(Being an appeal from the judgment and decree of the Chief Magistrate’s Court at Milimani Law Courts delivered by Hon. T. T. Nzyoki (CM) on 5th September 2025 in Milimani Chief Magistrate’s Civil Suit No. 1261 of 2005)
1. This is a first appeal from the judgment and decree of the Chief Magistrate’s Court at Milimani delivered on 5th September 2025 in Milimani Chief Magistrate’s Civil Suit No. 1261 of 2005. The subject matter of the dispute is the tenancy of Stall No. 197 at Kariokor Market within the City of Nairobi, a public market stall belonging to the 2nd Respondent.
2. The contest is between two sisters. The 1st Respondent and the Appellant are both daughters of the late Mary Nthoki Mwongela, in whose name the stall is said at one time to have stood. The proceedings have had an unusually long life, the suit having been filed in the year 2005 and heard to judgment two decades later.
Background to the appeal
3. By an Amended Plaint dated 7th March 2019, the 1st Respondent (as Plaintiff) pleaded that the suit stall had been rented by the defunct City Council of Nairobi to her late mother; that upon her mother’s death on 23rd July 2003 she took over the stall, paid rent and obtained the requisite permits; and that in the year 2015 she was unlawfully evicted from the stall by the 2nd and 3rd Defendants. She produced as P. Exhibit No. 1 an original rent card dated 17th March 1999 issued in the name of her late mother.
4. The 1st Defendant (the 2nd Respondent herein) filed an Amended Defence dated 11th June 2024 in which it denied the Plaintiff’s tenancy and asserted that it was the Appellant who was its tenant of the suit stall. Its witness, DW1, Joshua Otieno Ondego , the Market Superintendent, testified that a rental card is the proof of tenancy of a market stall. He disputed the authenticity of P. Exhibit No. 1, pointing to certain defects on its face, and maintained that the stall stood rented to the Appellant.
5. The Appellant filed an Amended Defence dated 5th November 2024 in which she asserted that she was the lawful tenant of the suit stall; that her rent card had been lost or misplaced; and that her documents were held by the County. She produced limited documentation but maintained her entitlement.
6. The suit was heard on 24th April 2025, the witnesses were cross-examined, and directions were given touching on the production of original documents. The learned trial magistrate thereafter reserved and delivered judgment on 5th September 2025.
The impugned judgment
7. In summary, the learned trial magistrate held that the original rent card produced as P. Exhibit No. 1 proved the tenancy of the parties’ late mother; that neither daughter held a proprietary interest in the suit stall, relying for that proposition on Clovers Foods (K) Limited & Another v The City Council of Nairobi & Another [2009] KEHC 2533 (KLR) ; that the County’s claim that the Appellant was its tenant lacked documentary support and suggested “fraudulent connivance” between the Appellant and the County’s witness; that the Plaintiff’s suit therefore failed; and that each party should bear its own costs on account of the conduct of the County’s witness and of the Appellant.
8. It is important to note, at the outset, two features of that judgment which shape the whole of this appeal. First, the Plaintiff’s suit was dismissed, and the 1st Respondent has neither appealed nor cross-appealed against that dismissal. The dismissal therefore stands unchallenged before me. Secondly, the Appellant, who was the 2nd Defendant, filed no counterclaim and sought no affirmative relief of her own before the trial court.
The appeal
9. Aggrieved by that judgment, the Appellant lodged the present appeal by a Memorandum of Appeal dated 3rd October 2025 setting out ten grounds. Condensed, and without repeating them verbatim, the complaints are that the learned trial magistrate erred in law and in fact in: (a) failing to find that the rent card adduced by the 1st Respondent was fraudulent, fake and unreliable; (b) shifting the burden of proof by faulting the Appellant and the 2nd Respondent for not producing an alternative document; (c) issuing a contradictory decision in finding that the stall belonged to the estate of the late Mary Nthoki Mwongela while at the same time dismissing the 1st Respondent’s suit; (d) finding connivance and fraud on the part of the Appellant and the 2nd Respondent’s witness without any evidence; (e) failing to find that the Appellant had proved her entitlement to and interest in the stall through documentary evidence endorsed by the issuing entity’s witness; (f) failing to take into account the defects in P. Exhibit No. 1 demonstrated by the 2nd Respondent’s witness; (g) misdirecting himself on the applicable law and principles in evaluating the evidence; (h) ignoring the authorities cited in the Appellant’s written submissions; (i) failing to award the Appellant the costs of the suit upon dismissing the 1st Respondent’s suit; and (j) delivering a judgment demonstrating bias and lack of fairness towards the Appellant.
10. The Appellant prays that the appeal be allowed with costs; that the judgment and decree of 5th September 2025 be set aside; and for such further orders as the Court may deem just.
The interlocutory ruling and the additional evidence
11. By a Notice of Motion dated 8th December 2025 the Appellant sought orders compelling the 2nd Respondent to produce the original rental card No. 308 for Kariokor Market Stall No. 197 dated 2nd May 1978, together with any other relevant documents, and for leave to adduce additional evidence on the appeal. By a Ruling delivered on 30th April 2026 I allowed that application and ordered, in material part, that: (i) the 2nd Respondent do produce to the Court and serve on all parties, within fourteen days, the original rental card No. 308 dated 2nd May 1978 and any other original or relevant documents in its custody relating to the tenancy of Kariokor Market Stall No. 197, and in default file an affidavit explaining the steps taken to locate the same; (ii) the Appellant be granted leave to adduce as additional evidence the duplicate replacement rental card No. 170 and any originals produced by the 2nd Respondent, the same to be filed as a Supplementary Record of Appeal within twenty-one days; and (iii) the Respondents be at liberty, if so advised, to file any response within fourteen days thereafter.
12. In compliance with those orders the Appellant filed a Supplementary Record of Appeal dated 10th June 2026 containing the Ruling of 30th April 2026, the market rental card dated 2nd May 1978, the market rental card duplicate dated 24th February 2016, a Market Stalls Data Requirement form of 2021, a payment receipt dated 6th May 2026, and a certified copy of a marriage certificate dated 19th December 2025.
