Ogalo & another v Odhiambo & another (Civil Appeal E021 of 2025) [2026] KECA 1331 (KLR) (10 July 2026) (Judgment)

Ogalo & another v Odhiambo & another (Civil Appeal E021 of 2025) [2026] KECA 1331 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1331 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E021 of 2025 PO Kiage, F Tuiyott & JM Ngugi, JJA July 10, 2026 Between Jane Aboge Ogalo 1st Appellant Benson Odhiambo Oriedo 2nd Appellant and Joan Owira Odhiambo 1st Respondent Nairobi County Government 2nd Respondent (Being and appeal from the Judgment of the Environment & Land Court at Nairobi (Mogeni, J.) dated 12th October, 2023 in ELC Suit No. E043 of 2022) Judgment 1.This appeal arises from a judgment of the Environment and Land Court sitting at Nairobi (J. Mogeni, J.) in ELC Suit No. E043 of 2022 delivered on 12th October, 2023 in which the learned Judge was called upon to resolve competing claims over a parcel of land known as Plot No. C6-219 (the suit property) that had been subjected to successive administrative actions by the former Nairobi City Council. At its core, the dispute presents a familiar but difficult problem in Kenyan land law: how courts ought to respond when public authorities, through procedural lapses and opaque record- keeping, generate competing claims of right over the same property, thereby placing private parties in conflict, sometimes, through no clear fault of their own. 2.The litigation has its genesis in an allocation made by the Nairobi City Council to the late husband of the 1st Respondent. The record shows that the deceased was allocated the suit plot by the City Council in the late 1980s and that payments were made pursuant to that allocation. It is common ground that the allocation did not culminate in the issuance of a registered title in his name. Years later, the City Council proceeded to allocate the same parcel to the Appellant, who subsequently took possession and undertook developments on the land. 3.Aggrieved by these developments, the 1st Respondent instituted suit before the Environment and Land Court, asserting that the reallocation was unlawful and that the Appellant’s title was tainted by procedural impropriety. She sought, among other reliefs, a declaration of ownership and damages for trespass. The Appellant, on her part, maintained that she had lawfully acquired the suit property, contending that the transaction amounted to a market sale and that she was an innocent purchaser deserving of protection. 4.At the trial, the parties led evidence which, though not always as orderly as one would hope in disputes grounded in historical municipal records, nonetheless provided a sufficiently clear picture of the competing claims, the documentary trails relied upon, and the administrative gaps that lay at the heart of the dispute. 5.The 1st Respondent, who testified as PW3, brought the suit as the widow and administratrix of the estate of the late Joseph O. Jaoko. Her case was that the deceased purchased the suit property from the defunct City Council of Nairobi in 1988 and thereafter developed it by constructing a pit latrine and a two-roomed rental structure on the land. According to the Plaintiff, the deceased remained in possession and enjoyed quiet occupation of the property until his death, after which the estate continued to treat the property as part of the deceased’s assets. She testified that neither she nor the deceased had ever authorized the Appellant or the 2nd Respondent, or any other person, to enter or occupy the suit property. 6.In support of the 1st Respondent’s case, PW1, John Kelo Odhiambo, a son of the deceased, testified that the family had continued to exercise possession over the suit property after the deceased’s death. He stated that the two rental rooms erected by the deceased generated monthly rental income of approximately Kshs. 4,000 per room. According to PW1, in 2019 the family discovered that unknown persons had entered the suit property and had commenced construction thereon. Upon making inquiries, they established that the persons undertaking the construction were the Appellant and the 2nd Respondent. PW1 testified that the family attempted to engage the persons on site and also reported the matter to the 2nd Respondent, the police, and later the Directorate of Criminal Investigations. He produced, among other documents, the 1988 purchase receipt, receipts for payment of rates, and correspondence from the 2nd Respondent. 7.Under cross-examination, PW1 conceded that he had no allotment letter, certificate of title, or other formal ownership document in respect of the suit property apart from the receipts and related correspondence produced in evidence. He further acknowledged that while the family claimed to have received rental income from the property over the years, no documentary proof of rent collection had been produced because rent had largely been paid in cash and without issuance of receipts. 8.PW2, Moses Bechi, also a son of the deceased, substantially corroborated the evidence of PW1. He testified that the suit property belonged to the deceased and that the deceased had constructed the structures on the land. He stated that upon learning of the ongoing construction by the 1st and 2nd Defendants, he sought clarification from the 2nd Respondent and obtained correspondence confirming that the property had originally belonged to the deceased. He similarly acknowledged that the family had no formal title documents and relied principally on the purchase receipt, payment receipts, and correspondence from the 2nd Respondent. He further conceded that despite the issuance of letters of administration, the property had never been formally transmitted into the names of the administrators or beneficiaries of the estate. 9.The Plaintiff herself testified through an interpreter. She confirmed that the deceased acquired the suit property in or about 1987 or 1988 and that the family regarded it as part of the deceased’s estate. She stated that although she did not personally manage the property or make rate payments, she knew that the deceased had developed the property and that the family had never relinquished it nor consented to any reallocation or occupation by third parties. 