This appeal arises from the judgment of Hon J.B Kalo (CM) delivered on 7th July, 2023 in MC ELC CASE NO 187 of 2019. The Appellants being aggrieved by the entire judgment lodged a Memorandum of Appeal dated 3rd August, 2023 and listed the following eleven grounds of Appeal:
1) The Learned trial Magistrate erred in law and in fact in concluding and making a finding that the 1st Respondent had proved his case as against the Appellant without sufficient evidence and in toto disregard to material evidence tendered.
2) The Learned trial Magistrate erred in law and in fact in holding that the entire suit property described as Plot Number 173 belonged to the 1st Respondent contrary to his own evidence tendered by PW1 to the effect that the said plot had been subdivided to create a new triangular plot with a different plot number way back in 2009 long before the purported sale in 2012.
3) The Learned trial Magistrate erred in law and in relying on a Sale Agreement which was suspect and whose main term and condition clearly provided that the property was sold with vacant possession and that any trespassers were to be evicted by the Vendor, one Joseph Nyawa Bengoa. The remedy for vacant possession as instituted was not available to the 1st Respondent.
4) The Learned Magistrate erred in law and in finding for the 1st Respondent without crucial evidence of the purported Vendor who was the only party best placed to explain the actual plot and extent of the property sold to the 1st Respondent in spite of his whereabouts being known as residing in Voi.
5) The Learned Magistrate erred in law and in fact in failing to make an irresistible conclusion that failure on the part of the 1st Respondent to call the said vendor as a witness in spite of the importance of such evidence was because such evidence would have been deterimental to the 1st Respondent’s case. This position is further buttressed by the evidence of PW1 to the effect that the said Vendor may have been manipulated by the Appellant to hive off Plot Number 173 to create a new plot.
6) The Learned Magistrate erred in law in making a finding that the entire property belonged to the 1st Respondent contrary to his own evidence given by PW1 to the effect that the original Plot Number 173 had long been subdivided to create a new triangular plot with a different number.
7) The Learned Magistrate erred in law and in fact in dismissing the counterclaim on extraneous and technical grounds contrary to the established principals of law and the constitution requiring that courts be guided by justice and substance rather than form and procedure.
8) The Learned Magistrate erred in law and in fact in dismissing the Appellant’s evidence based on a minor issue of numbering in spite of the evidence that the whole property managed by the Shanzu Multi-Purpose Co-operative Society, the 2nd Respondent, was unsurveyed with numbers changing with each subdivision or transfer and where ownership was more on occupation than documentary.
9) The Learned Magistrate erred in law and in fact in making a finding that the suit property belonged to the 1st Respondent without evidence and on excuse that the ownership documents to the suit property were in possession of Joseph Nyawa Bengowa, the purported vendor but who was never summoned to give evidence or produce the said ownership documents.
10) The Learned Magistrate erred in law and in fact in holding that there was no sale agreement between the Appellant and one Jackson Arwaro Nyanumba, DW2, contrary to the evidence and documents submitted by the Appellant in his List of Documents.
11) The Learned Magistrate erred in law and in fact in shifting the burden of proof from the Respondent to the Appellant contrary to established principles of evidence thereby arriving at a wrong finding.
The Appellant sought the following orders from the court:
a. That this Appeal be allowed.
b. That the order dismissing the counterclaim be set aside and judgment be entered in favour of the Appellant as prayed in the counterclaim.
c. The costs of this Appeal be awarded to the Appellant.
The 1st Respondent had sued the Appellant in the lower court vide Plaint dated 6th April, 2018 and sought the following orders:
a. An order of eviction to issue against the 1st Defendant for the demolition, clearance and removal of all the illegal, unauthorized and unapproved structures constructed on Plot No, 173/3532 (original MN/1/2921/1) illegally and without the Plaintiff’s consent or authority at the 1st Defendant’s cost.
b. A Perpetual Injunction to issue against the 1st Defendant by himself or his wife, relatives, employees, agents, servants or his workers from trespassing, occupying or developing or building any structures whether permanent or not on the suit property at all times.
c. A Preservation Order by way of permanent injunction do issue restraining the 1st Defendant by himself or his wife or relatives, employees, agents, servants or his workers or any other person whomsoever and whatsoever from trespassing, occupying or developing or building any structures whether permanent or not on the suit property at all times, so as to secure the Plaintiff’s rights, interests and quiet enjoyment and possession of the suit property.
d. An Order of Mandatory injunction to issue against the 2nd and 3rd Defendants to proceed and halt or stop all the illegal activities being perpetuated by the 1st Defendant on the suit property and to ensure that any illegal and unapproved building and structures erected on this suit property are removed from the suit property and the 1st Defendant stopped from operating an illegal enterprise thereon in the name of a school or otherwise so as not to interfere with the Plaintiff’s proprietary rights, interests of ownership, user and possession thereon.
e. Costs.