13. For its part, the 2nd Respondent filed the affidavit of Joshua Otieno Ondego sworn on 10th June 2026 pursuant to the Ruling. He deposes, in substance, that the 2nd Respondent issued the Appellant with the original rental card for Stall No. 197, Kariokor Market on 2nd May 1978, being rental card No. 308, and that it did not retain the original of the said card, a copy of which is annexed as JOO-1 ; that in the course of following up on the issues arising from the stall it came across an agreement between the Appellant and one Mr. Peter Munga Riithi in respect of the contested stall, annexed together with its attachments as JOO-2 ; that according to the said agreement the Appellant sold the contested stall to Mr. Peter Munga on 29th April 2005 for a consideration of Kshs. 150,000/= purportedly paid in cash; and that the 2nd Respondent did not consent to that transfer as required under Condition 16 of the Conditions of Tenancy exhibited on the market rental card.
14. The material annexed as JOO-2 merits description, since much turns on it. It comprises a handwritten instrument dated 29th April 2005 headed “Sale Agreement of Stall No. 197 in Kariokor Market”, bearing the endorsement that stall card No. 308 was surrendered. By that instrument a vendor describing herself as the holder of identification/passport No. A347006 and as the “legal tenant” of the stall agreed to sell it to Mr. Peter Munga Riithi for Kshs. 150,000/= payable in cash, recorded that she had “surrendered all documents pertaining to it”, that she had “nothing to claim whatsoever with effect from today”, and that the purchaser should take immediate possession of the stall. The instrument is signed by the vendor and by the purchaser and witnessed. Attached to it are a letter dated 22nd September 2005 from Mr. Riithi to the Director of Social Services of the Nairobi City Council requesting the transfer of the stall into his name; a letter dated 23rd June 2005 from Mr. Riithi to the Chairman of Kariokor Market complaining that he had been approached by the person holding herself out as the owner of the stall and seeking guidance on the recovery of his money; and copies of a Kenyan national identity card and of passport No. A347006 in the names of the Appellant.
Submissions
15. The Appellant filed written submissions dated 25th July 2026 accompanied by a list of five authorities. The 2nd Respondent filed written submissions dated 4th September 2026 through the firm of Ombok & Owuor Advocates LLP. The 1st Respondent filed no submissions, no explanation for that omission having been offered on her part and no application for extension of time having been made.
16. The failure by the 1st Respondent to file submissions is not fatal to the determination of this appeal, nor does it operate as an admission of the Appellant’s case. Written submissions are not evidence; they are the advocacy by which a party seeks to persuade the court of the effect of the pleadings and the evidence already on record. Where a party elects not to file them, the court proceeds on the pleadings, the record of appeal and the evidence, and remains under a duty to determine the appeal on its merits. I have accordingly considered the record of appeal, the supplementary record of appeal, the affidavit filed by the 2nd Respondent in compliance with the Ruling of 30th April 2026, and the submissions and authorities of the Appellant and of the 2nd Respondent.
17. In her submissions the Appellant frames four issues: whether the learned trial magistrate properly evaluated the evidence tendered before the trial court; whether he improperly shifted the burden of proof; whether the findings on fraud, ownership and the credibility of the documentary evidence were supported by the evidence on record; and whether the 2nd Respondent is entitled to rely on fresh documentary evidence at the appellate stage.
18. On the first issue she relies on Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 and Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR for the duty of a first appellate court and the circumstances in which it may interfere. She submits that the trial court relied selectively on portions of the evidence, failed to interrogate the defects demonstrated in P. Exhibit No. 1, including the absence of the requisite stamp, and failed to reconcile the competing documentary evidence.
19. On the second issue she relies on sections 107, 108 and 109 of the Evidence Act, on Karugi & Another v Kabiya & 3 Others [1987] KLR 347 and on Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR for the proposition that the legal burden of proof never shifts, and submits that the trial court in effect required her to prove a negative.
20. On the third issue she relies on Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR and Kinyanjui Kamau v George Kamau [2015] eKLR for the propositions that fraud must be specifically pleaded and strictly proved to a standard higher than a mere balance of probabilities, and that it may not be inferred from suspicion or conjecture.
21. On the fourth issue she relies on Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR and urges the Court to disregard the documentary evidence introduced by the 2nd Respondent through its affidavit, on the footing that it was not produced, tested or considered at the trial and that no leave was sought to introduce it. In the alternative, she submits that the alleged sale agreement cannot conclusively determine the ownership of the suit stall, ownership being proved by the payment of rent, and that at best it raises factual questions never canvassed at the trial.
22. The 2nd Respondent’s submissions begin from the proposition that all the grounds of appeal resolve themselves into a single question, namely who is the rightful tenant of Stall No. 197 at Kariokor Market. Counsel recounts the history of the Appellant’s application for production, the Ruling of 30th April 2026 and the filing of the affidavit of DW1 in compliance with it, and reiterates the position taken at the trial: that the original rental card for the suit stall, being card No. 308, was issued to the Appellant on 2nd May 1978, and that the 2nd Respondent, having parted with the original, retained only the copy now produced.
23. As to the instrument of 29th April 2005, counsel invites attention to two features of the material annexed to that affidavit: that the photograph borne by the copy of the rental card in the 2nd Respondent’s custody is an older photograph of the Appellant than that appearing on her own affidavit sworn on 8th December 2025; and that the copy of the old generation Kenyan passport No. A347006 annexed in support of the instrument is one which, in counsel’s submission, could in all probability have come to be so attached only upon its presentation by the Appellant herself.
24. Notwithstanding that instrument, the 2nd Respondent maintains, as it did at the trial, that upon its own records as at the institution of both the original suit and of this appeal the Appellant is its rightful tenant of the suit stall. It relies upon Condition 16 of the Conditions of Tenancy endorsed on the market stall rent card, which forbids a tenant to sublet, assign, transfer or otherwise part with or change the proprietorship of the stall without the written consent of the Council, and upon Clovers Foods (K) Limited & Another v The City Council of Nairobi & Another [2009] KEHC 2533 (KLR) , in which Okwengu J (as she then was) held that a market stall rent card passes no proprietorship interest, that the tenancy which it creates is qualified and is more in the nature of a licence than a conventional lease, and that the presence in a stall of a person whom the landlord has not sanctioned, being in breach of the tenancy agreement, cannot bind the landlord.
Issues for determination
25. Having considered the record and the submissions, the issues that fall for determination in this appeal are the following:
(i) Whether the learned trial magistrate properly evaluated the evidence tendered before the trial court;
(ii) Whether the learned trial magistrate improperly shifted the burden of proof;
(iii) Whether the findings on fraud, on ownership and on the credibility of the documentary evidence were supported by the evidence on record;
(iv) Whether and to what extent the additional evidence now on record may properly be relied upon, and what its effect is;
(v) What orders ought to issue, including as to costs.
Analysis and determination
26. Before turning to the issues, I remind myself of the duty of a first appellate court. It is to reconsider and re-evaluate the whole of the evidence on record, to weigh it afresh and to arrive at its own independent conclusions, bearing always in mind that it neither saw nor heard the witnesses and making due allowance in that respect. That is the effect of Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 , and of Peters v Sunday Post Ltd [1958] EA 424 , where the predecessor of the Court of Appeal cautioned that although an appellate court has jurisdiction to review the evidence, that jurisdiction is exercised with caution; but that where there is no evidence to support a particular conclusion, or where the trial court has failed to appreciate the weight or bearing of circumstances admitted or proved, or has plainly gone wrong, the appellate court will not hesitate to so decide. The same principles were restated by the Court of Appeal in Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR .
27. There is a further matter of scope which must be addressed at the threshold, because it governs the relief that this appeal can yield. The 1st Respondent’s suit was dismissed. She has not appealed and has not cross-appealed. The dismissal is therefore final as between the parties and is not before me for reconsideration. The Appellant, for her part, was a defendant who filed no counterclaim and prayed for no declaration of her own entitlement. Her grievance is confined to the adverse findings made against her in the course of the judgment and to the refusal of costs. It follows that even were every ground of appeal to succeed, this Court could not, in these proceedings, make a positive declaration vesting the tenancy of Stall No. 197 in the Appellant. A court grants relief on the pleadings before it, and it does not confer upon a party a decree which that party never sought. It follows, too, that the single question into which the 2nd Respondent would collapse this appeal who is the rightful tenant of Stall No. 197 is not one which these proceedings, as constituted and as pleaded, are capable of answering. I return to this point when I come to the orders.
(i) Whether the learned trial magistrate properly evaluated the evidence
28. The Appellant’s complaint under this head has some force, though not the force she attributes to it. The trial court was confronted with two competing accounts, each resting on a market rental card. The 1st Respondent produced P. Exhibit No. 1, a rent card dated 17th March 1999 in the name of the late Mary Nthoki Mwongela. The 2nd Respondent, through DW1 , disputed the authenticity of that card and pointed to defects upon its face, including the absence of the stamp which its own records would ordinarily bear. The Appellant asserted a tenancy which she said was evidenced by a card that had been lost.
29. Having re-read the record, I accept that the judgment does not squarely grapple with the specific defects which the issuing authority’s own witness identified in P. Exhibit No. 1. Where the custodian of the record impugns a document said to have emanated from it, the trial court is bound to interrogate that evidence and to say why it accepts or rejects it. To that limited extent the evaluation was incomplete.
30. That said, the incompleteness did not, on the facts, occasion the Appellant any prejudice capable of founding the relief she seeks. The trial court did not enter judgment against her. It dismissed the claim brought against her. And its central legal conclusion that a rental card for a public market stall does not confer a proprietary interest in the stall was, in my respectful view, correct and is not seriously contestable. The stall is public property vested in the 2nd Respondent. What the rental card evidences is a monthly contractual tenancy between the County and the named tenant: personal to that tenant, terminable by either party on one calendar month’s notice under Condition 31 of the Conditions of Tenancy, and incapable of being sublet, assigned, transferred or otherwise parted with save with the written consent of the Council or County under Condition 16. That is the very point made in Clovers Foods (K) Limited & Another v The City Council of Nairobi & Another [2009] KEHC 2533 (KLR) upon which the trial court relied. No amount of re-evaluation of the two cards could have converted either sister’s claim into a proprietary interest in the stall.
31. This ground therefore succeeds only in part, and to no practical effect.
(ii) Whether the burden of proof was improperly shifted
32. The law on this issue is not in doubt. Under sections 107, 108 and 109 of the Evidence Act, whoever desires a court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist, and the burden of proof in a suit lies on the person who would fail if no evidence at all were given on either side. The legal or persuasive burden is fixed by the pleadings and never shifts. That is the effect of Karugi & Another v Kabiya & 3 Others [1987] KLR 347 and of Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR .
33. What does shift, as the evidence unfolds, is the evidential burden. Once a party bearing the legal burden has adduced evidence which, if unanswered, would entitle it to succeed, the evidential burden moves to the opposing party, who will fail without further evidence. Moreover, section 109 places upon any party asserting a particular fact the burden of proving that fact. Here, both the 2nd Respondent and the Appellant asserted an affirmative case of their own, namely that the Appellant was the County’s tenant of Stall No. 197. That assertion they were bound to prove.
34. Read in that light, the learned trial magistrate’s observation that the Appellant and the County had not produced any document alternative to P. Exhibit No. 1 was not a reversal of the legal burden. It was a comment on the evidential burden which their own pleaded case cast upon them. In any event, the magistrate did not find against the Appellant on the strength of that observation; he dismissed the Plaintiff’s claim for failure to discharge the burden which lay upon her throughout. There was no misdirection of the kind alleged. This ground fails.
(iii) The findings on fraud, on ownership and on credibility
35. I take the finding of fraud first. It is trite that fraud is a serious allegation which must be specifically pleaded, that full particulars of it must be set out on the face of the pleading, and that it must be strictly proved to a standard higher than a mere balance of probabilities although not to the criminal standard. The authorities are legion; it suffices to refer to Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR , where the Court of Appeal reiterated that fraudulent conduct must be distinctly alleged and as distinctly proved, and that it is not permissible to leave fraud to be inferred from the facts, and to Kinyanjui Kamau v George Kamau [2015] eKLR on the standard of proof.
36. In the present case no fraud was pleaded against the Appellant. No particulars of fraud were furnished against her or against DW1 . Neither of them was put on notice that such a case was to be met, and neither was cross-examined on any such allegation. In those circumstances the finding that the Appellant and the County’s witness had engaged in “fraudulent connivance” in respect of the rent card was made without pleading, without particulars, without the requisite standard of proof and without affording the persons impugned an opportunity to be heard upon it. It cannot stand. A finding of that gravity, made against a litigant and against a public officer in a judgment which is a public document, carries lasting consequences for reputation and for employment. It offends Article 50(1) of the Constitution. It must be, and is, set aside.
37. I turn to the complaint of contradiction. Having dismissed the Plaintiff’s suit, and having correctly held that neither daughter had established a proprietary interest, the trial court proceeded to hold that the suit stall belonged to the estate of the late Mary Nthoki Mwongela. That holding is problematic on three counts. First, no such declaration was sought in any of the pleadings. Secondly, the estate of the deceased was not a party to the suit; no administrator or legal representative of the estate was before the court, and no grant was produced. A court should not adjudicate upon the rights of persons who are not before it and who have had no opportunity to be heard. Thirdly, the holding sits uneasily with the court’s own correct conclusion that a market stall tenancy confers no proprietary interest capable of transmission as an asset of an estate. To that extent ground 3 of the Memorandum of Appeal succeeds, and the declaration relating to the estate is set aside.
38. I should make clear what does survive. The trial court’s conclusion that neither the 1st Respondent nor the Appellant established a proprietary interest in Stall No. 197 was correct and I affirm it. What is set aside is the further and unnecessary declaration vesting the stall in the estate.
39. As to ground 10, the allegation of bias and lack of fairness, an allegation of that character is a grave one and must be substantiated by material, not asserted. Nothing on this record supports it. The learned trial magistrate dismissed the claim which had been brought against the Appellant, which is a curious way of manifesting bias against her. That some of his findings were, as I have held, unsustainable is a ground of appeal; it is not evidence of partiality. This ground fails.
(iv) The additional evidence and its effect
40. The Appellant urges the Court to disregard the documentary material introduced by the 2nd Respondent through the affidavit of Joshua Otieno Ondego , on the footing that it was not produced or tested at the trial and that no leave was sought to adduce it. With respect, that submission is untenable on this record.
41. This is not a case of a party smuggling fresh material onto an appellate record. The affidavit of 10th June 2026 was filed in direct compliance with orders (i) and (iii) of this Court’s Ruling of 30th April 2026 orders made on the Appellant’s own application. She asked the Court to compel the 2nd Respondent to produce “the original copies of the rental card number 308 and any other relevant documents”. The Court acceded, and directed the production of the original card “and any other original or relevant documents in its custody relating to the tenancy of Kariokor Market Stall No. 197”, with liberty to the Respondents to file a response. The reception of the affidavit rests on section 78(1)(d) of the Civil Procedure Act and Order 42 rule 27(1)(b) of the Civil Procedure Rules, 2010, under which this Court may require a document to be produced to enable it to pronounce judgment. The principles in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR were applied at the interlocutory stage; they do not fall to be re-litigated now.
42. A party who invites the Court to compel the production of records cannot be heard to complain when the production yields material which does not favour her. The Court cannot receive such a return selectively, accepting the rental card and rejecting what accompanied it in the same custody. Nor was the Appellant without remedy: the Ruling expressly permitted responses, and she was at liberty to file a further affidavit contesting the authenticity of the instrument of 29th April 2005 or to apply to cross-examine the deponent. She did neither. In her submissions she does not deny the execution of the instrument; she argues only that it is inadmissible and, in the alternative, that it is not conclusive of ownership. The authenticity of the material is therefore uncontroverted before me.
43. What, then, is its effect? The rental card No. 308 dated 2nd May 1978 and the duplicate replacement card No. 170 issued on 24th February 2016 are both in the name “Mwongela Mary M.” and not in the Appellant’s married name. The duplicate card bears the Appellant’s own postal address and records the date of commencement of the tenancy as 2nd May 1978, “as of the original card No. 308”. The certified copy of the marriage certificate shows that the Appellant was married on 10th October 1983 in the names Mary Musuki Mwongela. Taken at its highest, therefore, the Appellant’s case is that the tenant registered on card No. 308 in 1978 was herself, in her maiden name, and not her late mother.
44. It is precisely on that footing that the instrument of 29th April 2005 becomes significant. It was executed under passport No. A347006, being the passport produced in the same bundle in the Appellant’s names. By it the vendor described herself as the “legal tenant” of Stall No. 197, sold it for Kshs. 150,000/=, recorded the surrender of stall card No. 308 and of all documents pertaining to the stall, declared that she had “nothing to claim whatsoever” from that date, and delivered immediate possession to the purchaser. If, as the Appellant asks this Court to accept, she was the tenant on card No. 308, then by that instrument she purported to divest herself of that tenancy in the year 2005 some ten years before the eviction pleaded in the suit, and two decades before this appeal. If she was not that tenant, her claim fails at the threshold. The Appellant cannot approbate and reprobate: she cannot rely on card No. 308 to found her status and simultaneously disown the instrument by which she surrendered it.
