keelc-2025-06390

5. His testimony was buttressed by Johnson Munyoro, his brother who told the court that he owned plot A 616 having purchased it from his late father. On cross examination he stated that he had not produced any document to confirm the plot occupied by the Defendant is A 616. 6. On his part the Defendant filed a Defence in which he insisted that the Plaintifi has no proprietary rights over Plot no 615 Kayole Infills which is the plot that he occupies and claims. In his witness statement he states that he in the lawful owner of Kayole A 1- 615 which he bought from Mercy Wangari Mwangi on 26th April, 2012. He avers that the said Mercy Wangari was a shareholder of Kayole Bidii Jua Kali Association and was allocated Plot number A 615 vide allotment letter 1440. 7. Upon cross examination, the Defendant who used to work for the city council stated that the sale agreement he had produced was executed between Mercy Mwangi and James Omboga Migiro who he claimed is his brother that he owed money. His version of the events was corroborated by Mercy Wangari who confirmed that she sold the land to the Defendant at a cost of Kshs 800,000 and further disputed that the said land was the same as A 616 and A 617. 8. DW 3 David Kamau Gitari testified that he was a caretaker to Mercy Wangari and later to Nichodemus the Defendant. He also reiterated that the plot occupied by the Defendant is A615. 9. Counsel for both parties filed submissions which the court has duly considered. Counsel for the Plaintifi submitted that the defendant in his evidence has produced a sale agreement that does not relate to the suit property being Kayole Bidii Jua Kali No A615 and further the said agreement does not list him as the buyer hence the Defendant has not established that he has no proprietary claims over the suit property. On the other hand counsel for the Plaintifi pointed out that the Plaintifi had produced an allotment letter in the name of his deceased father, copies of receipts of payment of rates over the suit property and beacon certificate whereas the defendant had not produced any documentary evidence. 10. Counsel for the defendant submitted that the suit property occupied by the Defendant and that being claimed by the Plaintifi are not one and the same on paper. That the Defendant resides on Kayole Bidii Jua Kali No A615 and not A617. He further states that A615 was lawfully acquired as evinced by the sale agreement between the Defendants brother and Mercy Wangari Mwangi who had the rights to sell. That due diligence had confirmed Mercy Wangari as the bona fide owner. 11. From the evidence and the submissions, the court distils the following issues for determination; 12. a. Whether the Defendant has trespassed on the Plaintifis property b. Whether the court should grant the orders of injunction sought In Mumbi M'Nabea v David M.Wachira [2016] eKLR the Court of Appeal discussed the standard of proof in civil liability claims in our jurisdiction and stated as follows: “ In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows: “Whoever desires any 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.” The above provision provides for the legal burden of proof. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6390/eng@2025-02-20 2

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Section 109 of the same Act provides for the evidentiary burden of proof and states as follows: “The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person” 13. Given the defence put up by the Defendants which was to the efiect that the property they are occupying is A 615 and not A 617 it was incumbent upon the Plaintifi to disprove this argument and establish on a balance of probabilities that the property occupied by the Defendant was actually A 617 in respect of which he was entitled to exclusive possession. The evidence adduced by the Plaintifi was inadequate for the court to make a determination that the plot occupied by the Defendant was A 617 and not A 615. The surveyor who prepared the beacon certificate or any other surveyor to interpret the certificate vis a vis the situation on the ground would have unlocked the impasse. 14. The Plaintifi having failed to prove that he is entitled to exclusive possession of the property occupied by the Defendant I find that he has failed to prove the case on a balance of probability. As such the suit is dismissed with costs. JUDGEMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 20TH DAY OF FEBRUARY 2025 JUDY OMANGE JUDGE In the presence of: Court Assistant Merylynn Mr. Kamau for Plaintifi https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6390/eng@2025-02-20 3

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