Charo v Nzaro & 4 others (Civil Appeal E001 of 2023) [2026] KECA 84 (KLR)
The bottom line
#Long occupation of unallocated government land in Kenya gives you no ownership rights against a registered buyer who did proper due diligence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant was in occupation of the parcel of land comprised of plot Nos. 83 and 84 as the rightful owner long before the Project
- 2.Whether the 1st to 3rd respondents subdivided and hived off a portion of the appellant's land and allocated it to the 4th respondent
- 3.Whether the 5th respondent was a bona fide purchaser for value of plot No. 83
- 4.Whether the 5th respondent was entitled to the reliefs sought in his counterclaim
Key legal issues
#Whether occupation of unalienated government land since 1978, based on purchase of cashew nut trees, conferred ownership
No - the sale of trees conferred at best tenure over the trees, not ownership of the land; the occupier was a squatter on unalienated government land with no enforceable rights
The 1978 sale agreement referred to no parcel of land, specified no location or area, and did not convey possessory rights over land. The suit property was unalienated government land; title could arise only through survey, subdivision, alienation, allotment and registration. Occupation and development occurred at the occupier's own peril and cannot support a challenge to a subsequent allocation. The appellant's rights arose only from allocation of plot No. 84 by the upgrading project.
Whether plot No. 83 was hived off the appellant's plot No. 84
No - both plots were created at the same time from the subdivision of a parcel previously allocated to Maendeleo Ya Wanawake in 1991
The evidence showed the land measuring 0.2226 Ha was allotted to Maendeleo Ya Wanawake in 1991 and subdivided in 2002 into plot Nos. 81, 82, 83, 84, 87 and 514. Plot Nos. 83 and 84 were therefore created contemporaneously, not one from the other. The appellant recognized the project's mandate from 2003, made payments, and obtained a clearance certificate for plot No. KB/84.
Whether the 5th respondent was a bona fide purchaser for value of plot No. 83 and entitled to counterclaim reliefs
Yes - he purchased from the registered allottee under the project's procedures, paid Kshs 1.6 million, obtained the project's approval, transfer fees and clearance certificate, without notice of any dispute
The sale agreement, bank transfer, receipts for transfer and dispute-resolution fees, clearance certificate and project register listing him as owner corroborated his purchase. The appellant adduced nothing beyond mere denials. Having demonstrated bona fide purchaser status, he was entitled to the permanent injunction sought in his counterclaim.
The scope of the Court's mandate on a first appeal
A first appeal is by way of retrial: the court re-evaluates evidence and draws its own conclusions, subject to caution and due allowance for not having seen or heard the witnesses
Citing Ng'ati Farmers, Kenya Ports Authority v Kuston and Peters v Sunday Post, the court restated that it is not bound by the trial judge's factual findings but will interfere with caution, particularly where demeanour-based findings or material circumstances are at stake.
Legal principles established
#- Mere sale of trees on, occupation and development of unalienated government land confers no title; until survey, subdivision, alienation, allotment and registration, no enforceable property rights arise and the occupier cannot challenge the title of a subsequent registered proprietor.
- On a first appeal the Court of Appeal must reconsider and evaluate the evidence itself and draw its own conclusions, while making due allowance for having neither seen nor heard the witnesses.
- A party claiming to be a bona fide purchaser for value must prove acquisition of a valid and legal title, due diligence to determine the lawful owner, and payment of valuable consideration.
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- 2.The judgment and decree of the ELC (J. O. Olola, J.) dated 22nd January 2021 is upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court (ELC)
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal (re-trial of the ELC suit) under Article 164(1) of the Constitution and the Appellate Jurisdiction Act
Relief refused
#Declaration that the subdivision creating plot No. 83 was null and void; injunctions against subdivision, trespass and sale; vacant possession and demolition/eviction
The appeal had no merit: plot No. 83 was not hived off plot No. 84, the appellant held no enforceable property rights over unalienated government land, and the 5th respondent was a bona fide purchaser for value
Costs
Appeal dismissed with costs to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
mere sale and purchase of trees on an unalienated land, occupation and development thereof did not by any means confer title to such land unless and until the land is surveyed, subdivided, alienated and allotted with a view to registration in the respective names of the allottees.
Before then, the suit property remained unidentifiable, unregistered and incapable of being the subject of any property rights enforceable at law.
It is immaterial that the appellant took possession of the cashew nut trees and occupied the unalienated suit property as early as 1978. Doing so did not arm her with the right to challenge the title of a subsequent registered proprietor thereof.
Having carefully considered the record of appeal, the grounds on which it is anchored, the rival submissions, the cited authorities and the law, we reach the inescapable conclusion that the appeal has no merit and is hereby dismissed with costs to the respondents.
Consequently, the judgment and decree of the ELC (J. O. Olola, J.) dated 22nd January 2021 be and is hereby upheld. Orders accordingly.
Issues in the judgment
#The land allocated to Maendeleo Ya Wanawake is given as 0.2262 Hectares in the defence summary but as 0.2226 Ha in the trial judgment extracts and again later in this judgment - an internal inconsistency in the record
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charo v Nzaro & 4 others (Civil Appeal E001 of 2023) [2026] KECA 84 (KLR)", Case Analysis (2026). Court of Appeal at Mombasa - Civil Appeal (memorandum of appeal dated 4th January 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/84/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.