Kitsao v Mirza

of the said allegations of being a caretaker, yet the appellant’s father, one Kitsao Kadenge alias Kitsao Fondo Kifalo, had sworn an adavit denying being a caretaker of the respondent or the respondent’s father. b. The learned Hon. Magistrate erred in law and in fact by not appreciating the fact that the respondent did not have any defence against the appellant’s counter-claim on the orders of adverse possession, and therefore the appellant’s claim as pleaded in his counter-claim dated 16 November 2020 was unchallenged. c. The learned Hon. Magistrate erred in law and in fact by adopting and/or accepting the contents of a letter by the area chief of Ganda location dated 15 08 August 2019 which the appellant had rejected as having been written without his involvement and which contained information that was raised at the meeting of 15 august 2019 and more so regarding the purported admission by his father that he was a caretaker on the suit premises as that information and or alleged admission was never a topic or issue for determination at the meeting neither did the respondent attend the said meeting. d. The learned Magistrate erred in law and in fact by not emphasizing the reliance of primary evidence as opposed to secondary evidence, as the adavit by the appellant’s father, which was produced as an exhibit, was more reliable than the disputed letter by the area chief of Ganda location. 4. The appellant seeks the following orders: that the appeal be allowed by setting aside the judgment of the learned Hon. Magistrate, Ms. E. K. USUI (CM), delivered at Malindi on 15 November 2023, in Civil (MCELC) No. E 24 of 2020, and substituting it with an order dismissing the respondent's suit and allowing the appellant's counter-claim, with costs. The costs of this appeal be borne by the respondent. 5. The appeal was canvassed through written submissions. I acknowledge receipt of submissions from learned counsel for the appellant, Mr. Kenga, and learned counsel for the respondent, Mr. Komora, with gratitude, as the same went a long way to assist this court reach a verdict on the issues raised in the appeal. 6. Based on the materials, the record of appeal, and the parties' submissions, the issues I frame for the determination of this court, as framed by the learned Chief Magistrate, can be condensed to the following: Who is the rightful owner of the suit premises? What is the nature of such ownership, given that the defendant pleaded the doctrine of adverse possession in the lower court? Who should bear the costs of this appeal? As an appellate court, did the trial court err in reaching the verdict it did, based on the materials and evidence placed before it? 7. As this is a rst appeal, I am cognizant that, as delineated in the decision of Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123, this court's obligation is to reevaluate the evidence, assess it accordingly, and derive its own ndings of fact and law. This court will deviate from the ndings of the trial court solely if they lacked basis in the evidence on record; if the trial court is demonstrated to have acted upon erroneous legal principles, as armed in Jabane v Olenja (1968) KLR 661; or if its discretion was exercised imprudently, As established in Mbogo & Another versus Shah (1968) EA 93. 8. According to the record of appeal, Abdulaziz Saleh Mirza adopted his statement led in court as his evidence in chief. On cross-examination, he testied that he was 49 years old, that the defendant's father was a caretaker of the suit property, and that the defendant was in occupation of the land by virtue of the land being under the care of his father. He further testied that the defendant's father had admitted before the chief that he was a caretaker. He stated that the land had been bought by his father in 1978. He also noted that the defendant began having problems with them when they were asked to vacate the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18608/eng@2025-12-11 2