10.The Appellants denied the claim and maintained that they were lawfully in occupation of the suit property. Their case was that the property had been lawfully reallocated to them by the 2nd Respondent in 2012 after the original allottee had allegedly defaulted in payment of rates and ground rent. They contended that upon allotment they took possession and developed the land lawfully. They denied demolishing any structures belonging to the Plaintiff or the deceased and maintained that when they took possession, the land was vacant and undeveloped. 11.The principal witness for the Appellants was DW1, Jane Aboge Ogalo, the 1st Appellant. She testified that she acquired the suit property through a reallocation process undertaken by the 2nd Respondent in 2012. According to her, she completed the required application process, paid the requisite fees, and was issued with documents including a plot card and payment receipts. She stated that construction began in 2013 and that by 2014 substantial development had taken place on the property, including rental units from which she later derived income. She also testified that she had consistently paid rates and other charges demanded by the 2nd Respondent. 12.During cross-examination, however, DW1 conceded that she had not produced a formal letter of allotment. She also acknowledged that the plot card and payment receipts she relied upon did not themselves constitute conclusive proof of ownership. She further admitted that before taking possession she had not independently verified whether the property had previously been allocated or occupied by another person. 13.The 2nd Respondent’s case was that although the suit property had initially belonged to the deceased, it had been lawfully repossessed and reallocated due to prolonged non-payment of ground rent and rates. The 2nd Respondent asserted that the deceased had failed to pay the requisite rates from 1988, thereby justifying repossession and subsequent reallocation to the 1st and 2nd Defendants in 2012. 14.DW3, a land surveyor employed by the 2nd Respondent, testified on behalf of the County Government. His evidence was that according to the records available to the 2nd Respondent, the Appellants were the current allottees of the suit property. However, during cross-examination, DW3 conceded that he had limited personal knowledge of the reallocation process. He admitted that he did not know who specifically carried out the reallocation, had not seen a formal allotment letter issued to the Appellants, and largely relied on records and memoranda availed to him shortly before trial. 15.In her judgment, the learned Judge distilled the dispute into three principal issues for determination: whether the repossession of the suit property from the deceased was lawful; whether the subsequent reallocation of the property to the Appellants was lawful; and whether the 1st Respondent was entitled to the reliefs sought. 16.On the first issue, the learned Judge began by examining the nature of the deceased’s interest in the suit property. She accepted, as largely uncontested, that the deceased had purchased Plot No. C6-219 Kayole from the defunct City Council of Nairobi in 1988. Indeed, the 2nd Respondent did not dispute that the property had originally been allocated to the deceased. However, the learned Judge found that although the deceased had acquired and occupied the property, the evidence placed before the court did not demonstrate that his interest had crystallized into full proprietary ownership in the strict legal sense. In particular, the court noted the absence of formal ownership documents such as an allotment letter or title instrument. The learned Judge, therefore, concluded that while the Plaintiff had established that the deceased possessed a recognizable beneficial or possessory interest in the property, she had not proved full legal ownership. 17.Turning to the lawfulness of repossession, the learned Judge held that the 2nd Respondent had failed to demonstrate that it repossessed the suit property in accordance with the law. The 2nd Respondent’s case was that the property had been repossessed due to prolonged non-payment of rates and ground rent. The learned Judge accepted that non-payment of rates could, in appropriate circumstances, entitle a rating authority to recover outstanding sums. However, she found that the 2nd Respondent had not placed before the court evidence showing compliance with the statutory procedures governing such recovery. In particular, the learned Judge considered section 17 of the Rating Act and observed that the statute contemplates formal enforcement measures, including demand and recovery proceedings through a court of competent jurisdiction. The 2nd Respondent did not produce evidence of demand notices, enforcement notices, or court proceedings undertaken to recover the alleged arrears. In the absence of such evidence, the learned Judge found that the purported repossession of the suit property was unprocedural, unlawful, and, therefore, illegal. 18.On the second issue, the learned Judge reasoned that once the repossession was found to have been unlawful, the subsequent reallocation of the suit property to the Appellants could not stand. In her view, the legality of the reallocation depended entirely on the legality of the repossession. Since the 2nd Respondent had not lawfully divested the deceased or his estate of its interest in the property, it had no legal basis upon which to reallocate the property to third parties. The learned Judge, therefore, concluded that the allocation of the suit property to the Appellants was itself unlawful. Although the court did not expressly find that the Appellants had acted fraudulently or in bad faith, it held that their claim to the property was irredeemably tainted by the illegality of the process through which they derived their interest. 19.Having so found, the learned Judge proceeded to consider the reliefs sought by the Plaintiff. She granted an order requiring the Appellants to vacate the suit property and remove the structures erected thereon, reasoning that their continued occupation rested on an unlawful reallocation. However, the learned Judge declined to award damages for trespass. She reasoned that although the 1st Respondent had succeeded in demonstrating unlawful repossession and reallocation, she had not proved full legal ownership of the suit property so as to ground a conventional claim in trespass. 