The Appellant filed a Counter-claim dated 8th June, 2018 and amended on 11th June, 2019 and sought the following orders from the lower court:
a. An injunction restraining the Plaintiff, his agents and/or servants from further demolishing, trespassing, evicting, or in any other manner interfering with the 1st Defendant’s quiet enjoyment of the suit property plot number Plot No, 205B being part of larger plot No 3532 Original Number 2921/1 of Section 1 Mainland North Mombasa, Under Shanzu Wayani Corporation Society.
b. Special damages Ksh 292,320/=
c. Aggravated damages and/or punitive damages.
d. Costs of this suit.
e. Interest on (b) (c) and (d) above at court rates.
The trial court in it’s judgment dated 7th July 2023 entered Judgment for the 1St Respondent against the Appellant and 2nd Respondent in the following terms:
a. An order of eviction is hereby issued against the 1st defendant to demolish, clear and remove all structures that he has constructed on Plot No. 173/3532 (Original MN/1/2921/1),
b. A perpetual injunction is hereby issued restraining the 1st defendant by himself or his wife, relatives, employees, agents, servants or workers from trespassing, occupying or developing or building any structures whether permanent or not on Plot No 173/3532 (Original MN/1/2921/1) at all times.
c. The plaintiff shall have costs of the suit to be borne by the 1st Defendant and which shall attract interest seven days from the date of extraction of the certificate of costs until payment in full.
d. The 1st Defendants Counter-claim against the plaintiff is dismissed with costs to the plaintiff.
e. The suit against the 2nd and 3rd defendants is dismissed with no orders as to costs.
APPELLANT’S SUBMSSIONS
Counsel for the Appellant filed submissions dated 7th April, 2026 and identified the following issues for determination:
a. Whether the 1st Respondent proved that he was the lawful owner of the suit property?
b. Whether the 1st Respondent proved that the Appellant encroached into the suit property?
c. Whether the Appellant proved ownership of the plot he occupies?
d. What is the implication of the Appellant’s counterclaim?
It was counsel’s submission that the 1st Respondent failed to establish ownership of the suit property. Counsel submitted that even if this Honourable Court would find that the 1st Respondent had established ownership of the suit property, he failed to show that he was aware of the boundaries or the contended encroachment. Counsel submitted that the Appellant has proved ownership of the plot neighbouring the suit property which he actually occupies.
Counsel submitted that the Appellant proved his counter-claim on a balance of probability. Counsel submitted that he proved that his property was unfairly demolished by the 1st Respondent without notice. Counsel submitted that the trial court ignored material facts including the peculiar style of ownership of plots in the larger property, the role of the 2nd Defendant, the survey (or lack thereof particularly of the suit property) and the deliberate hiding of material information by witnesses of the 1st Respondent Counsel relied on Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya and the case of Nguku vs Republic (1985) KLR 412. Counsel prayed for costs.
1ST RESPONDENT’S SUBMISSIONS
Counsel for the 1st Respondent filed submissions dated 14th April, 2026. Counsel submitted that the trial magistrate was right to hold that the Plaintiff had proved his case. Counsel submitted that the Appellant cannot blame the trial magistrate and the judgment was sound and captured all the aspects of the evidence produced. Counsel asked the court to dismiss the appeal with costs as it lacks merit.
ANALYSIS AND DETERMINATION
The issue for determination is whether the appeal has merit. This being a first appeal, the court is guided by the principles in the case of Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR, where the court held as follows:
“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way”
In the case of Peters v Sunday Post Limited [1958] EA 424 Sir Kenneth O’Connor stated as follows:
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
The Appellant has listed eleven grounds of appeal which can be summarized as: failure of the trial court to take into account the evidence of the witnesses and dismissing its counterclaim on extraneous grounds.
The 1st Respondent in the Plaint dated 6th April, 2018 averred that the Appellant does not have any rights or interests in the suit property Plot No. 173/Subdivision No 3532 (original MN/1/2921/1) and he is a trespasser on the suit property. The 1st Respondent further averred that in 2013, the 1st Defendant and his wife had encroached and constructed an illegal semi-permanent timber structure on the land. He averred that they encroached on the said plot by about two meters.
