council’s Housing Development Committee meeting held on 19th February 2010, which were produced before the lower court, contained particulars of the parcels of land to be “repossessed,” but did not include the names of the owners or allottees. The advertisements posted by the Council in the Daily Nation and the Standard on 18th October 2010 and 21st October 2010, respectively, were, however, not produced in evidence. It is, however, clear from the evidence on record that when the Council purported to “repossess” the suit property and allocate it to the Appellant in the second appeal, the suit property had already been allocated by the Commissioner of Lands to Ouko on 22nd March 1996. The allocation of the property by the Council to Nyamango, which the Council purported to revoke through the “repossession”, had been superseded by the new allocation of the property to Ouko, which was carried out by the Commissioner of Lands with the approval of the Council. The suit property was no longer subject to the terms and conditions under which it was allocated to Nyamango by the Council, but was subject to the new terms of allotment set out in the Commissioner of Lands' letter of allotment. The suit property could not, therefore, be “repossessed” by the Council. 37.Due to the foregoing, I agree with the lower court that the suit property, having been allocated by the Commissioner of Lands to Ouko, and Ouko having accepted the allotment and paid the necessary charges, was not available for reallocation by the Council to the Appellant in the second appeal. The Appellant in the second appeal did not therefore acquire a valid proprietary interest in the suit property from the Council, which he could transfer to the Appellants in the first appeal. The property was lawfully owned by Ouko, who transferred his interest subsequently to the 1st Respondent in both appeals. It follows that, as between the Appellants in the first appeal and the 1st Respondent in both appeals, it is the 1st Respondent in both appeals who was the lawful owner of the suit property. 38.Arising from that finding, the lower court’s finding that the 1st Respondent in both appeals was the lawful owner of the suit property and, as such, was not a trespasser on the same cannot be faulted. Halsbury’s Laws of England 3rd edition, Volume 38, at page 739, paragraph 1205 defines trespass as follows:“A person trespasses upon land if he wrongfully sets foot on, or rides or drives over it, or takes possession of it, or expels the person in possession of pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it, or it seems if he erects or suffers to continue on his own land anything which invades the air space of another, or if he discharges water upon another’s land, or sends filth or any injurious substance which has been collected by him on his own land to another’s land.” 39.The 1st Respondent in both appeals could not trespass on her own land in respect of which she had possession. The court was right in the circumstances to dismiss the Appellants in the first appeal’s suit against the 1st Respondent in both appeals. 40.With regard to the Appellants in the first appeal’s alternative claim for a refund of the purchase price together with a penalty, the agreement for sale dated 23rd November 2016 between the Appellants in the first appeal and the Appellant in the second appeal provided in Clause 9 that in the event of breach by the vendor, the vendor shall refund to the purchasers the total sum paid as the purchase price together with a penalty of 20% of the purchase price. 41.The Appellant in the second appeal sold to the Appellants in the first appeal a property which was not lawfully owned by him. The Appellant in the second appeal could therefore neither pass a good title to the Appellants in the first appeal nor possession of the property to them. In the circumstances, there was a total failure of consideration for which the Appellants in the first appeal paid the purchase price of Kshs. 1,440,000/-. The Appellant in the second appeal, having failed to pass a good title and deliver possession of the suit property to the Appellants in the first appeal, he was liable to refund the purchase price; otherwise, he would be unjustly enriched. 42.I agree with the Appellants in the first appeal that the lower court, having found that the Appellant in the second appeal had sold to the Appellants in the first appeal land that did not belong to him, the court should have allowed the Appellants in the first appeal’s prayer for a refund of the purchase price of Kshs. 1,440,000/-. In the circumstances of this case, I would not condemn the Appellant in the second appeal to pay a penalty of 20% of the purchase price, as he honestly believed that he had a valid title to the suit property. He was not out to defraud the Appellants in the first appeal of their money, nor did he intentionally breach the agreement of sale between them. It would be inequitable to order him to pay a penalty for breach of the said agreement in the circumstances. 