20.The learned Judge also considered the Plaintiff’s claim for loss of user based on alleged rental income from the structures said to have been demolished. She observed that the Plaintiff had not produced documentary evidence such as tenancy records, rent receipts, or other proof sufficient to establish the exact rental income claimed. Nonetheless, taking into account the evidence that structures had existed on the property and had generated some rental value, the learned Judge awarded the 1st Respondent Kshs. 62,600 under that head. 21.Finally, the learned Judge considered the claims for aggravated and exemplary damages. She declined to award aggravated damages, finding no sufficient proof of malice, spite, or oppressive conduct directed specifically at the Plaintiff. However, she awarded exemplary damages of Kshs. 500,000 against the 2nd Respondent on the basis that its conduct in repossessing and reallocating the property without adherence to the law warranted judicial censure. In the result, judgment was entered substantially in favour of the Plaintiff, with the court holding that the repossession and reallocation of the suit property were unlawful and granting relief accordingly. 22.Dissatisfied with that outcome, the Appellants lodged the present appeal, raising numerous grounds which, distilled to their essence, challenge both the finding on ownership and the award of damages. The Appellants fault the learned Judge for failing to appreciate that the allocation to the deceased had lapsed due to non-compliance with conditions; for disregarding the Appellants’ claim that they acquired the land through a lawful market sale; and for holding them liable in damages notwithstanding the contested nature of the title. 23.As this is a first appeal, we are enjoined to reconsider the evidence afresh and draw our own conclusions, while bearing in mind that we did not have the advantage of seeing or hearing the witnesses testify. That duty is well settled in Selle v Associated Motor Boat Co. Ltd [1968] EA 123 and reaffirmed in Jabane v Olenja [1986] KLR 661. 24.The appeal was argued by way of written submissions supplemented by oral highlights. During the plenary hearing of the appeal on 20th January, 2026, Prof. Mumma, Senior Counsel, appeared for the Appellant; Mr. Orondo Tuli and Ms. Atieno Tuli, learned counsel, appeared for the 1st Respondent; while Mr. Ashasha appeared for the 2nd Respondent. They each gave oral highlights of their filed submissions and engaged with the Court. 25.On appeal, the Appellants challenge the judgment of the Environment and Land Court on both liability and remedies. Their principal submission is that the learned Judge erred in law and fact by finding that the reallocation of the suit property to the Appellants was unlawful, by ordering removal of the Appellants’ developments from the suit property, and by awarding damages in favour of the 1st Respondent notwithstanding the court’s own finding that the deceased’s rights over the suit property had not crystallized into full proprietary rights. 26.Counsel for the Appellants first submitted that the learned Judge’s findings were internally inconsistent. It was argued that, having expressly found that the deceased’s interest in the suit property had not crystallised into a proprietary right capable of protection in law, the court could not logically proceed to grant orders for removal of the Appellants’ building and award damages in favour of the 1st Respondent. Counsel further submitted that, in any event, the claim for loss of user had not been proved, since no documentary or other cogent evidence of the alleged rental income was tendered. Reliance was placed on Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees [2020] eKLR and PNE v PNN [2019] eKLR in support of the argument that damages must rest on a proper evidentiary foundation. 27.Secondly, the Appellants challenged the trial court’s conclusion that the 1st Respondent’s predecessor had met the conditions necessary for allotment and retention of the suit property. Counsel submitted that the deceased’s alleged acquisition in 1988 was supported only by a single receipt dated 2nd September 1988 and not by the documents ordinarily associated with lawful allotment of an unregistered plot, such as a letter of allotment, plot card, beacon certificate, lease, or certificate of ownership issued by the City Council. It was argued that under the standard practice of allocation of unsurveyed plots within Nairobi’s site-and-service schemes, a receipt by itself was insufficient to establish a completed allotment or proprietary entitlement. Counsel relied on authorities including Mbau Saw Mills Ltd v Attorney General & Another [2014] eKLR (Civil Case No. 59 of 2008) and Kuria Greens Ltd v Registrar of Titles [2011] eKLR.; to argue that a valid allotment ordinarily required more than payment alone and had to be evidenced by the full chain of allocation documentation. On that basis, the Appellants submitted that the learned Judge correctly found that the deceased’s rights had not crystallized, but erred in failing to give full legal effect to that finding. 28.Thirdly, the Appellants attacked the learned Judge’s application of section 17 of the Rating Act. Counsel submitted that the trial court erroneously treated section 17 of the Rating Act as the exclusive legal mechanism through which the 2nd Respondent could repossess the suit property. In the Appellants’ view, section 17 of the Rating Act governs recovery of rates from a registered rateable owner and does not exhaust the powers of a local authority in relation to incomplete allotments or conditional allocations of unsurveyed plots. Counsel argued that the deceased’s failure to pay stand premium, ground rent, and other charges meant that the allotment process was never perfected, with the result that ownership remained vested in the City Council. Accordingly, when the deceased defaulted, the County Government retained power to terminate the incomplete allocation and reallocate the property without first invoking section 17 of the Rating Act. Counsel further argued that the learned Judge improperly conflated ground rent, stand premium, and rates, thereby applying the wrong statutory framework to the dispute. It was submitted that because the deceased never perfected the allotment, there was no accrued legal title capable of surviving termination for non-compliance with allocation conditions. 29.Fourthly, and relatedly, counsel submitted that the Appellants were the lawful allottees and occupiers of the suit property. They argued that the Appellants acquired the property in 2012 through a formal reallocation process undertaken by the 2nd Respondent, following application and payment of the requisite charges. According to counsel, the Appellants’ ownership claim was supported not merely by receipts but by a more complete evidentiary chain including a plot card, application documents, survey fees, beacon certificate fees, approval for building plans, and evidence of actual possession and development of the property. Counsel emphasized that since 2012 the Appellants had been in open and uninterrupted occupation and had constructed a substantial four-storey development comprising approximately twenty apartments. They argued that the trial court failed to properly weigh this evidence and wrongly displaced the Appellants’ occupation in favour of a party whose predecessor had never completed the allotment process. 30.Regarding damages, counsel further submitted that the award for loss of user was unsupported by evidence. The 1st Respondent had claimed rental income from two rooms allegedly constructed by the deceased, yet no tenancy agreements, receipts, photographs, rent schedules, or other documentary proof of such income were produced. Counsel argued that the learned Judge herself acknowledged these evidentiary deficiencies but nonetheless proceeded to award damages on speculative reasoning. In the Appellants’ view, such an award lacked evidentiary foundation and amounted to an error in principle. Similarly, the award of exemplary damages against the 2nd Respondent was challenged on the basis that there was no proof of oppressive, arbitrary, or unconstitutional conduct sufficient to justify such punitive relief. 31.In conclusion, the Appellants urged this Court to allow the appeal, set aside the judgment of the Environment and Land Court in its entirety, uphold the reallocation of the suit property to the Appellants as lawful, and affirm the Appellants’ occupation and developments on the suit property. 32.The 2nd Respondent supports the appeal and urges this Court to set aside the judgment of the Environment and Land Court in its entirety. Counsel submitted that the learned Judge erred both in assuming jurisdiction over the Respondent’s claim as framed and in the substantive conclusions reached regarding trespass, repossession, and reallocation of the suit property. 33.Counsel first submitted that the learned Judge misdirected herself by granting substantive reliefs in favour of the 1st Respondent despite having found that the deceased’s interest in the suit property had not crystallized into a proprietary right recognized and protected by law. In counsel’s view, once the trial court concluded that the deceased had not established legal ownership or a legally enforceable right of possession over the suit property, the claim in trespass necessarily failed. It was argued that trespass to land presupposes proof of lawful possession or an immediate right to exclusive possession. Reliance was placed on M’Mukanya v M’Mbui [1984] KLR 761 for the proposition that a claimant in trespass must establish either actual possession or an immediate right to possession. Counsel submitted that since the 1st Respondent failed to prove ownership or exclusive possessory rights, the court had no basis for ordering demolition of the Appellants’ developments or awarding damages in her favour. 34.The 2nd Respondent further submitted that the award for loss of user was unsupported by evidence and was made in error. Counsel pointed out that although the 1st Respondent claimed rental income from two rooms allegedly erected on the suit property, no documentary evidence was produced to prove the existence of tenants, payment of rent, tenancy arrangements, or the actual amount of rental income claimed. Indeed, the learned Judge herself acknowledged the absence of rent receipts, tenancy records, M-Pesa statements, or photographic evidence of the alleged structures. Counsel argued that notwithstanding those findings, the court proceeded to award Kshs. 62,600 for loss of user on speculative grounds. In the 2nd Respondent’s view, such an award lacked any evidentiary basis and could not be sustained. 35.Turning to the issue of reallocation, counsel submitted that the learned Judge erred in holding that the 2nd Respondent unlawfully repossessed and reallocated the suit property by relying on section 17 of the Rating Act. Counsel argued that the Rating Act governs recovery of unpaid rates from owners of rateable property and presupposes the existence of vested proprietary rights. It was submitted that the provision did not apply to the present dispute because the deceased had never completed the allotment process so as to acquire proprietary rights over the suit property. Accordingly, the question before the court was not recovery of rates from a registered owner, but the legal consequences of non- compliance with conditions attached to an incomplete allotment. 36.Counsel submitted that the deceased’s alleged acquisition of the suit property in 1988 was unsupported by the documentary evidence ordinarily associated with a completed allocation or transfer of land from the then Nairobi City Council. The only evidence of acquisition was a receipt showing payment of Kshs. 45,000 on 2nd September 1988. Counsel emphasized that no allotment letter, lease, plot card, certificate of ownership, or transfer documentation was produced by the 1st Respondent. In the 2nd Respondent’s view, the receipt alone could not establish perfected ownership. Rather, it merely evidenced partial compliance with a conditional allocation arrangement, subject to payment of additional charges including ground rent and rates. 