The Appellant in his counterclaim dated 11th June, 2019 averred that as a consequence of the unlawful demolition, he suffered loss and damages and the Appellant claimed special damages in the amount of Ksh 292,320/=.
The trial court framed five issues for determination among them was whether the Appellant herein trespassed onto the land. The Appellant herein is questioning the ownership of the 1st Respondent to the suit parcel based on the second and sixth ground in his Memorandum of Appeal which are repetitive. The trial court in it’s judgment pronounced as follows:
“It cannot therefore be stated with certainty whether the 1st defendant purchased any land at all and if he did, what the identity of the said land is. Alleged changes in the numbering of the plots was not supported by any evidence. What is clear from the testimony of DW2 is that the land he sold the plaintiff does not abut the plaintiff land.”
It is trite law that he who alleges must prove. This is set out in section 107 of the evidence Act. It is as follows:
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on existence of facts which he asserts must prove those facts exist.
In Warrakah (Suing as the Administrator and Legal Representative of the Estate of Gakweli Mohamed Warrakah - Deceased) -vs- Mwatsami (Civil Appeal E015 of 2020) [2024] KECA 579 (KLR), trespass was said to occur when a person enters upon land of another without permission, remains there without justification or authority.
In Muthiora -vs- Marion Muthama [2022] KECA 28 [KLR], trespass was defined as unauthorised entry, whether present or continuous. To prove trespass, the court in M’Kiara M’Mukunya & Another -vs- M’Mbijiwe [1984] eKLR, said that one has to establish immediate exclusive possession whose rights have been violated by the intruder.
The trial court considered the question of ownership by the 1st Respondent by considering the agreement of sale between Saud Adi Bwaa and Joseph Nyawa Bengowa dated 3rd February, 2006, transfer clearance certificate and a certificate of ownership issued by the 2nd Respondent to Said Bwana Ali Bwana and a Certificate of Ownership dated 4th July, 2012 issued by the 2nd Respondent to Joseph N. Bengowa.
The trial court found that the documents produced by the 1st Respondent are consistent and show that ownership of the land has moved from Said Bwana Ali to Joseph N Bengowa who later sold it to the 1st Respondent. This court finds that the trial magistrate properly exercised his mind correctly found that the 1st Respondent had proved his case. I find that the appeal herein lacks merit and is dismissed with cost.
1) The Learned trial Magistrate erred in law and in fact in concluding and making a finding that the 1st Respondent had proved his case as against the Appellant without sufficient evidence and in toto disregard to material evidence tendered.
2) The Learned trial Magistrate erred in law and in fact in holding that the entire suit property described as Plot Number 173 belonged to the 1st Respondent contrary to his own evidence tendered by PW1 to the effect that the said plot had been subdivided to create a new triangular plot with a different plot number way back in 2009 long before the purported sale in 2012.
3) The Learned trial Magistrate erred in law and in relying on a Sale Agreement which was suspect and whose main term and condition clearly provided that the property was sold with vacant possession and that any trespassers were to be evicted by the Vendor, one Joseph Nyawa Bengoa. The remedy for vacant possession as instituted was not available to the 1st Respondent.
4) The Learned Magistrate erred in law and in finding for the 1st Respondent without crucial evidence of the purported Vendor who was the only party best placed to explain the actual plot and extent of the property sold to the 1st Respondent in spite of his whereabouts being known as residing in Voi.
5) The Learned Magistrate erred in law and in fact in failing to make an irresistible conclusion that failure on the part of the 1st Respondent to call the said vendor as a witness in spite of the importance of such evidence was because such evidence would have been deterimental to the 1st Respondent’s case. This position is further buttressed by the evidence of PW1 to the effect that the said Vendor may have been manipulated by the Appellant to hive off Plot Number 173 to create a new plot.
6) The Learned Magistrate erred in law in making a finding that the entire property belonged to the 1st Respondent contrary to his own evidence given by PW1 to the effect that the original Plot Number 173 had long been subdivided to create a new triangular plot with a different number.
7) The Learned Magistrate erred in law and in fact in dismissing the counterclaim on extraneous and technical grounds contrary to the established principals of law and the constitution requiring that courts be guided by justice and substance rather than form and procedure.
8) The Learned Magistrate erred in law and in fact in dismissing the Appellant’s evidence based on a minor issue of numbering in spite of the evidence that the whole property managed by the Shanzu Multi-Purpose Co-operative Society, the 2nd Respondent, was unsurveyed with numbers changing with each subdivision or transfer and where ownership was more on occupation than documentary.
