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ELCDismissedEnvironment and Land Appeal E016 of 2024· [2025] KEELC 5032 (KLR)

Bante v Lengesen (Environment and Land Appeal E016 of 2024) [2025] KEELC 5032 (KLR)

Environment and Land Court
3 July 2025
4,791 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner lost her plot dispute because her key documents were only marked for identification, never formally produced as evidence in court.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Meru against a judgment of the learned trial magistrate dated 9th August 2024, which had dismissed the appellant's (plaintiff's) suit seeking a permanent injunction restraining the respondent from interfering with her ownership and use of plot No. 69 Kambi Garba-Isiolo, with no orders as to costs. The appellant pleaded to be the original allottee of the plot by the defunct County Council of Isiolo in December 1985; the respondent denied her claim and asserted occupation of three-quarters of the property. On appeal, both parties canvassed three issues by written submissions: burden of proof, entitlement to the reliefs sought, and costs. The judge, Oguttu Mboya J, framed a single determinant issue: whether the appellant tendered plausible evidence before the trial court to prove her claim. Recalling the scope of a first appeal under section 78 of the Civil Procedure Act, and applying Kenneth Nyaga Mwige v Austin Kiguta & 2 others and the Supreme Court's decision in Dr. Samson Gwer & 5 others v KEMRI, the court held that the appellant's critical allotment documents - the application letter, the council minutes and the part development plan - had only been marked for identification and never formally produced as exhibits, and therefore carried no evidential value. Without them she failed to prove allotment, and the legal burden of proof, which remained static on her, was never discharged nor did the evidential burden shift to the respondent. The appeal was dismissed, the trial court's judgment affirmed, and costs of the appeal awarded to the respondents, to be agreed or taxed by the Deputy Registrar. Dated, signed and delivered at Meru on 3rd July 2025.

Key legal issues

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01

Whether the appellant discharged her burden of proving ownership/allotment of plot No. 69 Kambi Garba-Isiolo

Holding

She did not; the critical allotment documents were only marked for identification and thus had no evidential value, so the trial court's dismissal was rightly affirmed

Reasoning

The appellant claimed to be the original allottee of the plot by the defunct County Council of Isiolo. To prove allotment she needed the application, council minutes, part development plan and letter of allotment. These were only marked for identification, never formally produced as exhibits, and therefore carried no evidential value. The legal burden remained on her and never shifted to the respondent. The appeal therefore failed.

p. 7
02

Scope of the first appellate court's jurisdiction under section 78 of the Civil Procedure Act

Holding

The court must subject the whole evidence to fresh and exhaustive re-evaluation and draw its own conclusions, but should not disturb trial findings unless unsupported by evidence, perverse, based on misapprehension, or founded on an error of principle

Reasoning

This being a first appeal, the judge reiterated that the jurisdiction under section 78 of the Civil Procedure Act requires exhaustive scrutiny of the evidence tendered below with allowance for the trial court's advantage of seeing and hearing witnesses. Interference is warranted only on established grounds going to the integrity of the findings.

p. 4
03

Incidence and shifting of the legal and evidential burdens of proof

Holding

The legal burden rests on the party who would fail if no evidence were given and does not shift; the evidential burden shifts only upon discharge by credible evidence

Reasoning

The appellant argued the evidential burden had shifted to the respondent to rebut her claim. Applying sections 107, 108 and 109 of the Evidence Act and the Supreme Court's decision in Dr. Samson Gwer & 5 others v KEMRI, the court held the burden never shifted because the appellant never placed credible evidence before the court, having failed to formally produce her documents.

p. 7

Legal principles established

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  • On a first appeal the court must re-evaluate the entire evidence and reach its own conclusions, but may only depart from trial findings where they were made on no evidence, are perverse, based on misapprehension of the evidence, or rest on a demonstrable error of principle
  • A document merely marked for identification does not form part of the court record and has no evidential value until formally produced and proved as an exhibit
  • The legal burden of proof remains static on the party who asserts and would fail if no evidence were given; only the evidential burden shifts upon credible evidence being placed before the court
  • Allotment of former trust land required a written application to the designated local authority, consideration by the authority, and recommendations recorded in council minutes

Court orders

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  1. 1.The Appeal be and is hereby dismissed
  2. 2.The Judgment of the trial court be and is hereby affirmed
  3. 3.Costs of the Appeal be and are hereby awarded to the respondents
  4. 4.The Costs in terms of clause (iii) shall be agreed upon and in default same shall be taxed by the Deputy Registrar of the court in the conventional manner

Authorities

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Legislation

  • Civil Procedure Act, Cap 21 Laws of KenyaSection 78; Section 27
  • Evidence Act, Chapter 80, Laws of KenyaSections 107, 108 and 109
  • Trust Land Act, Cap 288 Laws of Kenya [now repealed]Section 53

Cases cited (14)

  • Suleiman Kasuti Murunga v IEBC & 2 others
    [2018] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Kenya Urban Roads Authority & another v Belgo Holdings Limited
    [Civil Appeal E011 of 2021] [2025] KECA 764 (KLR) (9 May 2025)
  • Peters v Sunday Post Limited
    [1958] EA 424
  • Rinya Hospital Ltd v the Town Council of Awendo
    [2010] eKLR
  • Kenneth Nyaga Mwige v Austin Kiguta & 2 others
    [2015] eKLR
  • Des Raj Sharma v Reginam
    [1953] 19 EACA 310
  • Michael Hausa v The State
    [1994] 7-8 SCNJ 144
  • Finmax Community Based Group & 3 others v Kericho Technical Institute
    [2021] eKLR
  • Billiah Matiang'i v Kisii Bottlers Ltd
    [2021] eKLR
  • Dr. Samson Gwer & 5 others v KEMRI
    [2020] eKLR
  • Raila Odinga & others v Independent Electoral & Boundaries Commission & others
    Petition No. 5 of 2013
  • Ethics & Anticorruption Commission v Eunice Mugalia & another
    KSM Civil Appeal No. 39 of 2019 [unreported]
  • Funzi Island Development Ltd v The County Council of Kwale
    [2014] eKLR
On appeal from
Magistrates' Court
Not stated
Jurisdiction invoked
Section 78 of the Civil Procedure Act, Cap 21 Laws of Kenya (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, "Bante v Lengesen (Environment and Land Appeal E016 of 2024) [2025] KEELC 5032 (KLR)", Case Analysis (2025). Environment and Land Appeal E016 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5032/eng@2025-07-03

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