Odero & 2 others v Nyunja & 4 others (Environment and Land Appeal E022 & E032 of 2023 (Consolidated)) [2026] KEELC 3075 (KLR)
The bottom line
#The Environment and Land Court in Kisumu confirmed the original allotment of a Migosi plot wins, and ordered the vendor to refund Kshs 1.44 million.
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 Appellants in the first appeal proved their case against the Respondents in that appeal and were entitled to the reliefs sought in their amended plaint in the lower court
- 2.Whether the lower court erred in failing to make an order for the refund by the Appellant in the second appeal to the Appellants in the first appeal of the purchase price paid, together with penalties and interest
- 3.Whether the lower court erred in condemning the Appellants in the first appeal and the Appellant in the second appeal to pay the costs of the suit to the 1st Respondent in both appeals
- 4.Whether Plot No. 1-137(80) and Plot No. 80 Migosi Phase II were two separate and distinct parcels of land
Key legal issues
#Whether the two plot descriptions (Plot No. 1-137(80) and Plot No. 80 Migosi Phase II) referred to the same parcel of land
The court found that the various plot numbers were used interchangeably by the Council to refer to one unsurveyed parcel, and the parties were claiming the same land.
The land had no title and was unsurveyed, so differing measurements were estimates. The court traced the documentary history: the land sold by Nyamango to Ouko as Plot No. 1-137 was the same land allotted to Ouko by the Commissioner of Lands as unsurveyed Plot No. 80 Migosi S.S.S. The measurement of 0.0216 hectares in the Nyamango-Ouko agreement was not materially different from the 0.0210 hectares in the second appeal Appellant's allotment letter. Both claimants therefore asserted rights over the same parcel.
Whether the 1st Respondent or the Appellants in the first appeal lawfully acquired the suit property from the Council
The 1st Respondent had a valid claim of ownership traceable without a break to the Council; the subsequent reallocation to the Appellant in the second appeal was invalid because the first allotment to Ouko had never been cancelled.
Nyamango was allotted the land in 1986, sold it to Ouko in 1995 with the Council's clearance, and Ouko received a letter of allotment from the Commissioner of Lands on 22nd March 1996 and paid the requisite charges. The Council's purported 2010 'repossession' was ineffective because the land was no longer subject to the Nyamango allotment but to the new Commissioner of Lands allotment. The reallocation to the Appellant in the second appeal conferred no valid proprietary interest capable of transfer to the Appellants in the first appeal.
Whether the Appellants in the first appeal were entitled to a refund of the purchase price, penalty and interest from the Appellant in the second appeal
The refund of Kshs. 1,440,000/- was warranted on total failure of consideration, but the 20% penalty was refused and interest was awarded only from the expiry of 60 days from the judgment.
The vendor sold property he did not lawfully own and could pass neither good title nor possession, amounting to total failure of consideration; refusing a refund would unjustly enrich him. However, the court found he honestly believed he had valid title and did not intend to defraud or breach the agreement, so it was inequitable to impose the contractual 20% penalty. Interest was limited to the period after 60 days from judgment rather than running from the date of purchase.
Whether the lower court erred on costs
The lower court did not err in awarding costs to the 1st Respondent against the plaintiffs whose suit was dismissed, but erred in ordering the second Appellant to pay costs to a co-defendant without reasons, and erred in exonerating the County Government, the author of the dispute.
Costs follow the event and are discretionary, to be exercised judicially in accordance with reason and justice. Dismissing the plaintiffs' suit justified the costs order in the 1st Respondent's favour. But no reason was given for making a co-defendant pay the 1st Respondent's costs. Had the Council exercised due diligence the dispute would not have arisen, so the County Government should have borne the costs of the suit rather than being exonerated.
Legal principles established
#- On a first appeal, the court must reconsider and re-evaluate the evidence on record and draw its own conclusions, while making due allowance for not having seen or heard the witnesses
- Where there is a double allocation of land, the first allotment prevails; land already validly allotted cannot be reallocated unless the first allocation is validly cancelled
- Where a vendor sells land not lawfully his and cannot pass good title or possession, there is a total failure of consideration and he must refund the purchase price or be unjustly enriched
- A title upheld in a contest between competing titles over the same land is the one that conforms to procedure and traces its root without a break in the chain
Court orders
#- 1.Judgment entered for Barrack Omondi Odero and Isabella Achieng Olwenyo against Nelson Odhiambo Ochungo in the sum of Kshs. 1,440,000/- with interest at court rates from the expiry of 60 days from the date of judgment until payment in full
- 2.The costs of the lower court suit to be paid to the Appellants in ELCA No. E022 of 2023 and to the 1st Respondent, Mary Obondo Nyunja, by the County Government of Kisumu
- 3.The lower court order on costs against the Appellants in ELCA No. E022 of 2023 and the Appellant in ELCA No. E032 of 2023 set aside
- 4.The Appellants in ELCA No. E022 of 2023 to have the costs of the appeal, to be paid by the County Government of Kisumu
- 5.The Appellant in ELCA No. E032 of 2023 and the 1st Respondent in both appeals to bear their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Kisumu (Kisumu CMCC ELC No. 68 of 2020)
- Kisumu CMCC ELC No. 68 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the magistrate's court under the Environment and Land Court Act
- Consolidated with
- ELCA No. E032 of 2023
Relief refused
#Declaration that the Appellants in the first appeal were the bona fide owners of the suit property, permanent injunction against the 1st Respondent, and general damages for trespass
The 1st Respondent lawfully acquired the property from the Council through a chain traceable to the first allotment; she could not trespass on her own land
Penalty of 20% of the purchase price (Kshs. 288,000/-) for breach of the sale agreement
The vendor honestly believed he had valid title and did not intentionally breach the agreement; ordering the penalty would be inequitable
Interest on the refund from 2nd December 2016
Interest was awarded only from the expiry of 60 days from the date of the judgment, not from the date of purchase
Costs
Costs of the lower court suit to be paid to the Appellants in ELCA No. E022 of 2023 and to the 1st Respondent by the County Government of Kisumu; lower court costs order against the Appellants set aside; Appellants in ELCA No. E022 of 2023 to have costs of the appeal paid by the County Government; the Appellant in ELCA No. E032 of 2023 and the 1st Respondent shall bear their own costs of the appeal.
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 would therefore vary the judgment delivered on 26th May 2023 by Hon. K.Cheruiyot, SPM, and make the following orders;
Judgment is entered for Barrack Omondi Odero and Isabella Achieng Olwenyo, the Appellants in ELCA No. E022 OF 2023, against Nelson Odhiambo Ochungo, the 2nd Respondent in the appeal in the sum of Kshs. 1,440,000/- together with interest at court rates from the expiry of 60 days from the date of this judgment until payment in full.
The lower court order on costs against the Appellants in ELCA No. E022 of 2023, Barrack Omondi Odero and Isabella Achieng Olwenyo, and the Appellant in ELCA No. E032 of 2023, Nelson Odhiambo Ochungo is set aside.
where land has been allocated, the same land cannot be reallocated unless the first allocation is validly and lawfully cancelled
In the circumstances, there was a total failure of consideration for which the Appellants in the first appeal paid the purchase price of Kshs. 1,440,000/-.
It would be inequitable to order him to pay a penalty for breach of the said agreement in the circumstances.
This being a first appeal, this court has to reconsider and re-evaluate the evidence on record and draw its conclusions on the issues that were raised for determination before the lower court.
Issues in the judgment
#The date of the sale agreement is inconsistently stated: paragraph 2 and paragraph 17 refer to a sale agreement dated 23rd December 2016 / December 2016, but paragraph 40 refers to 'the agreement for sale dated 23rd November 2016'.
The penalty computation in the submissions is internally inconsistent: '20% of Kshs. 1,400,000/-' is stated as Kshs. 288,000/-, whereas 20% of Kshs. 1,440,000/- would be Kshs. 288,000/-.
The amended plaint is inconsistently dated: paragraph 1 says the plaint 'was later amended on 22nd February 2021' while the memorandum of appeal refers to 'the amended plaint dated 18th February 2021'.
The judgment is dated 'WRITTEN AND SIGNED AT NAIROBI' by S. Okong'o, J, and 'DELIVERED, DATED AND COUNTERSIGNED AT KISUMU' on 21st May 2026 by E. Asati, J, with no explanation of the signature/delivery arrangement; the date 21st May 2026 postdates the memoranda of appeal and submissions of 2023-2025.
Paragraph 16 refers to 'The Appellants in the second appeal' where the context clearly concerns the Appellants in the first appeal, an apparent drafting error.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odero & 2 others v Nyunja & 4 others (Environment and Land Appeal E022 & E032 of 2023 (Consolidated)) [2026] KEELC 3075 (KLR)", Case Analysis (2026). ELCA No. E022 of 2023 and ELCA No. E032 of 2023 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3075/eng@2026-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.