37.Counsel further argued that the documentary record itself demonstrated non-compliance by the deceased with the conditions of allocation. It was noted that after the 1988 payment, the next documented payment was not until 3rd March 1992, when the deceased paid Kshs. 875 for rates and Kshs. 480 for ground rent. According to counsel, this gap demonstrated prolonged default in meeting the conditions attached to the allotment. The 2nd Respondent submitted that by failing to pay the requisite charges within the stipulated timelines, the deceased allowed the allocation to lapse. Consequently, no proprietary rights accrued in his favour capable of protection in law. 38.In support of this position, counsel relied on authorities addressing the legal consequences of failure to comply with allotment conditions, including Kenya Anti-Corruption Commission v Paul Ng’ethe Sam & Others and Ireri v Attorney General & 5 Others [2023] KECA 1603 (KLR). Counsel submitted that these authorities affirm the principle that an allotment letter or offer of allocation does not by itself confer proprietary rights unless the allottee complies with the stipulated conditions, including payment of stand premium, rent, and other charges within the prescribed period. Failure to comply results in lapse of the allotment and reversion of the property to the allocating authority. 39.On that basis, counsel contended that the 2nd Respondent remained legally entitled to repossess and reallocate the suit property once the deceased failed to perfect the allotment. It was submitted that the reallocation to the Appellants in 2012 was, therefore, lawful and within the powers of the County Government. Since the deceased had no subsisting proprietary interest capable of protection, there was no legal impediment to the reallocation. Counsel maintained that the Appellants’ occupation and development of the suit property rested on a valid reallocation process and ought not to have been disturbed. 40.Finally, counsel challenged the award of exemplary damages of Kshs. 500,000 against the 2nd Respondent. It was submitted that there was no evidentiary basis for punitive damages, particularly in circumstances where the County Government had acted within what it believed to be its lawful statutory mandate in dealing with an incomplete and lapsed allotment. Counsel argued that the record disclosed no oppressive, arbitrary, malicious, or unconstitutional conduct sufficient to justify exemplary damages. 41.In conclusion, the 2nd Respondent urged this Court to allow the appeal, set aside the judgment of the Environment and Land Court, and uphold the reallocation of the suit property to the Appellants as lawful. 42.The 1st Respondent opposed the appeal and urged this Court to uphold the judgment of the Environment and Land Court in its entirety. Counsel submitted that the learned Judge properly evaluated both the pleadings and the evidence and correctly concluded that the repossession and subsequent reallocation of the suit property were unlawful. 43.Counsel first rejected the Appellants’ argument that the trial court lacked jurisdiction or exceeded its jurisdiction by entertaining and determining the claim. It was submitted that the suit before the trial court was fundamentally a claim arising from trespass and unlawful dispossession, and, therefore, fell squarely within the jurisdiction of the Environment and Land Court. Counsel argued that the existence of a permanent structure erected by the Appellants on the suit property underscored the live and continuing nature of the trespass complained of. Reliance was placed on Eliud Njoroge Gachiri v Stephen Kamau Nganga (ELC No. 121 of 2017) for the proposition that trespass is actionable where unlawful intrusion or continued occupation of land is established. 44.On the merits, counsel submitted that it was not disputed that the suit property had originally been allocated to the 1st Respondent’s late husband, Joseph O. Jaoko, by the then Nairobi City Council in 1988 upon payment of Kshs. 45,000. Counsel argued that the 2nd Respondent itself admitted, both in its pleadings and through its witness, that the property had originally belonged to the deceased and that the purported repossession and reallocation were premised solely on alleged default in payment of rent and rates. In counsel’s view, that admission was significant because it established the deceased’s prior beneficial interest and shifted the evidential burden to the Appellants and the 2nd Respondent to prove lawful repossession and lawful reallocation. 45.Counsel submitted that the learned Judge correctly held that the 2nd Respondent failed to prove compliance with the legal requirements governing repossession. It was argued that once the 2nd Respondent asserted that the suit property had been repossessed for non-payment of rates or rent, the burden lay upon it to produce evidence demonstrating the repossession process, including notices of default, demand notices, minutes of the committee authorizing repossession, or allotment records evidencing lawful cancellation and reallocation. Counsel emphasized that no such evidence was produced. In particular, counsel noted that neither the Appellants nor the 2nd Respondent produced: a notice of default in payment of rates or rent; documentary evidence of cancellation of the deceased’s allotment; minutes authorizing repossession; or a formal allotment letter to the Appellants. 46.Counsel, therefore, submitted that the trial court correctly concluded that the allegation of lawful repossession was unsupported by evidence. 47.The 1st Respondent further argued that the Appellants’ reliance on the Rating Act was misplaced. In counsel’s view, the Appellants paradoxically challenged the trial court’s reliance on the Rating Act while at the same time relying on the deceased’s alleged default in payment of rates as the legal justification for repossession. Counsel submitted that the Appellants could not invoke default in rates as the foundation for repossession while disclaiming the statutory framework governing enforcement of such default. The 1st Respondent maintained that the learned Judge correctly held that if repossession was based on default in rates, the 2nd Respondent had to demonstrate compliance with the applicable statutory procedure, which it failed to do. 48.Counsel also rejected the Appellants’ argument that the 1st Respondent lacked a sufficient proprietary interest to maintain the claim. It was submitted that the learned Judge’s finding that the deceased’s interest had not crystallized into full legal ownership did not extinguish the estate’s possessory rights. Rather, counsel argued, the judgment recognized that the deceased had acquired a beneficial interest and had remained in possession through occupation and development of the suit property. According to counsel, that possessory interest was sufficient to found a claim in trespass because trespass protects possession and the immediate right to possession, not merely registered title. Counsel submitted that the estate’s entitlement to immediate and exclusive possession remained intact unless lawfully extinguished, which had not occurred. 49.On this basis, counsel contended that there was no inconsistency in the trial court’s judgment. The learned Judge was correct, it was argued, in finding both that the deceased lacked perfected legal title and that the estate nonetheless retained a protectable possessory interest capable of supporting relief for trespass and unlawful dispossession. Counsel emphasized that possession, occupation, and beneficial ownership may each ground legal protection even in the absence of formal title documentation. 50.Counsel further submitted that the Appellants failed to establish any superior claim to the suit property. It was argued that the Appellants’ case was particularly weak because they produced no formal allotment letter and relied primarily on a plot card and payment receipts. In counsel’s submission, those documents were insufficient to prove a valid allotment, especially in the absence of evidence showing lawful repossession of the deceased’s prior interest. Counsel, therefore, argued that the Appellants’ occupation rested on an invalid foundation and could not defeat the 1st Respondent’s prior possessory rights. 51.Regarding damages, counsel submitted that the trial court properly exercised its discretion in awarding damages. The award of Kshs. 62,600 for loss of user was defended on the basis that although exact rental income was not proved through documentary evidence, the evidence nonetheless established the existence of structures on the suit property and loss occasioned by the Appellants’ entry and demolition. Counsel submitted that the court was entitled to make a reasonable assessment of damages based on the evidence before it. 52.Similarly, counsel supported the award of Kshs. 500,000 in exemplary damages against the 2nd Respondent. It was argued that the County Government’s conduct in repossessing and reallocating the suit property without adherence to due process justified punitive damages. In counsel’s view, the 2nd Respondent acted arbitrarily and in disregard of the law, thereby warranting judicial censure. 53.In conclusion, the 1st Respondent submitted that the appeal lacked merit and invited this Court to dismiss it with costs, uphold the trial court’s findings, and affirm the reliefs granted in favour of the 1st Respondent. 54.As we see it, this appeal turns on three interrelated questions. First, whether the Appellants acquired the suit property through a lawful process capable of conferring upon them a superior legal interest. Secondly, whether the 2nd Respondent lawfully repossessed the suit property before reallocating it to the Appellants. Thirdly, whether the trial court was justified in awarding relief founded on trespass, including damages for loss of user and exemplary damages. These issues are closely connected because the answer to each substantially informs the others. 55.We begin with the Appellants’ acquisition of the suit property. The Appellants urged us to hold that their acquisition in 2012 was lawful and sufficient to defeat the 1st Respondent’s claim. In our view, however, the inquiry cannot begin or end with the documents held by the Appellants. A logically prior question must first be answered: what interest, if any, was transferred to the Appellants, by whom, and pursuant to what lawful authority? 56.That question is particularly important in disputes involving competing claims to public or formerly public land. In such disputes, courts may be tempted to focus on the apparent regularity of downstream documents such as receipts, plot cards, building approvals, and rate payments. While such documents may be relevant, they are not dispositive. The more fundamental inquiry is whether the source of the allocation itself was lawful. The legal validity of downstream documents cannot exceed the legality of the allocation from which they derive. 57.This is merely an application of the well-established nemo dat quod non habet principle: no person can transfer a better title than he himself possesses. If the allocating authority lacked legal power to reallocate the suit property, the resulting allocation could not confer a valid legal interest upon the Appellants regardless of the regularity of subsequent administrative processes. 58.The Appellants submitted that they acquired the suit property through a lawful market process following reallocation by the 2nd Respondent in 2012. In support of that contention, they relied on a plot card, receipts evidencing payment of survey and beacon fees, approvals relating to development, and evidence of substantial construction undertaken on the property. They emphasized that they had invested significantly in the property and had since erected a substantial residential development. 59.We do not doubt that the Appellants made payments to the 2nd Respondent. Nor do we doubt that they subsequently developed the suit property. However, neither payment nor development is by itself determinative of the legality of acquisition. 60.The principal difficulty with the Appellants’ case lies in the evidentiary gap concerning the actual process of allocation. No allotment letter issued to the Appellants was produced. No committee minutes authorizing allocation were produced. No formal resolution of the 2nd Respondent authorizing reallocation was placed before the court. Indeed, DW3, the 2nd Respondent’s own witness, conceded that he did not know who specifically carried out the reallocation and had no personal knowledge of the process. His evidence on that issue was largely based on records placed before him shortly before trial. 61.That evidentiary weakness is significant. The burden of proving lawful allocation rested on the Appellants and the 2nd Respondent, especially because they asserted the positive fact of lawful reallocation. Sections 107 and 109 of the Evidence Act place the burden upon the party who asserts the existence of a fact. 62.The Appellants relied on authorities including Mbau Saw Mills Ltd v Attorney General & Another [2014] eKLR, Kuria Greens Ltd v Registrar of Titles [2011] eKLR, and Charles Munge v Nairobi City Council [2022] eKLR to argue that a valid allotment requires proof of compliance with allocation conditions. Properly understood, however, those authorities do not advance the Appellants’ case. If anything, they underscore the principle that proprietary interests in public land do not arise from informal arrangements alone. The allocation process must itself be demonstrably lawful and procedurally regular. 