https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1608

Co-operative Management Committee of Emparnat Farmers Dairy Co-operative Society Ltd v Kelempu (Civil Appeal W147 of 2021) [2026] KECA 1608 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1608 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal W147 of 2021 W Karanja, A Ali-Aroni & LM Njuguna, JJA July 31, 2026 Between The Co-operative Management Committee of Emparnat Farmers Dairy Co-operative Society Limited Appellant and Joseph Tobiko Kelempu Respondent (Being an appeal against the judgment/decree of the Environment and Land Court at Kajiado (Christine Ochieng, J) dated 20th January, 2021 in ELC Appeal Case No. 14 of 2019) Judgment 1.In this second appeal, the appellant, the Cooperative Management Committee of Emparnat Farmers Dairy Cooperative Society Limited, is aggrieved by the judgment and decree of the Environment and Land Court at Kajiado (C. Ochieng, J) delivered on 20th January 2021, which was in favour of the respondent, Joseph Tobiko Kelempu. 2.The history of the litigation stems from a property dispute over the ownership and possession of Plots No. 1556 and 1557 at Business II Bissil Trading Center (hereinafter referred to as “the suit properties”). The case began in the Chief Magistrate’s Court in Kajiado, where the respondent filed Kajiado CMCC No. 89 of 2018, seeking a permanent injunction to restrain the appellant from trespassing on the plots, as well as an eviction order. The respondent based his claim on letters of allotment issued in 2005, supported by certificates of official search and evidence of land rates and rent payments to the County Government of Kajiado. 3.On its part, the appellant contended that the land had been lawfully repossessed by the County Government of Kajiado due to the respondent’s failure to develop the plots, and subsequently reallocated to it in July 2016 for the construction of a dairy plant. 4.By a judgment delivered on 27th June 2019, the trial court dismissed the respondent’s suit, finding that the respondent had failed to demonstrate that the land occupied by the appellant was identical to his allotted plots and failing to join the County Government as a necessary party to explain if there was double allocation. 5.Dissatisfied with this outcome, the respondent appealed to the Environment and Land Court in Kajiado via ELC Appeal No. 14 of 2019. On 20th January 2021, (C. Ochieng, J.) allowed the appeal, setting aside the trial court decision. The learned Judge found that the respondent had valid allotment letters and the County Government continued to accept his rates, therefore, the land was not unalienated and available for reallocation to the appellant. 6.The appellant, being aggrieved by the decision of the ELC, now brings this second appeal before this court, raising seven grounds of appeal. That the learned Judge erred; in law in allowing the appeal and setting aside the trial court’s judgment, in finding that the appeal was merited, by holding that the respondent had an indefeasible title, by holding that the respondent had been allocated the appellant’s land, failing to hold that the County Government of Kajiado, being the allocating authority was supposed to have been enjoined as a party to the proceedings before the subordinate court, failing to consider the surveyors report as a crucial document establishing ownership of the suit land and, failing to consider the appellant’s submissions. 7.During the hearing of the appeal on 22nd April 2026, Mr. Ngaira appeared on behalf of the appellant, while the respondent was represented by Mr. Itaya. 8.Mr. Ngaira placed reliance on the appellant’s written submissions dated 25th February 2022 and focused his attention on ground 3 that the first appellate court erred in finding that the respondent had an indefeasible title. Counsel submitted that the Learned Judge erred by basing her decision on evidence that was not tendered before her. He submitted that the respondent was issued with a letter of allotment, which did not confer an indefeasible title upon the respondent. 9.It was the appellant’s case that certain terms needed to be met as per the letter of allotment, failing which the issuing authority had the right to revoke it. Counsel also submitted on ground 5 regarding the joinder of the County Government of Kajiado to the proceedings and faulted the learned Judge for failing to make a finding that the County Government ought to have been joined in the suit as the party that issued the letter of allotment. The appellant cited the case of Philemon L Wambia vs. Gaitano Lusista Mukofu & 2 Others [2019] eKLR for the submission that letters of allotment are not conclusive proof of ownership. 10.The appellant maintains that it is in lawful occupation of Plot No. 4s Bissil Trading Center, which was formally allocated to it by the County Government on 12th July 2016, following a formal application for a public utility site to host a dairy plant. 11.Mr. Itaya, for the respondent, opposed the appeal and placed reliance on the respondent's submissions dated 2nd April 2025. Counsel then proceeded to challenge the jurisdiction of the court to entertain the appeal, citing that the appellant had failed to indicate the legal underpinning of its appeal. Counsel further submitted that, unlike the appellant, the respondent had demonstrated that it had documents of title to the suit property in the form of a letter of allotment, and further demonstrated ownership by submitting receipts of land rates paid and official searches. On whether the County Government ought to have been joined, it was submitted that there was no reason to join them, as the property had already been lawfully allocated to the respondent and, therefore, could not have been re-allocated. 12.In rejoinder, Mr. Ngaira submitted that the learned Judge failed to re-evaluate the evidence tendered before the court. He further submitted that both the appellant and the respondent had letters of allotment, with the appellant having a letter of allotment specific to Plot No. 8. 