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property because the plainti wanted to use the land. On cross-examination, he denied the allegation that the defendant's father had been living on the suit property before the plainti's father purchased it. 9. Zainab Swaleh adopted her court-led statement as evidence in chief. She testied that the suit property belonged to her late father, who employed the defendant's father as a caretaker. She added that after her father's death, the defendant asked her to fence the property because neighbors were letting their cows graze there. She explained that once she fenced the land and planned to farm on it, the defendant began claiming ownership through his lawyer. During cross-examination, she conrmed that the defendant's father worked as a caretaker on the property and was paid for each task. She noted they built a small house for him to avoid making him feel destitute, which was not a transfer of ownership. She also stated that the defendant claimed to have made improvements and sought compensation. A meeting was held at the chief's oce, and minutes were recorded. She denied that the minutes were altered. 10. PW3 Maliha Swaleh Mirza also adopted her court statement as his main evidence. He reiterated PW1 and PW2's testimonies. During cross-examination, he explained that the defendant was to vacate the land because it belonged to his father, who was the caretaker. He also mentioned that the defendant had driven his father away to prevent his cooperation with the plainti. 11. DW1 Mudhereheman Kitsao adopted his statement led before the court and his list of documents dated 15 November 2022. These were presented as DExh 1, 2, and 3. During cross-examination, he conrmed that he knew the plainti and had met him at the chief's oce. He also stated that he resides on the disputed land with his family and asserted that his claim is grounded in the doctrine of adverse possession. 12. Mr. Kenga, representing the appellant, argued that the main issue was that the appellant is the son of the respondent’s alleged Caretaker, Kitsao Kadenge alias Kitsao Fondo Kifalu, which means he cannot claim adverse possession over the property in question. The respondent had the burden of proving this specic fact throughout the trial, as outlined in Sections 107 and 109 of the Evidence Act. The law clearly states that anyone claiming a fact must prove it; this is specied in Section 107 of the Act. 13. Counsel asserted that the respondent wanted the court to believe that there was a caretaker relationship between his father and the appellant’s father. This case required evidence of employment, such as employment contracts, pay slips, ledger entries, or independent witness testimony, to corroborate the existence of the relationship. No iota of such evidence was adduced to substantiate this critical assertion or allegation. No independent witness was called to testify in support of such allegations, save for the respondent’s two witnesses (his sisters), who also gave hearsay evidence, alleging that the appellant’s father was their father’s Caretaker. Yet they were nowhere when the alleged non-existent engagement took place. 14. Counsel continued to state that, on the part of the Appellant, he testied in the matter by adopting his statements dated and led on 15 November 2022 and 16 November 2022, respectively. He conrmed that he was born on the suit premises in the year 1976, and to support that claim, he adopted and produced his Replying adavit, sworn and led on 16 November 2020 and 18 November 2020, respectively. The said replying adavit was produced as Dex-1. The Appellant, when faced with allegations made through the Respondent’s Supplementary adavit led on 1st December, 2020, which was sworn on 30th November, 2020, led a Supplementary adavit on 11th December, 2020, which was sworn on 9th December, 2020, denying that his father, above named, was a Caretaker of the respondent or the respondent’s father. The said Supplementary adavit was produced as Dex-2 Though there was an attachment to the Supplementary adavit (Dex-2) of an adavit by the Appellant’s father, one Kitsao Kadenge alias Kitsao Fondo Kifalu, who denied ever being a Caretaker of the Respondent or the Respondent’s father, the said adavit, which was sworn on 30th November, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18608/eng@2025-12-11 3

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2020 and led in Court on 11th December, 2020 as an attachment to the Supplementary adavit, was produced as Dex-3 The Appellant, while testifying in the matter, conrmed that his father had two names, that is, Kitsao Kadenge and Kitsao Fondo Kifalu, and that explains why Dex-3, his father’s adavit, bears the names of Kitsao Kadenge alias Kitsao Fondo Kifalu. The Respondent did not bother to call the maker and/or author and/or deponent of this adavit (Dex-3) to cross-examine him on the contents of the same, especially on the truthfulness of the claims made therein. Therefore, the evidence tendered through the said adavit remains unchallenged. Yet the respondent’s claim was founded on the allegations that the appellant’s father was a Caretaker of the respondent or the respondent’s father on the suit premises. 15. Regarding allegations that a meeting had been held before the chief to resolve the matter, the appellant denied them through a Supplementary Adavit produced as Dex-2. 16. Mr. Kenga contends that the respondent did not controvert the claim of adverse possession and that it ought to have succeeded. 17. Mr. Komora agrees with the trial court’s conclusions. He noted that the appellant testied alone in the lower court and did not call his father to contradict the claim that he was working for the respondent's father. After the respondent’s father passed away, the respondent kept involving the appellant’s family, including the appellant himself, who even delivered fruits to the respondent’s sister at Shella. This was simply a denial of a fact, and although the father was present in court, the appellant chose not to call him as a witness for cross-examination. 18. In the counterclaim for adverse possession, Mr. Komora argues that the Civil Procedure Rules require an application for adverse possession to be supported by a title deed extract. However, in this case, the Appellant neither submitted a title deed extract nor provided details of the land claimed through adverse possession. (Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others [2018] eKLR) 19. Mr. Komora further contends that, strictly speaking, to succeed in a claim for adverse possession, one must prove that he has occupied the land openly, that is, without force, without secrecy, and without the landowner's license or permission, with the intention of having the land. There must be an apparent dispossession of the land by the landowner. These elements are contained in the Latin phrase nec vi clam nec precario. The additional requirement is animus possidendi, or the intention to have the land (Samuel Kihamba v Mary Mbaisi [2015] eKLR). 20. Currently, the appellant resides on the suit property with the owner's permission, living there with his family. The respondent visits and enters the property without the appellant objecting. Additionally, during the hearing, the appellant did not deny having an adverse possession claim in ELC case No. 54 of 2020 (OS). How can someone live simultaneously on two dierent properties for 12 years? 21. Counsel further argues that the title document serves as prima facie evidence of land ownership and is conclusive proof of proprietorship. It also arms that the registered owner is entitled to the right to peaceful and quiet enjoyment of their land. Refer to Margaret Njeri Wachira v Eliud Waweru Njenga [2018] eKLR, and see also Kiplangat Shelisheli Mutarakwa v Joseph Rotich Kones [2018] eKLR. 22. From the record and proceedings in the Lower Court, it is undisputed that the respondent claims the suit property as the Administrator of the estate of Saleh Ali Mirza, through transmission. 23. It is also not disputed that the appellant claims the suit property in the counterclaim by virtue of adverse possession. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18608/eng@2025-12-11 4