63.Measured against that standard, the evidentiary foundation for the Appellants’ claim remains thin. This case is not truly about competing purchasers in an ordinary market transaction. Rather, it concerns whether the allocating authority lawfully extinguished one interest and validly created another. That distinction is critical. For that reason, we are unable to accept the Appellants’ argument that downstream administrative documents such as plot cards, approvals, and payment receipts sufficiently established a superior legal claim. Those documents may evidence occupation and development; they do not, without more, cure defects in root allocation. 64.The Appellants’ claim, therefore, ultimately rises or falls on whether the 2nd Respondent lawfully repossessed the suit property before reallocating it. That brings us to the second issue. 65.In our view, this is the central issue in the appeal. The 2nd Respondent’s case was that the suit property had originally been allocated to the deceased in 1988 but that the allocation lapsed, or became liable to repossession, due to prolonged non-payment of rates and ground rent. It was on that basis that the 2nd Respondent claimed authority to repossess and subsequently reallocate the property. 66.Once the 2nd Respondent adopted that position, two burdens arose. First, it had to establish the factual basis for repossession, namely, actual default. Secondly, it had to establish the legal basis and procedure through which repossession was effected. 67.In our assessment, the 2nd Respondent substantially failed on both counts. The allegation of prolonged default was not supported by a coherent evidentiary record. No complete ledger of arrears was produced. No demand notices were placed before the court. No documentary trail showing accumulation of unpaid sums over time was tendered. The allegation of default remained largely conclusory. 68.Even assuming default existed, the decisive question remains how repossession was effected. On this issue, the evidentiary deficiency becomes fatal. No repossession notice was produced. No cancellation notice was produced. No minutes authorizing repossession were produced. No evidence of service upon the deceased or his estate was tendered. No evidence of any administrative or judicial process terminating the deceased’s interest was placed before the court. 69.The 2nd Respondent effectively invited this Court to infer lawful repossession from the mere existence of default. Like the trial court, we decline that invitation. Default does not automatically translate into lawful repossession. Repossession requires lawful process. 70.The Appellants criticized the learned Judge’s reliance on section 17 of the Rating Act, contending that the provision governs recovery of rates from registered owners and does not exhaust the County’s powers over incomplete allotments. There is some force in that submission. We accept that the issue cannot be reduced to a rigid proposition that section 17 of the Rating Act is the /exclusive pathway for every repossession involving municipal land. 71.That concession, however, does not assist the Appellants. Even if section 17 were not the exclusive statutory mechanism, the Appellants and the 2nd Respondent still bore the burden of demonstrating some lawful process by which repossession occurred. They demonstrated none. 72.In our respectful view, the real issue is not whether the deceased’s interest had crystallized into full legal ownership. That question, though relevant, risks obscuring the more important inquiry. Even where title has not been perfected, an allocating authority does not thereby acquire carte blanche to extinguish a beneficiary’s interest arbitrarily. 73.Public authorities, even when dealing with incomplete allotments, remain bound by legality, procedural fairness, and due process. At minimum, lawful repossession would ordinarily require notice of default or breach, notice of intended cancellation or repossession, an opportunity to remedy the breach where appropriate, and a demonstrable administrative decision authorizing repossession. None of these were proved. 74.The position advanced by the 2nd Respondent effectively amounts to this: because the deceased allegedly defaulted, the City Council could silently extinguish his interest and later allocate the property to third parties without notice, record, or process. That proposition is incompatible with basic rule-of-law values. Public power cannot be exercised through administrative opacity. 75.We, therefore, substantially agree with the learned Judge’s ultimate conclusion, even if not every aspect of her reasoning under the Rating Act is beyond criticism, that the 2nd Respondent failed to prove lawful repossession of the suit property. 76.Once that conclusion is reached, the legal fate of the reallocation follows. If the City Council had not lawfully repossessed the suit property, it lacked lawful authority to reallocate it to the Appellants. The root of the Appellants’ title, therefore, fails. 77.That brings us to the final issue: whether the reliefs granted by the learned Judge, particularly those founded on trespass and damages, were justified. 78.The Appellants argued that the learned Judge’s judgment was internally contradictory. Their submission was that having found that the deceased’s interest in the suit property had not crystallised into full proprietary ownership, the court could not logically grant relief grounded in trespass and damages. 79.That argument has some superficial attraction but does not withstand closer scrutiny. Its central premise is that only full legal ownership can sustain a claim in trespass. That is not the law. Trespass protects possession and, in appropriate cases, the immediate right to possession. As this Court stated in M’Mukanya v M’Mbui [1984] KLR 761, trespass is actionable at the suit of a person in possession or entitled to possession. Registered title is, therefore, not invariably necessary. 80.That principle is directly applicable here. The learned Judge found, and we agree, that the deceased allotted the suit property, developed it, and occupied it, and that neither he nor his estate was lawfully divested of that interest. Those findings were sufficient to establish a protectable possessory interest. In our view, the learned Judge’s observation that ownership had not “crystallised” should not be understood as meaning that the deceased lacked any legally protectable interest. Read holistically, the judgment recognised a beneficial and possessory interest that continued to subsist unless lawfully extinguished. 81.Seen in that light, the alleged inconsistency in the judgment largely disappears. The 1st Respondent’s claim succeeded not because the estate proved perfected title, but because it established a superior possessory interest that had not been lawfully extinguished. We, therefore, see no basis to disturb the finding that the Appellants’ occupation, being rooted in an unlawful reallocation, constituted actionable trespass against the 1st Respondent’s superior possessory claim. 82.We must, however, observe that having correctly found that the deceased’s estate retained a protectable possessory interest and that the Appellants’ occupation amounted to unlawful intrusion, the learned Judge fell into error in concluding that damages for trespass were unavailable merely because legal title had not crystallised. On the facts as found, an award of damages for trespass would in principle have been available. However, since the 1st Respondent did not file a cross-appeal challenging the learned Judge’s refusal to award damages for trespass, the matter does not properly arise for determination before us beyond stating the correct legal position. 83.The claim for loss of user stands on a different footing. Unlike general damages for trespass, loss of user is a claim for quantifiable pecuniary loss. In the circumstances of this case, where the claim was specifically premised on alleged rental income from structures erected on the suit property, it constituted a species of special damages. 84.The law is settled that special damages must not only be specifically pleaded but must also be strictly proved. The 1st Respondent’s case was that the deceased had constructed two rental rooms on the suit property, each generating approximately Kshs. 4,000 per month, and that rental income was lost following the Appellants’ entry onto the property. These were precise factual assertions capable of proof through straightforward evidence such as rent receipts, tenancy agreements, rent schedules, M-Pesa statements, tenant testimony, photographs, or comparable documentary material. 85.None of that evidence was produced. The claim for rental income, therefore, remained unproved. While the learned Judge appreciated the evidentiary deficiencies in the 1st Respondent’s case, she nonetheless proceeded to award Kshs. 62,600 under that head as a reasonable estimate of loss. With respect, we are unable to agree with that approach. Once the court found that the evidentiary foundation for the claimed rental income was absent, there remained no principled basis upon which to quantify the alleged loss without descending into speculation. 86.In our view, the award of Kshs. 62,600 for loss of user was, therefore, not supported by evidence and constituted an error in principle. We consequently interfere with that award and set it aside in its entirety. 87.We take a similar view regarding the award of aggravated damages in the sum of Kshs. 500,000 against the 2nd Respondent. Awards of aggravated or exemplary damages are exceptional and are generally reserved for conduct that is oppressive, arbitrary, unconstitutional, high-handed, malicious, or calculated to yield profit exceeding the compensation payable. 88.While we have found that the 2nd Respondent failed to demonstrate lawful repossession and that the subsequent reallocation of the suit property was unlawful, the circumstances of this case do not, in our view, justify such exceptional relief. The record does not disclose targeted malice, spite, or contumelious conduct directed at the 1st Respondent. Equally relevant is the fact that the deceased himself did not perfect his interest in the suit property. 89.In those circumstances, although the 2nd Respondent acted unlawfully in repossessing and reallocating the property without due process, we are not persuaded that its conduct rose to the level of oppressiveness or malice necessary to justify an award of aggravated damages. The learned Judge, therefore, fell into error in awarding such damages. 90.We accordingly set aside the award of Kshs. 500,000 made in favour of the 1st Respondent under the head of aggravated damages. 91.The upshot of our analysis is that this appeal succeeds only in part. We agree with the learned Judge that the 2nd Respondent failed to demonstrate that the suit property was lawfully repossessed from the deceased or his estate before its purported reallocation to the Appellants. It follows that the reallocation to the Appellants was unlawful and incapable of conferring upon them a superior legal interest in the suit property. We are equally satisfied that the 1st Respondent established a superior possessory interest capable of sustaining the claim in trespass and the consequential orders for recovery of possession. 92.Accordingly, we find no basis for interfering with the learned Judge’s findings declaring the repossession and reallocation unlawful, or with the orders requiring the Appellants to vacate the suit property and remove the structures erected thereon. 93.We, however, reach a different conclusion with respect to the awards made under the heads of loss of user and aggravated damages. For the reasons we have given, the award of Kshs. 62,600 for loss of user was not specifically proved and, therefore, cannot stand. Likewise, the award of Kshs. 500,000 under the head of aggravated damages was not justified on the facts and must also be set aside. 94.In the result, the appeal is dismissed except to the limited extent that the awards of Kshs. 62,600 for loss of user and Kshs. 500,000 for aggravated damages are hereby set aside. 95.Given the partial success of the appeal, we make no order as to costs. 96.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY, 2026.P. O. KIAGE………………………………JUDGE OF APPEALF. TUIYOTT……………………JUDGE OF APPEALJOEL NGUGI……………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR