Afrison Export Import Ltd & another v National Land Commission & 9 others (Civil Appeal 303 of 2019) [2026] KECA 1257 (KLR)
The bottom line
#Kenya's Court of Appeal ruled land surrendered for schools becomes public land, so the owners' Kshs. 1.5 billion compensation claim fails.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to entertain this appeal
- 2.Whether the requirement to surrender land free of cost as a condition for subdivision approval was inconsistent with section 75 of the repealed Constitution
- 3.Whether there was a valid and lawful surrender to the Government of the portions of land occupied by the schools
- 4.Whether the subsequent compulsory acquisition and part payment of Kshs. 1.5 billion was lawful
- 5.What reliefs, if any, should the Court grant?
- 6.Who should bear the costs of the appeal?
Key legal issues
#Jurisdiction to hear an appeal from an advisory reference under section 127 of the Land Act
The appeal was properly before the Court; there was a decree on record adversely affecting the appellants, and section 16 of the Environment and Land Court Act confers a right of appeal against any judgment, order or decree of the ELC. Respondents who failed to move to strike out the appeal in time lost that right.
The 9th respondent argued that an advisory under section 127 is not an enforceable decree, so leave was required. The Court held that the ELC's advisory contained a decree affirming the appellants were not entitled to compensation and declaring the part payment a loss of public funds, thereby adversely affecting them. Section 16 of the Environment and Land Court Act expressly permits appeals against any judgment, order or decree. Further, since no striking-out application was brought under rule 86(a) within the prescribed period, the objection came too late.
Whether the constitutionality of the free-cost surrender condition could be raised on appeal
No. The issue of unconstitutionality under section 75 of the repealed Constitution was not pleaded before the ELC, not raised in the issues framed there, and not included in the memorandum of appeal; it therefore could not be entertained on appeal.
Guided by Supreme Court authority in Mahamud vs. Mohamad and Republic vs. Joshua Gichuki Mwangi, the Court reiterated that an issue not taken before the court below does not fall for determination on appeal. The reference issues framed by the NLC did not include constitutionality, Mr. Mburu's affidavit contained no such averment, and the memorandum of appeal omitted it. The ELC could not be faulted for failing to consider an issue never placed before it.
Whether there was a valid and lawful surrender of the school plots
Yes. The Court affirmed the ELC's finding of a valid surrender: despite the 5th April 1984 purported cancellation, the appellants and their agent continued engaging the authorities, wrote a letter of 4th July 1984 surrendering the public utility plots, implemented the subdivision on the ground, and stood by while the schools operated for over thirty years.
Applying the first-appeal duty of re-evaluation and the caution against disturbing trial court findings absent error, the Court examined the post-1984 correspondence: the 4th July 1984 surrender letter, the 20th February 1985 letter to Bedan Mbugua, the 1985 approval of the subdivision, the 1999 allotment, and the schools' establishment. A de facto surrender is valid per Mwinyi Hamisi Ali; surrender is consensual per Fanikiwa; and once surrendered there is no reversion per Town Council of Awendo and Ngimu Farm. Estoppel and approbation/reprobation preclude the appellants from denying the surrender.
Lawfulness of the compulsory acquisition and part payment of Kshs. 1.5 billion
The acquisition was without legal foundation and the payment of Kshs. 1.5 billion was illegal, null and void, being money paid under a mistake of law and fact, since the land was already public.
Having found the school sites were surrendered and thus public land, the NLC had no legal basis to compulsorily acquire them. Eminent domain applies only to the taking of private property; the State cannot acquire what it already owns. The payment therefore constituted a loss of public funds recoverable in law.
Functus officio objection based on prior judicial determinations
The objection failed because it was not raised before the trial court and was not determined by it; a bare averment that other cases were pending could not sustain the defence.
The record showed the appellants never raised functus officio before the ELC; Mr. Mburu only deposed that other disputes over the land were ongoing, which the appellants conceded. The issue was also absent from submissions and from the ELC's determination. Citing the principle barring appellate courts from entertaining issues not raised below, the Court held the issue fell by the wayside.
Legal principles established
#- Registration is not the only way to effectuate a surrender; a de facto surrender of land to the Government is valid notwithstanding the absence of a registered instrument.
- Once land is surrendered to the Government, there is no turning back; the surrenderee retains no reversionary interest.
- Compulsory acquisition (eminent domain) applies only to private property; the State cannot compulsorily acquire land it already owns.
- An appellate court will not determine an issue not pleaded or raised before the trial court.
- An appeal lies from the ELC against any judgment, order or decree, including an advisory issued on a reference under sections 127 and 128 of the Land Act where a decree adversely affecting a party exists.
- A party cannot approbate and reprobate; having accepted the benefit of a subdivision approval, an owner is bound by the correlative condition of surrender.
Court orders
#- 1.The appeal is dismissed
- 2.The opinion of the Environment and Land Court is upheld
- 3.The parties will meet their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Reference dated 2nd August 2018 under sections 127 and 128 of the Land Act, 2012
- Jurisdiction invoked
- Section 16 of the Environment and Land Court Act (appeals from the ELC to the Court of Appeal)
Relief refused
#Declaration that L.R. 7879/4 is an indefeasible title of private land registered in the names of the appellants
The Court found a valid de facto surrender of the school plots had occurred; the appeal lacked merit
Declaration that the portions occupied by the two schools were never surrendered to the Government
Correspondence after the purported 1984 cancellation and the implemented subdivision scheme demonstrated an unequivocal surrender
Declaration of entitlement to the balance of compensation of Kshs. 1,769,040,600
The land was public by virtue of surrender; the State cannot acquire what it already owns, so the acquisition and part payment were unlawful
Costs
The parties will meet their own costs of the appeal (each party to bear their own costs)
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.
In the end, upon re-evaluating the evidence and the law, we find the ELC’s opinion to be sound, and we uphold it. Consequently, we find the appeal to be without merit and dismiss it. The parties will meet their own costs of the appeal.
The doctrine of eminent domain only applies where the State initiates the taking of private property for public use. The State cannot acquire what it already owns. The purported acquisition was, therefore, without legal foundation.
The answer to this argument is that registration is not the only way to efiectuate a surrender.
Once a person surrenders land to the Government, there is no turning back.
They cannot now approbate and reprobate by denying the correlative condition of that approval, namely, the surrender of the sites for the schools. Equity will not permit a party to blow hot and cold.
In order for an appellate court to reach a difierent finding from that of a trial court, it must be demonstrated that the decision of the trial court contains errors of law, evidentiary or procedural errors, abuse of discretion, or is not supported by the evidence on record so that it can be said to be manifestly unreasonable.
Issues in the judgment
#The memorandum of appeal grounds contain duplicated numbering (two grounds numbered 'ii' and two numbered 'xi')
The judgment variously dates the letter halting the subdivision application as 5th April 1984 and, in one passage, refers to a letter 'dated 5th April 1994'
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Abdi Afadimo SHG Through the Chairman, Ali Abduba Abdi v Qabale & 6 others (Environment and Land Appeal E031 of 2025) [2026] KEELC 4782 (KLR)[2026] KEELC 4782 (KLR)23 Jul 2026
- Abdi Afadimo SHG Through the Chairman, Ali Abduba Abdi v Qabale & 6 others (Environment and Land Appeal E031 of 2025) [2026] KEELC 4782 (KLR)[2026] KEELC 4782 (KLR)23 Jul 2026applied
- Dambala v Jirma (Environment and Land Appeal E004 of 2025) [2026] KEELC 4656 (KLR)[2026] KEELC 4656 (KLR)22 Jul 2026applied
- Muthuri v M’Mbui (Environment and Land Appeal E022 of 2025) [2026] KEELC 4785 (KLR)[2026] KEELC 4785 (KLR)13 Jul 2026applied
Cite this brief
#Cite this brief
Caselaw, "Afrison Export Import Ltd & another v National Land Commission & 9 others (Civil Appeal 303 of 2019) [2026] KECA 1257 (KLR)", Case Analysis (2026). Court of Appeal Appeal arising from the ELC reference dated 2nd August 2018 (memorandum of appeal dated 5th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1257/eng@2026-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.