9) The Learned Magistrate erred in law and in fact in making a finding that the suit property belonged to the 1st Respondent without evidence and on excuse that the ownership documents to the suit property were in possession of Joseph Nyawa Bengowa, the purported vendor but who was never summoned to give evidence or produce the said ownership documents.
10) The Learned Magistrate erred in law and in fact in holding that there was no sale agreement between the Appellant and one Jackson Arwaro Nyanumba, DW2, contrary to the evidence and documents submitted by the Appellant in his List of Documents.
11) The Learned Magistrate erred in law and in fact in shifting the burden of proof from the Respondent to the Appellant contrary to established principles of evidence thereby arriving at a wrong finding.
The Appellant sought the following orders from the court:
a. That this Appeal be allowed.
b. That the order dismissing the counterclaim be set aside and judgment be entered in favour of the Appellant as prayed in the counterclaim.
c. The costs of this Appeal be awarded to the Appellant.
The 1st Respondent had sued the Appellant in the lower court vide Plaint dated 6th April, 2018 and sought the following orders:
a. An order of eviction to issue against the 1st Defendant for the demolition, clearance and removal of all the illegal, unauthorized and unapproved structures constructed on Plot No, 173/3532 (original MN/1/2921/1) illegally and without the Plaintiff’s consent or authority at the 1st Defendant’s cost.
b. A Perpetual Injunction to issue against the 1st Defendant by himself or his wife, relatives, employees, agents, servants or his workers from trespassing, occupying or developing or building any structures whether permanent or not on the suit property at all times.
c. A Preservation Order by way of permanent injunction do issue restraining the 1st Defendant by himself or his wife or relatives, employees, agents, servants or his workers or any other person whomsoever and whatsoever from trespassing, occupying or developing or building any structures whether permanent or not on the suit property at all times, so as to secure the Plaintiff’s rights, interests and quiet enjoyment and possession of the suit property.
d. An Order of Mandatory injunction to issue against the 2nd and 3rd Defendants to proceed and halt or stop all the illegal activities being perpetuated by the 1st Defendant on the suit property and to ensure that any illegal and unapproved building and structures erected on this suit property are removed from the suit property and the 1st Defendant stopped from operating an illegal enterprise thereon in the name of a school or otherwise so as not to interfere with the Plaintiff’s proprietary rights, interests of ownership, user and possession thereon.
e. Costs.
The Appellant filed a Counter-claim dated 8th June, 2018 and amended on 11th June, 2019 and sought the following orders from the lower court:
a. An injunction restraining the Plaintiff, his agents and/or servants from further demolishing, trespassing, evicting, or in any other manner interfering with the 1st Defendant’s quiet enjoyment of the suit property plot number Plot No, 205B being part of larger plot No 3532 Original Number 2921/1 of Section 1 Mainland North Mombasa, Under Shanzu Wayani Corporation Society.
b. Special damages Ksh 292,320/=
c. Aggravated damages and/or punitive damages.
d. Costs of this suit.
e. Interest on (b) (c) and (d) above at court rates.
The trial court in it’s judgment dated 7th July 2023 entered Judgment for the 1St Respondent against the Appellant and 2nd Respondent in the following terms:
a. An order of eviction is hereby issued against the 1st defendant to demolish, clear and remove all structures that he has constructed on Plot No. 173/3532 (Original MN/1/2921/1),
b. A perpetual injunction is hereby issued restraining the 1st defendant by himself or his wife, relatives, employees, agents, servants or workers from trespassing, occupying or developing or building any structures whether permanent or not on Plot No 173/3532 (Original MN/1/2921/1) at all times.
c. The plaintiff shall have costs of the suit to be borne by the 1st Defendant and which shall attract interest seven days from the date of extraction of the certificate of costs until payment in full.
d. The 1st Defendants Counter-claim against the plaintiff is dismissed with costs to the plaintiff.
e. The suit against the 2nd and 3rd defendants is dismissed with no orders as to costs.
APPELLANT’S SUBMSSIONS
Counsel for the Appellant filed submissions dated 7th April, 2026 and identified the following issues for determination:
a. Whether the 1st Respondent proved that he was the lawful owner of the suit property?
b. Whether the 1st Respondent proved that the Appellant encroached into the suit property?
c. Whether the Appellant proved ownership of the plot he occupies?
d. What is the implication of the Appellant’s counterclaim?
It was counsel’s submission that the 1st Respondent failed to establish ownership of the suit property. Counsel submitted that even if this Honourable Court would find that the 1st Respondent had established ownership of the suit property, he failed to show that he was aware of the boundaries or the contended encroachment. Counsel submitted that the Appellant has proved ownership of the plot neighbouring the suit property which he actually occupies.
Counsel submitted that the Appellant proved his counter-claim on a balance of probability. Counsel submitted that he proved that his property was unfairly demolished by the 1st Respondent without notice. Counsel submitted that the trial court ignored material facts including the peculiar style of ownership of plots in the larger property, the role of the 2nd Defendant, the survey (or lack thereof particularly of the suit property) and the deliberate hiding of material information by witnesses of the 1st Respondent Counsel relied on Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya and the case of Nguku vs Republic (1985) KLR 412. Counsel prayed for costs.
1ST RESPONDENT’S SUBMISSIONS
Counsel for the 1st Respondent filed submissions dated 14th April, 2026. Counsel submitted that the trial magistrate was right to hold that the Plaintiff had proved his case. Counsel submitted that the Appellant cannot blame the trial magistrate and the judgment was sound and captured all the aspects of the evidence produced. Counsel asked the court to dismiss the appeal with costs as it lacks merit.
ANALYSIS AND DETERMINATION
The issue for determination is whether the appeal has merit. This being a first appeal, the court is guided by the principles in the case of Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR, where the court held as follows:
“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way”
In the case of Peters v Sunday Post Limited [1958] EA 424 Sir Kenneth O’Connor stated as follows:
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
The Appellant has listed eleven grounds of appeal which can be summarized as: failure of the trial court to take into account the evidence of the witnesses and dismissing its counterclaim on extraneous grounds.
The 1st Respondent in the Plaint dated 6th April, 2018 averred that the Appellant does not have any rights or interests in the suit property Plot No. 173/Subdivision No 3532 (original MN/1/2921/1) and he is a trespasser on the suit property. The 1st Respondent further averred that in 2013, the 1st Defendant and his wife had encroached and constructed an illegal semi-permanent timber structure on the land. He averred that they encroached on the said plot by about two meters.
The Appellant in his counterclaim dated 11th June, 2019 averred that as a consequence of the unlawful demolition, he suffered loss and damages and the Appellant claimed special damages in the amount of Ksh 292,320/=.
The trial court framed five issues for determination among them was whether the Appellant herein trespassed onto the land. The Appellant herein is questioning the ownership of the 1st Respondent to the suit parcel based on the second and sixth ground in his Memorandum of Appeal which are repetitive. The trial court in it’s judgment pronounced as follows:
“It cannot therefore be stated with certainty whether the 1st defendant purchased any land at all and if he did, what the identity of the said land is. Alleged changes in the numbering of the plots was not supported by any evidence. What is clear from the testimony of DW2 is that the land he sold the plaintiff does not abut the plaintiff land.”
It is trite law that he who alleges must prove. This is set out in section 107 of the evidence Act. It is as follows:
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on existence of facts which he asserts must prove those facts exist.
In Warrakah (Suing as the Administrator and Legal Representative of the Estate of Gakweli Mohamed Warrakah - Deceased) -vs- Mwatsami (Civil Appeal E015 of 2020) [2024] KECA 579 (KLR), trespass was said to occur when a person enters upon land of another without permission, remains there without justification or authority.
In Muthiora -vs- Marion Muthama [2022] KECA 28 [KLR], trespass was defined as unauthorised entry, whether present or continuous. To prove trespass, the court in M’Kiara M’Mukunya & Another -vs- M’Mbijiwe [1984] eKLR, said that one has to establish immediate exclusive possession whose rights have been violated by the intruder.
The trial court considered the question of ownership by the 1st Respondent by considering the agreement of sale between Saud Adi Bwaa and Joseph Nyawa Bengowa dated 3rd February, 2006, transfer clearance certificate and a certificate of ownership issued by the 2nd Respondent to Said Bwana Ali Bwana and a Certificate of Ownership dated 4th July, 2012 issued by the 2nd Respondent to Joseph N. Bengowa.
The trial court found that the documents produced by the 1st Respondent are consistent and show that ownership of the land has moved from Said Bwana Ali to Joseph N Bengowa who later sold it to the 1st Respondent. This court finds that the trial magistrate properly exercised his mind correctly found that the 1st Respondent had proved his case. I find that the appeal herein lacks merit and is dismissed with cost.