43.On the issue of costs, in Halbury’s Laws of England, 4th Edition (Re-issue), [2010] Vol. 10, para 16, the authors have stated as follows:“The Court has discretion as to whether costs are payable by one party to another, the amount of those costs, and when they are to be paid. Where costs are in the discretion of the Court, a party has no right to costs unless and until the Court awards them to him and the Court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice”. 4.4The lower court dismissed the Appellants in the first appeal’s suit with costs. The court ordered the Appellants in the first and second appeals to pay the said costs. The court did not order costs against the County Government. Costs normally follow the event, and the payment thereof is ordered at the court's discretion. In this case, the court, having dismissed the Appellants in the first appeal’s suit, did not err in condemning them to pay the costs of the suit to the 1st Respondent in both appeals. As for the Appellant in the second appeal, the court did not give any reason for ordering him to pay the costs to a co-defendant in respect of a suit against both of them, which was dismissed. 45.I have now found that the Appellants in the first appeal’s suit should have succeeded against the Appellant in the second appeal on the alternative prayer for a refund of the purchase price. I agree with the Appellant in the second appeal that had the County Government’s predecessor, the Municipal Council of Kisumu, exercised due diligence, the dispute between the parties could not have arisen. The County Government should have been ordered to pay the costs of the suit, rather than being exonerated from that liability. Conclusion 46.In conclusion, the consolidated appeals succeed in part. I uphold the findings by the lower court that the Appellants in ELCA No. E022 of 2023 did not prove their case against the 1st Respondent in ELCA No. E022 of 2023 and ELCA No. E032 of 2023, and as such were not entitled to the relief, they had sought against her in their amended plaint. The lower court, however, erred in failing to consider the alternative claim by the Appellants in ELCA No. E022 of 2023 for the refund by the 2nd Respondent in the appeal of the purchase price paid to him for the suit property, which I have found the said Appellants were entitled to. The lower court also erred in condemning the Appellant in ELCA No. E032 of 2023 to pay the costs of the suit while exonerating the County Government, which was the author of the dispute, from such liability. I would therefore vary the judgment delivered on 26th May 2023 by Hon. K.Cheruiyot, SPM, and make the following orders;1.Judgment is entered for Barrack Omondi Odero and Isabella Achieng Olwenyo, the Appellants in ELCA No. E022 OF 2023, against Nelson Odhiambo Ochungo, the 2nd Respondent in the appeal in the sum of Kshs. 1,440,000/- together with interest at court rates from the expiry of 60 days from the date of this judgment until payment in full.2.The costs of the lower court suit shall be paid to the Appellants in ELCA No. E022 of 2023, Barrack Omondi Odero and Isabella Achieng Olwenyo, and to the 1st Respondent in ELCA No. E022 of 2023 and ELCA No. E032 of 2023, Mary Obondo Nyunja, by the County Government of Kisumu, the 3rd Respondent in ELCA No. E022 of 2023, which is also the 4th Respondent in ELCA No. E032 of 2023.3.The lower court order on costs against the Appellants in ELCA No. E022 of 2023, Barrack Omondi Odero and Isabella Achieng Olwenyo, and the Appellant in ELCA No. E032 of 2023, Nelson Odhiambo Ochungo is set aside.4.The Appellants in ELCA No. E022 of 2023, Barrack Omondi Odero and Isabella Achieng Olwenyo shall have the costs of the appeal to be paid by the County Government of Kisumu, the 3rd Respondent in ELCA No. E022 of 2023, which is also the 4th Respondent in ELCA No. E032 of 2023.5.The Appellant in ELCA No. E032 of 2023, Nelson Odhiambo Ochungo, and the 1st Respondent in ELCA No. E022 of 2023 and ELCA No. E032 of 2023, Mary Obondo Nyunja shall bear their own costs of the appeal. WRITTEN AND SIGNED AT NAIROBI BYS. OKONG’OJUDGEDELIVERED, DATED AND COUNTERSIGNED AT KISUMU ON THIS 21ST DAY OF MAY 2026E. ASATIJUDGEJudgment delivered virtually through Microsoft Teams Video Platform in the presence of:Bagada for the Appellants in ELCA No. E022 of 2023No appearance for the Appellants in ELCA No. E032 of 2023Omondi T for the 1st RespondentNo appearance for the 2nd RespondentNo appearance for the 3rd RespondentNo appearance for the 4th RespondentAtika - Court Assistant