13.This being a second appeal, our jurisdiction is limited to consideration of matters of law only. In Kenya Breweries Ltd vs. Godfrey Odoyo [2010] eKLR, Onyango Otieno, J. A expressed himself on this point as follows:“In a second appeal, however, such as this one before us, we have to resist the temptation of delving into matters of fact. This Court, in a second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered, or, looking at the entire decision, it is perverse 14.This Court is being called upon to determine whether the first appellate court correctly applied the law when it held that the suit properties were not unalienated and thus could not be reallocated to the appellant. This, in our view, is the most contentious issue in this appeal. 15.It is not in dispute that vide the letter dated 5th October 2005, the County Government of Kajiado allotted Plots No. 1556 and 1557 at Business II Bissil Trading Center to the respondent. The appellant’s position is that the respondent failed to fulfil Condition No. 2 in the letters of allotment, which resulted in the plots being repossessed and reallocated to it. 16.The learned Judge opined as follows:“The respondent, though, contended that it was the County Government that allocated them the land to sell milk, did not hold any letters of allotment nor an indication that they had been paying land rates and rent. To my mind, their evidence on the numbering of the plots as well as the size, including the fact that it had been a matatu terminus was contradictory. I note DW1 had even stated in her evidence that the appellant reported the matter of their occupying the suit plots to the County Land Management Board and County Minister for Lands and they were advised to stop developing it. In their submissions, the respondent claimed the appellant had failed to fulfil condition No. 2 in the Letter of Allotment, culminating in the plot being repossessed and allocated to them. However, she did produce any evidence that the suit plots were indeed repossessed, after which the same had been reallocated to them. I opine that if indeed the suit plots had been repossessed, then the County Government of Kajiado could not have still had the appellant’s name in their records and continued to receive the Land Rates and Rent from him. In DW1’s evidence, she intimated that it is the County Surveyor that showed them the plot but I opine that the said Surveyor could not have been the allotting authority.” 17.The learned Judge made observations, and correctly so in our view, that even though the appellant claimed that the County Government of Kajiado reallocated the suit properties to them, there was no evidence tendered to the effect that the respondent’s allocation of the plots had been cancelled. On the contrary, evidence tendered indicated that the County Government of Kajiado continued to receive land rates and rents from the respondent. 18.This Court, in Philemon L Wambia vs. Gaitano Lusitsa Mukofu & 2 Others (supra), expressed itself as follows:“From the foregoing statement, the trial court arrived at a finding of fact that the first allotment was to Mr. Joseph Muturi Muthurania… On our part, we have considered the evidence on record on the two letters of allotment. The evidence on record shows that the first allotment to the suit property was to Mr. Joseph Muturi Muthurania. In Benja Properties Limited v Syedna Mohammed Burhannudin Sahed & 4 others [2015] eKLR, this Court stated that an allotment of an interest in land is a transaction in rem attaching to and running with a specific parcel of land. In the instant case, the second letter of allotment to the appellant did not attach in rem to any land since there was no parcel upon which the allotment could attach. The first allotment to Mr. Joseph Muturi Muturania effectively made the suit property unavailable for allotment to the appellant the more when the first allottee had fulfilled the terms and conditions of the allotment.” 19.Similarly, in Swaleh Mohamed Waziri & 3 Others vs. Houd Mohmoud Athman & Another [2020] eKLR, this Court held that:“…an allottee having been allotted land by the Commissioner of Lands and duly paid all the stand premiums and other related charges, is considered to have acquired rights over such land, which thereafter rendered it unavailable for allocation to other persons or entities.” 20.Additionally, aside from the evidence tendered by DW1 that the plots allocated to the appellant were the same as the ones allocated to the respondent herein, documents tendered by the appellant do not speak to this. The letter dated 12th July 2016 and the survey report refer to Site 543 and Site 48. Even though the parties seemed to have a consensus that the documents spoke to the same properties. Be that as it may, can a second allotment be validly made where an earlier allotment had been made? This Court has on previous occasions found that in such a situation, the second allotment cannot stand. That was the position adopted in the case of Kenya Ihenya Company Limited & Another vs. Njeri Kiribi [2019] eKLR, where the court stated;“… it was clear that the 1st appellant had allotted the suit land to both the respondent and the 2nd appellant, hence the learned Judge’s conclusion that there was a double allocation. That being the case, since the respondent was first in time, as the evidence is clear that she completed making payments in the year 1983 whilst the 2nd appellant claimed to have purchased the same on 24th June, 1997, she was the bona fide proprietor.” 21.Based on the documents that were tendered before the learned Judge as well as the testimony of the witnesses, we are of the considered view that the learned Judge was fully justified in arriving at the conclusion that the suit properties were unavailable for reallocation. In the circumstances, we find no basis for faulting the Judge’s finding. Accordingly, we dismiss the appeal with costs to the respondent. 22.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY 2026.W. KARANJA……………………………JUDGE OF APPEALALI-ARONI……………………………JUDGE OF APPEALL. NJUGUNA……………………………JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR