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ELCDismissed· [2025] KEELC 2976 (KLR)

Wanjiku v Subuku Farmers Co-operative Society Ltd (Environment and Land Appeal E001 of 2023) [2025] KEELC 2976 (KLR)

Environment and Land Court
27 March 2025
2,172 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Nyahururu dismissed a landowner's appeal, confirming she lost because she lacked evidence, not because the trial was unfair.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Nyahururu against a judgment of the magistrate's court delivered on 15.12.2022, which allowed a plaintiff's claim for a declaration of ownership of Laikipia/Marmanet/Siron Block 1/81 (Subuku), an order to vacate, a permanent injunction and costs. The defendant, who had filed a defence and counterclaim alleging that the plaintiff's title was fraudulently obtained from her mother's parcel and, alternatively, claiming adverse possession since the 1970s, appealed on ten grounds, principally that the trial was unfair because she was unrepresented, that her counterclaim and issues of limitation, res judicata (Nyahururu SRM Civil Case No. 79 of 1991), the respondent's defunct status and reports from the Land Registrar and Surveyor were not determined. Lucy N. Mbugua J, applying the first appellate duty to re-evaluate evidence, found the trial fair: the appellant fully participated, filed a defence and counterclaim, and the trial court considered her witness statement and documents. The court held, citing Bullen and Leake & Jacob's as adopted in Samson Emuru and Galaxy Paints, that issues flow from pleadings; the appellant's evidence did not support her allegations of fraud, adverse possession or res judicata, and limitation and the respondent's status were never pleaded. It further held that submissions cannot substitute evidence and that the burden of proof under Section 107 of the Evidence Act could not be shifted by calling for official reports. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Fair trial and right to be heard for an unrepresented litigant

Holding

The trial was fair; the appellant fully participated by filing a defence and counterclaim, participating in an interlocutory application, and the court considered her witness statement and documents despite non-production

Reasoning

The court noted the appellant attended court, filed a well-articulated defence and counterclaim, participated in the prosecution of the application dated 24.5.2021, and that pre-trial directions and hearing dates were fixed in her presence. The trial court considered her case on her witness statement and documents. Absence of legal representation did not vitiate the trial.

p. 4
02

Res judicata, fraud, adverse possession and limitation

Holding

No tangible evidence supported res judicata, fraud or adverse possession; limitation and the respondent's status were not pleaded and could not be raised on appeal

Reasoning

The appellant's pleadings alleged fraud and, in the alternative, adverse possession, but her evidence did not support those averments. Nothing showed a determination in Nyahururu SRM Case No. 79 of 1991. Limitation and the alleged defunct status of the respondent were not pleaded; submissions cannot substitute evidence.

p. 4
03

Burden of proof and calling for Land Registrar/Surveyor reports

Holding

The appellant bore the statutory duty to prove her case and could not shift that burden to the court or other parties

Reasoning

Relying on Section 107 of the Evidence Act and Jennifer Nyambura Kamau v Humphrey Mbaka Nandi, the court held that cases belong to the parties; the appellant was obliged to prove her allegations, and the trial court did not err in declining to call for reports on her behalf.

p. 5

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and re-analyse the evidence and determine whether the conclusions of the trial court should stand
  • Submissions cannot substitute evidence; adducing evidence through submissions is impermissible
  • Issues for determination flow from the pleadings, and a court cannot determine issues not pleaded or made a subject of contest
  • He who alleges bears the burden of proof and cannot shift it to the court or third parties

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 25(c), Article 50(1)
  • Evidence ActSections 107, 109, 112
  • Land Registration ActSections 24, 25

Cases cited (9)

  • Assia Pharmaceuticals v Nairobi Veterinary Centre Ltd
    (2000) eKLR
  • Silantoi Ene Santa Nkoipiyia & Another v Natasha Ene Santa Ngopia
    (2021) eKLR
  • Vijay Morjaria v Nansingh Madhusingh Darbar & Another
    (2000) eKLR
  • Joyce Musyawa Kilungu v Evastus Kilungu
    (2019) eKLR
  • Selle and Another Versus Associated Motor Boat Company Ltd & Others
    [1968] EA 123
  • Abok James Odera t/a A.J Odera & Associates Vs John Patrick Machira t/a Machira & Co. Advocates
    (2013) eKLR
  • Samson Emuru v Ol Suswa Farm LTD
    [2006] eKLR
  • Galaxy Paints Company Ltd V Falcon Guards Ltd
    [2000] eKLR
  • Jennifer Nyambura Kamau v Humphrey Mbaka Nandi
    [2013] eKLR
On appeal from
Magistrate's Court, Nyahururu
Suit instituted by plaint dated 24.5.2021 (number not stated); related prior case Nyahururu SRM Civil Case No. 79 of 1991
Jurisdiction invoked
First appellate jurisdiction over the magistrate's court (ELC Act); judgment self-identifies: 'This being a first appeal'

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wanjiku v Subuku Farmers Co-operative Society Ltd (Environment and Land Appeal E001 of 2023) [2025] KEELC 2976 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2976/eng@2025-03-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.