45. I am equally clear that the purported sale did not confer anything on Mr. Peter Munga Riithi. It was made without the written consent of the Council required by Condition 16 of the Conditions of Tenancy, and a public market stall is not a chattel to be traded between private persons for value. The correspondence annexed to JOO-2 shows that Mr. Riithi himself came to appreciate as much, and was by June 2005 writing to the market committee to recover his money. Whether, in consequence, the Appellant’s own tenancy was ever validly determined as against the County a surrender to a stranger not being a surrender to the landlord raises a further question which
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1. This is a first appeal from the judgment and decree of the Chief Magistrate’s Court at Milimani delivered on 5th September 2025 in Milimani Chief Magistrate’s Civil Suit No. 1261 of 2005. The subject matter of the dispute is the tenancy of Stall No. 197 at Kariokor Market within the City of Nairobi, a public market stall belonging to the 2nd Respondent.
2. The contest is between two sisters. The 1st Respondent and the Appellant are both daughters of the late Mary Nthoki Mwongela, in whose name the stall is said at one time to have stood. The proceedings have had an unusually long life, the suit having been filed in the year 2005 and heard to judgment two decades later.
Background to the appeal
3. By an Amended Plaint dated 7th March 2019, the 1st Respondent (as Plaintiff) pleaded that the suit stall had been rented by the defunct City Council of Nairobi to her late mother; that upon her mother’s death on 23rd July 2003 she took over the stall, paid rent and obtained the requisite permits; and that in the year 2015 she was unlawfully evicted from the stall by the 2nd and 3rd Defendants. She produced as P. Exhibit No. 1 an original rent card dated 17th March 1999 issued in the name of her late mother.
4. The 1st Defendant (the 2nd Respondent herein) filed an Amended Defence dated 11th June 2024 in which it denied the Plaintiff’s tenancy and asserted that it was the Appellant who was its tenant of the suit stall. Its witness, DW1, Joshua Otieno Ondego , the Market Superintendent, testified that a rental card is the proof of tenancy of a market stall. He disputed the authenticity of P. Exhibit No. 1, pointing to certain defects on its face, and maintained that the stall stood rented to the Appellant.
5. The Appellant filed an Amended Defence dated 5th November 2024 in which she asserted that she was the lawful tenant of the suit stall; that her rent card had been lost or misplaced; and that her documents were held by the County. She produced limited documentation but maintained her entitlement.
6. The suit was heard on 24th April 2025, the witnesses were cross-examined, and directions were given touching on the production of original documents. The learned trial magistrate thereafter reserved and delivered judgment on 5th September 2025.
The impugned judgment
7. In summary, the learned trial magistrate held that the original rent card produced as P. Exhibit No. 1 proved the tenancy of the parties’ late mother; that neither daughter held a proprietary interest in the suit stall, relying for that proposition on Clovers Foods (K) Limited & Another v The City Council of Nairobi & Another [2009] KEHC 2533 (KLR) ; that the County’s claim that the Appellant was its tenant lacked documentary support and suggested “fraudulent connivance” between the Appellant and the County’s witness; that the Plaintiff’s suit therefore failed; and that each party should bear its own costs on account of the conduct of the County’s witness and of the Appellant.
8. It is important to note, at the outset, two features of that judgment which shape the whole of this appeal. First, the Plaintiff’s suit was dismissed, and the 1st Respondent has neither appealed nor cross-appealed against that dismissal. The dismissal therefore stands unchallenged before me. Secondly, the Appellant, who was the 2nd Defendant, filed no counterclaim and sought no affirmative relief of her own before the trial court.
The appeal
9. Aggrieved by that judgment, the Appellant lodged the present appeal by a Memorandum of Appeal dated 3rd October 2025 setting out ten grounds. Condensed, and without repeating them verbatim, the complaints are that the learned trial magistrate erred in law and in fact in: (a) failing to find that the rent card adduced by the 1st Respondent was fraudulent, fake and unreliable; (b) shifting the burden of proof by faulting the Appellant and the 2nd Respondent for not producing an alternative document; (c) issuing a contradictory decision in finding that the stall belonged to the estate of the late Mary Nthoki Mwongela while at the same time dismissing the 1st Respondent’s suit; (d) finding connivance and fraud on the part of the Appellant and the 2nd Respondent’s witness without any evidence; (e) failing to find that the Appellant had proved her entitlement to and interest in the stall through documentary evidence endorsed by the issuing entity’s witness; (f) failing to take into account the defects in P. Exhibit No. 1 demonstrated by the 2nd Respondent’s witness; (g) misdirecting himself on the applicable law and principles in evaluating the evidence; (h) ignoring the authorities cited in the Appellant’s written submissions; (i) failing to award the Appellant the costs of the suit upon dismissing the 1st Respondent’s suit; and (j) delivering a judgment demonstrating bias and lack of fairness towards the Appellant.
10. The Appellant prays that the appeal be allowed with costs; that the judgment and decree of 5th September 2025 be set aside; and for such further orders as the Court may deem just.
The interlocutory ruling and the additional evidence
11. By a Notice of Motion dated 8th December 2025 the Appellant sought orders compelling the 2nd Respondent to produce the original rental card No. 308 for Kariokor Market Stall No. 197 dated 2nd May 1978, together with any other relevant documents, and for leave to adduce additional evidence on the appeal. By a Ruling delivered on 30th April 2026 I allowed that application and ordered, in material part, that: (i) the 2nd Respondent do produce to the Court and serve on all parties, within fourteen days, the original rental card No. 308 dated 2nd May 1978 and any other original or relevant documents in its custody relating to the tenancy of Kariokor Market Stall No. 197, and in default file an affidavit explaining the steps taken to locate the same; (ii) the Appellant be granted leave to adduce as additional evidence the duplicate replacement rental card No. 170 and any originals produced by the 2nd Respondent, the same to be filed as a Supplementary Record of Appeal within twenty-one days; and (iii) the Respondents be at liberty, if so advised, to file any response within fourteen days thereafter.
12. In compliance with those orders the Appellant filed a Supplementary Record of Appeal dated 10th June 2026 containing the Ruling of 30th April 2026, the market rental card dated 2nd May 1978, the market rental card duplicate dated 24th February 2016, a Market Stalls Data Requirement form of 2021, a payment receipt dated 6th May 2026, and a certified copy of a marriage certificate dated 19th December 2025.
13. For its part, the 2nd Respondent filed the affidavit of Joshua Otieno Ondego sworn on 10th June 2026 pursuant to the Ruling. He deposes, in substance, that the 2nd Respondent issued the Appellant with the original rental card for Stall No. 197, Kariokor Market on 2nd May 1978, being rental card No. 308, and that it did not retain the original of the said card, a copy of which is annexed as JOO-1 ; that in the course of following up on the issues arising from the stall it came across an agreement between the Appellant and one Mr. Peter Munga Riithi in respect of the contested stall, annexed together with its attachments as JOO-2 ; that according to the said agreement the Appellant sold the contested stall to Mr. Peter Munga on 29th April 2005 for a consideration of Kshs. 150,000/= purportedly paid in cash; and that the 2nd Respondent did not consent to that transfer as required under Condition 16 of the Conditions of Tenancy exhibited on the market rental card.
14. The material annexed as JOO-2 merits description, since much turns on it. It comprises a handwritten instrument dated 29th April 2005 headed “Sale Agreement of Stall No. 197 in Kariokor Market”, bearing the endorsement that stall card No. 308 was surrendered. By that instrument a vendor describing herself as the holder of identification/passport No. A347006 and as the “legal tenant” of the stall agreed to sell it to Mr. Peter Munga Riithi for Kshs. 150,000/= payable in cash, recorded that she had “surrendered all documents pertaining to it”, that she had “nothing to claim whatsoever with effect from today”, and that the purchaser should take immediate possession of the stall. The instrument is signed by the vendor and by the purchaser and witnessed. Attached to it are a letter dated 22nd September 2005 from Mr. Riithi to the Director of Social Services of the Nairobi City Council requesting the transfer of the stall into his name; a letter dated 23rd June 2005 from Mr. Riithi to the Chairman of Kariokor Market complaining that he had been approached by the person holding herself out as the owner of the stall and seeking guidance on the recovery of his money; and copies of a Kenyan national identity card and of passport No. A347006 in the names of the Appellant.
Submissions
15. The Appellant filed written submissions dated 25th July 2026 accompanied by a list of five authorities. The 2nd Respondent filed written submissions dated 4th September 2026 through the firm of Ombok & Owuor Advocates LLP. The 1st Respondent filed no submissions, no explanation for that omission having been offered on her part and no application for extension of time having been made.
16. The failure by the 1st Respondent to file submissions is not fatal to the determination of this appeal, nor does it operate as an admission of the Appellant’s case. Written submissions are not evidence; they are the advocacy by which a party seeks to persuade the court of the effect of the pleadings and the evidence already on record. Where a party elects not to file them, the court proceeds on the pleadings, the record of appeal and the evidence, and remains under a duty to determine the appeal on its merits. I have accordingly considered the record of appeal, the supplementary record of appeal, the affidavit filed by the 2nd Respondent in compliance with the Ruling of 30th April 2026, and the submissions and authorities of the Appellant and of the 2nd Respondent.
17. In her submissions the Appellant frames four issues: whether the learned trial magistrate properly evaluated the evidence tendered before the trial court; whether he improperly shifted the burden of proof; whether the findings on fraud, ownership and the credibility of the documentary evidence were supported by the evidence on record; and whether the 2nd Respondent is entitled to rely on fresh documentary evidence at the appellate stage.
18. On the first issue she relies on Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 and Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR for the duty of a first appellate court and the circumstances in which it may interfere. She submits that the trial court relied selectively on portions of the evidence, failed to interrogate the defects demonstrated in P. Exhibit No. 1, including the absence of the requisite stamp, and failed to reconcile the competing documentary evidence.
19. On the second issue she relies on sections 107, 108 and 109 of the Evidence Act, on Karugi & Another v Kabiya & 3 Others [1987] KLR 347 and on Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR for the proposition that the legal burden of proof never shifts, and submits that the trial court in effect required her to prove a negative.
20. On the third issue she relies on Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR and Kinyanjui Kamau v George Kamau [2015] eKLR for the propositions that fraud must be specifically pleaded and strictly proved to a standard higher than a mere balance of probabilities, and that it may not be inferred from suspicion or conjecture.
21. On the fourth issue she relies on Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR and urges the Court to disregard the documentary evidence introduced by the 2nd Respondent through its affidavit, on the footing that it was not produced, tested or considered at the trial and that no leave was sought to introduce it. In the alternative, she submits that the alleged sale agreement cannot conclusively determine the ownership of the suit stall, ownership being proved by the payment of rent, and that at best it raises factual questions never canvassed at the trial.
22. The 2nd Respondent’s submissions begin from the proposition that all the grounds of appeal resolve themselves into a single question, namely who is the rightful tenant of Stall No. 197 at Kariokor Market. Counsel recounts the history of the Appellant’s application for production, the Ruling of 30th April 2026 and the filing of the affidavit of DW1 in compliance with it, and reiterates the position taken at the trial: that the original rental card for the suit stall, being card No. 308, was issued to the Appellant on 2nd May 1978, and that the 2nd Respondent, having parted with the original, retained only the copy now produced.
23. As to the instrument of 29th April 2005, counsel invites attention to two features of the material annexed to that affidavit: that the photograph borne by the copy of the rental card in the 2nd Respondent’s custody is an older photograph of the Appellant than that appearing on her own affidavit sworn on 8th December 2025; and that the copy of the old generation Kenyan passport No. A347006 annexed in support of the instrument is one which, in counsel’s submission, could in all probability have come to be so attached only upon its presentation by the Appellant herself.
24. Notwithstanding that instrument, the 2nd Respondent maintains, as it did at the trial, that upon its own records as at the institution of both the original suit and of this appeal the Appellant is its rightful tenant of the suit stall. It relies upon Condition 16 of the Conditions of Tenancy endorsed on the market stall rent card, which forbids a tenant to sublet, assign, transfer or otherwise part with or change the proprietorship of the stall without the written consent of the Council, and upon Clovers Foods (K) Limited & Another v The City Council of Nairobi & Another [2009] KEHC 2533 (KLR) , in which Okwengu J (as she then was) held that a market stall rent card passes no proprietorship interest, that the tenancy which it creates is qualified and is more in the nature of a licence than a conventional lease, and that the presence in a stall of a person whom the landlord has not sanctioned, being in breach of the tenancy agreement, cannot bind the landlord.
Issues for determination
25. Having considered the record and the submissions, the issues that fall for determination in this appeal are the following:
(i) Whether the learned trial magistrate properly evaluated the evidence tendered before the trial court;
(ii) Whether the learned trial magistrate improperly shifted the burden of proof;
(iii) Whether the findings on fraud, on ownership and on the credibility of the documentary evidence were supported by the evidence on record;
(iv) Whether and to what extent the additional evidence now on record may properly be relied upon, and what its effect is;
(v) What orders ought to issue, including as to costs.
Analysis and determination
26. Before turning to the issues, I remind myself of the duty of a first appellate court. It is to reconsider and re-evaluate the whole of the evidence on record, to weigh it afresh and to arrive at its own independent conclusions, bearing always in mind that it neither saw nor heard the witnesses and making due allowance in that respect. That is the effect of Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 , and of Peters v Sunday Post Ltd [1958] EA 424 , where the predecessor of the Court of Appeal cautioned that although an appellate court has jurisdiction to review the evidence, that jurisdiction is exercised with caution; but that where there is no evidence to support a particular conclusion, or where the trial court has failed to appreciate the weight or bearing of circumstances admitted or proved, or has plainly gone wrong, the appellate court will not hesitate to so decide. The same principles were restated by the Court of Appeal in Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR .
27. There is a further matter of scope which must be addressed at the threshold, because it governs the relief that this appeal can yield. The 1st Respondent’s suit was dismissed. She has not appealed and has not cross-appealed. The dismissal is therefore final as between the parties and is not before me for reconsideration. The Appellant, for her part, was a defendant who filed no counterclaim and prayed for no declaration of her own entitlement. Her grievance is confined to the adverse findings made against her in the course of the judgment and to the refusal of costs. It follows that even were every ground of appeal to succeed, this Court could not, in these proceedings, make a positive declaration vesting the tenancy of Stall No. 197 in the Appellant. A court grants relief on the pleadings before it, and it does not confer upon a party a decree which that party never sought. It follows, too, that the single question into which the 2nd Respondent would collapse this appeal who is the rightful tenant of Stall No. 197 is not one which these proceedings, as constituted and as pleaded, are capable of answering. I return to this point when I come to the orders.
(i) Whether the learned trial magistrate properly evaluated the evidence
28. The Appellant’s complaint under this head has some force, though not the force she attributes to it. The trial court was confronted with two competing accounts, each resting on a market rental card. The 1st Respondent produced P. Exhibit No. 1, a rent card dated 17th March 1999 in the name of the late Mary Nthoki Mwongela. The 2nd Respondent, through DW1 , disputed the authenticity of that card and pointed to defects upon its face, including the absence of the stamp which its own records would ordinarily bear. The Appellant asserted a tenancy which she said was evidenced by a card that had been lost.
29. Having re-read the record, I accept that the judgment does not squarely grapple with the specific defects which the issuing authority’s own witness identified in P. Exhibit No. 1. Where the custodian of the record impugns a document said to have emanated from it, the trial court is bound to interrogate that evidence and to say why it accepts or rejects it. To that limited extent the evaluation was incomplete.
30. That said, the incompleteness did not, on the facts, occasion the Appellant any prejudice capable of founding the relief she seeks. The trial court did not enter judgment against her. It dismissed the claim brought against her. And its central legal conclusion that a rental card for a public market stall does not confer a proprietary interest in the stall was, in my respectful view, correct and is not seriously contestable. The stall is public property vested in the 2nd Respondent. What the rental card evidences is a monthly contractual tenancy between the County and the named tenant: personal to that tenant, terminable by either party on one calendar month’s notice under Condition 31 of the Conditions of Tenancy, and incapable of being sublet, assigned, transferred or otherwise parted with save with the written consent of the Council or County under Condition 16. That is the very point made in Clovers Foods (K) Limited & Another v The City Council of Nairobi & Another [2009] KEHC 2533 (KLR) upon which the trial court relied. No amount of re-evaluation of the two cards could have converted either sister’s claim into a proprietary interest in the stall.
31. This ground therefore succeeds only in part, and to no practical effect.
(ii) Whether the burden of proof was improperly shifted
32. The law on this issue is not in doubt. Under sections 107, 108 and 109 of the Evidence Act, whoever desires a court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist, and the burden of proof in a suit lies on the person who would fail if no evidence at all were given on either side. The legal or persuasive burden is fixed by the pleadings and never shifts. That is the effect of Karugi & Another v Kabiya & 3 Others [1987] KLR 347 and of Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR .
33. What does shift, as the evidence unfolds, is the evidential burden. Once a party bearing the legal burden has adduced evidence which, if unanswered, would entitle it to succeed, the evidential burden moves to the opposing party, who will fail without further evidence. Moreover, section 109 places upon any party asserting a particular fact the burden of proving that fact. Here, both the 2nd Respondent and the Appellant asserted an affirmative case of their own, namely that the Appellant was the County’s tenant of Stall No. 197. That assertion they were bound to prove.
34. Read in that light, the learned trial magistrate’s observation that the Appellant and the County had not produced any document alternative to P. Exhibit No. 1 was not a reversal of the legal burden. It was a comment on the evidential burden which their own pleaded case cast upon them. In any event, the magistrate did not find against the Appellant on the strength of that observation; he dismissed the Plaintiff’s claim for failure to discharge the burden which lay upon her throughout. There was no misdirection of the kind alleged. This ground fails.
(iii) The findings on fraud, on ownership and on credibility
35. I take the finding of fraud first. It is trite that fraud is a serious allegation which must be specifically pleaded, that full particulars of it must be set out on the face of the pleading, and that it must be strictly proved to a standard higher than a mere balance of probabilities although not to the criminal standard. The authorities are legion; it suffices to refer to Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR , where the Court of Appeal reiterated that fraudulent conduct must be distinctly alleged and as distinctly proved, and that it is not permissible to leave fraud to be inferred from the facts, and to Kinyanjui Kamau v George Kamau [2015] eKLR on the standard of proof.
36. In the present case no fraud was pleaded against the Appellant. No particulars of fraud were furnished against her or against DW1 . Neither of them was put on notice that such a case was to be met, and neither was cross-examined on any such allegation. In those circumstances the finding that the Appellant and the County’s witness had engaged in “fraudulent connivance” in respect of the rent card was made without pleading, without particulars, without the requisite standard of proof and without affording the persons impugned an opportunity to be heard upon it. It cannot stand. A finding of that gravity, made against a litigant and against a public officer in a judgment which is a public document, carries lasting consequences for reputation and for employment. It offends Article 50(1) of the Constitution. It must be, and is, set aside.
37. I turn to the complaint of contradiction. Having dismissed the Plaintiff’s suit, and having correctly held that neither daughter had established a proprietary interest, the trial court proceeded to hold that the suit stall belonged to the estate of the late Mary Nthoki Mwongela. That holding is problematic on three counts. First, no such declaration was sought in any of the pleadings. Secondly, the estate of the deceased was not a party to the suit; no administrator or legal representative of the estate was before the court, and no grant was produced. A court should not adjudicate upon the rights of persons who are not before it and who have had no opportunity to be heard. Thirdly, the holding sits uneasily with the court’s own correct conclusion that a market stall tenancy confers no proprietary interest capable of transmission as an asset of an estate. To that extent ground 3 of the Memorandum of Appeal succeeds, and the declaration relating to the estate is set aside.
38. I should make clear what does survive. The trial court’s conclusion that neither the 1st Respondent nor the Appellant established a proprietary interest in Stall No. 197 was correct and I affirm it. What is set aside is the further and unnecessary declaration vesting the stall in the estate.
39. As to ground 10, the allegation of bias and lack of fairness, an allegation of that character is a grave one and must be substantiated by material, not asserted. Nothing on this record supports it. The learned trial magistrate dismissed the claim which had been brought against the Appellant, which is a curious way of manifesting bias against her. That some of his findings were, as I have held, unsustainable is a ground of appeal; it is not evidence of partiality. This ground fails.
(iv) The additional evidence and its effect
40. The Appellant urges the Court to disregard the documentary material introduced by the 2nd Respondent through the affidavit of Joshua Otieno Ondego , on the footing that it was not produced or tested at the trial and that no leave was sought to adduce it. With respect, that submission is untenable on this record.
41. This is not a case of a party smuggling fresh material onto an appellate record. The affidavit of 10th June 2026 was filed in direct compliance with orders (i) and (iii) of this Court’s Ruling of 30th April 2026 orders made on the Appellant’s own application. She asked the Court to compel the 2nd Respondent to produce “the original copies of the rental card number 308 and any other relevant documents”. The Court acceded, and directed the production of the original card “and any other original or relevant documents in its custody relating to the tenancy of Kariokor Market Stall No. 197”, with liberty to the Respondents to file a response. The reception of the affidavit rests on section 78(1)(d) of the Civil Procedure Act and Order 42 rule 27(1)(b) of the Civil Procedure Rules, 2010, under which this Court may require a document to be produced to enable it to pronounce judgment. The principles in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR were applied at the interlocutory stage; they do not fall to be re-litigated now.
42. A party who invites the Court to compel the production of records cannot be heard to complain when the production yields material which does not favour her. The Court cannot receive such a return selectively, accepting the rental card and rejecting what accompanied it in the same custody. Nor was the Appellant without remedy: the Ruling expressly permitted responses, and she was at liberty to file a further affidavit contesting the authenticity of the instrument of 29th April 2005 or to apply to cross-examine the deponent. She did neither. In her submissions she does not deny the execution of the instrument; she argues only that it is inadmissible and, in the alternative, that it is not conclusive of ownership. The authenticity of the material is therefore uncontroverted before me.
43. What, then, is its effect? The rental card No. 308 dated 2nd May 1978 and the duplicate replacement card No. 170 issued on 24th February 2016 are both in the name “Mwongela Mary M.” and not in the Appellant’s married name. The duplicate card bears the Appellant’s own postal address and records the date of commencement of the tenancy as 2nd May 1978, “as of the original card No. 308”. The certified copy of the marriage certificate shows that the Appellant was married on 10th October 1983 in the names Mary Musuki Mwongela. Taken at its highest, therefore, the Appellant’s case is that the tenant registered on card No. 308 in 1978 was herself, in her maiden name, and not her late mother.
44. It is precisely on that footing that the instrument of 29th April 2005 becomes significant. It was executed under passport No. A347006, being the passport produced in the same bundle in the Appellant’s names. By it the vendor described herself as the “legal tenant” of Stall No. 197, sold it for Kshs. 150,000/=, recorded the surrender of stall card No. 308 and of all documents pertaining to the stall, declared that she had “nothing to claim whatsoever” from that date, and delivered immediate possession to the purchaser. If, as the Appellant asks this Court to accept, she was the tenant on card No. 308, then by that instrument she purported to divest herself of that tenancy in the year 2005 some ten years before the eviction pleaded in the suit, and two decades before this appeal. If she was not that tenant, her claim fails at the threshold. The Appellant cannot approbate and reprobate: she cannot rely on card No. 308 to found her status and simultaneously disown the instrument by which she surrendered it.
45. I am equally clear that the purported sale did not confer anything on Mr. Peter Munga Riithi. It was made without the written consent of the Council required by Condition 16 of the Conditions of Tenancy, and a public market stall is not a chattel to be traded between private persons for value. The correspondence annexed to JOO-2 shows that Mr. Riithi himself came to appreciate as much, and was by June 2005 writing to the market committee to recover his money. Whether, in consequence, the Appellant’s own tenancy was ever validly determined as against the County a surrender to a stranger not being a surrender to the landlord raises a further question which
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