Godana v Fakir (Environment and Land Appeal E0027 of 2024) [2025] KEELC 5173 (KLR)
The bottom line
#The Environment and Land Court in Isiolo dismissed an appeal over Isiolo Township Block 4/47, confirming the registered owner's title and the appellant's defective documents.
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 respondent duly established and proved his entitlement to the suit property or otherwise
- 2.whether the appellant demonstrated and or proved any lawful rights to the suit property or otherwise
- 3.whether the appellant's counterclaim was determined by the trial court or otherwise
Key legal issues
#Whether the respondent proved ownership of Isiolo Township Block 4/47
The respondent proved a good root of title and unbroken chain through the allotment process culminating in a certificate of lease issued to Fakir Ali Jamal Mulji (deceased)
The suit property was formerly trust land administered by the defunct Isiolo County Council; an applicant's recommendation was escalated to the Commissioner of Lands for allotment under section 53 of the repealed Trust Land Act. The respondent tendered the gazette notice, certified council minutes, receipts, letter of allotment, registry index map amendment and certificate of lease, and the land registrar confirmed the conversion from LR No. 7918/9. This satisfied the good-root-of-title principles in Mas Construction Limited v Sheikh.
Whether the appellant proved a lawful allocation of the suit property to his father, Mohamed Godana (deceased)
No; the 1998 letter of allotment and supporting documents were defective, uncertified and did not reference the suit property
The allotment letter did not name the issuing council, plan number or authorising minutes; there was no acceptance letter or evidence of payment of stand premium, so the allotment, if lawful, stood extinguished. The part development plan bore a Nairobi number, the council minutes were uncertified and inadmissible under section 80 of the Evidence Act, and the documents referenced an unsurveyed commercial plot B Isiolo rather than the suit plot.
Whether the appellant's counterclaim for adverse possession was determined and, if not, whether it should have succeeded
The trial court did determine the counterclaim by finding it unsubstantiated; in any event it failed on the evidence and was legally incompetent alongside a claim of ownership
The appellant produced no evidence of occupation, possession and use for the statutory duration as required by Mbira v Gachuhi and related authorities. Further, adverse possession is inconsistent with a claim of lawful allotment, per Richard Wefwafwa Songoi v Ben Munyifwa Songoi. The counterclaim also lacked the verifying affidavit required by Order 7 Rule 5 and Order 4 Rules 1 and 2 of the Civil Procedure Rules 2010.
Whether the suit was incompetent for not being brought against the estate of Mohamed Godana
The suit was properly brought against the appellant personally as an alleged trespasser
The respondent's case was that the appellant had trespassed and had no rights to the suit property; the appellant was therefore sued in his personal capacity and not as administrator of the deceased's estate. The reliance on Virginia Edith Wambui Otieno v Joash Ochieng Ougo was misplaced because the claim was not directed at the deceased's estate.
Legal principles established
#- A first appellate court must subject the entire evidence to a fresh and exhaustive examination but interfere with trial court findings only where they rest on no evidence, a misapprehension of the evidence, perversity or demonstrable error of principle
- An uncertified letter of allotment without acceptance and payment of stand premium within the prescribed timeline stands extinguished and confers no title
- Public documents may only be proved by the original or a certified copy under sections 80 and 81 of the Evidence Act; uncertified minutes are inadmissible
- A claim for adverse possession cannot be advanced simultaneously with a claim of lawful ownership of the same land
- The burden of proof lies on the party asserting rights, as prescribed by sections 108 and 109 of the Evidence Act
Court orders
#- 1.The Appeal be and is hereby dismissed.
- 2.The Judgment and consequential decree of the learned trial magistrate dated 8th November 2024 be and is hereby affirmed.
- 3.Cost of the Appeal be and are hereby awarded to the respondent.
- 4.The costs in terms of clause (iii) shall be agreed upon and in default same shall be taxed by the Deputy Registrar of the court.
- 5.The orders of stay of execution which were issued by the subordinate court are hereby discharged.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Subordinate court (magistrates' court)
- not stated in the judgment text
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's decision (appeal against judgment and decree of 8th November 2024)
Relief refused
#Allowance of the appeal and setting aside of the trial court's judgment and decree
The appellant failed to discharge the burden of proof; his documents were devoid of probative value and did not reference the suit property
Declaration of ownership by adverse possession via the counterclaim
No evidence of occupation for the statutory duration and an adverse possession claim cannot coexist with a claim of lawful ownership; counterclaim also lacked a verifying affidavit
Costs
Costs of the Appeal awarded to the respondent; to be agreed and in default taxed by the Deputy Registrar of the court.
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.
I come to the conclusion that the appeal before hand is bereft of merit.
The Appeal be and is hereby dismissed.
The Judgment and consequential decree of the learned trial magistrate dated 8th November 2024 be and is hereby afirmed.
The orders of stay of execution which were issued by the subordinate court are hereby discharged.
Cost of the Appeal be and are hereby awarded to the respondent.
it is evident that the counterclaim was dismissed
a claim for adverse possession cannot be canvassed simultaneously with a claim for ownership of land
It was not enough for the appellant to just throw and brandish documents devoid of probative value and thereafter imagine that same would beneft from the jurisdiction of the court.
Issues in the judgment
#The judgment does not state the case number of the appeal or of the suit in the subordinate court
The deceased allottee's name is rendered inconsistently within the judgment (Mulji, Mulij, Murji)
The deceased rival allottee's name appears variably as Godana and Gordana
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Godana v Fakir (Environment and Land Appeal E0027 of 2024) [2025] KEELC 5173 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5173/eng@2025-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.