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24. After weighing the two conicting claims, the trial magistrate arrived at the following conclusion: “ Section 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya), provides: "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. "It is the plaintis claim that the suit property belonged to his late father who purchased the same from one Saleh Binti Faraj vide a transfer that has been produced before court. The plainti states that after such purchase, the deceased employed the defendant's father as a caretaker of the property, and it is by virtue of that employment that the defendant came into occupation of the suit property. The plainti's allegations are vehemently refuted by the defendant who states that he has acquired ownership rights to the property by virtue of the doctrine of adverse possession. The plainti has produced a postal search which indicates that it is his deceased father who was the registered owner of the suit property. His evidence is further corroborated by that of his two siblings PW1 and PW2 who state that the suit property belonged to their late father. That after his demise they could frequently visit the property and the caretaker who is the defendant's father. That during one of their visits the defendants father informed them that he had disagreed with the defendant over his use and occupation of the suit property. The matter was escalated to the chief's oce where the plainti and the defendant were both present. The court has considered the evidence produced by both parties and the decision made by the Chief The defendant herein was present during the proceedings at the Chief's oce and presented his evidence. The decision by the chief was that the land belonged to the deceased. The plainti was asked to compensate the defendant for the trees planted on the suit property. The defendant however still maintains that he has possessed ownership rights to the suit property by adverse possession while the plainti insists the same belongs to the deceased by purchase and subsequent registration. This are two distinct claims.” 25. After reviewing the manner in which the doctrine of adverse possession is established under the law and in light of the various judicial precedents she referenced, the esteemed magistrate concluded as follows: “ The proceedings before the Chief are a clear indication that the defendant was in occupation of the land by virtue of his father having been the caretaker to the same. The fact that the defendant's father was on the land with the permission of the owner of the land distinguishes the claim for adverse possession instantly. In the case of Samuel Miki Waweru vs. Jane Njeru Richu, Civil Appeal No. 122 of 2001, the Court of Appeal held that: "...it is trite law a claim of adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner of, or in (accordance with) provisions of an agreement of sale or lease or otherwise. Further, as the High Court correctly held in Jandu v Kirpal [1975] EA 225, possession does not become adverse before the end of the period for which permission to occupy has been granted.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18608/eng@2025-12-11 5

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26. After weighing independently, the evidence on record and the relevant applicable law, the suit property is registered in the name of Saleh Ali Mirza, deceased. The respondents and the other beneciaries are entitled to this property through transmission. This, as I have found, is not disputed. 27. The dispute revolves around whether the appellant has a valid claim to the property through adverse possession. On appeal, it was contended that the learned magistrate misunderstood both the facts and the law in concluding that the doctrine of adverse possession did not apply to the appellant, and that the proceedings before the chief were not relevant. 28. An analysis of the events, the proceedings led by the chief, and the evidence from three witnesses for the respondent clearly shows that the appellant's father worked as a caretaker for the respondent's property. He was allowed to live there, and in fact, the respondent built a house for him. The appellant also came onto the property based on the consent given to his father. 29. The record shows that he removed his father from the property to bolster his adverse possession claim, prompting the area chief’s involvement, who ultimately ruled that the land belonged to the respondent's father (deceased). 30. Adverse possession, therefore, could not apply, and, as the trial magistrate correctly ruled, citing Samuel Miki Waweru v Jane Njeru Richu, Civil Appeal No. 122 of 2001: “ …it is trite law a claim of adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner of, or in (accordance with) provisions of an agreement of sale or lease or otherwise. Further, as the High Court correctly held in Jandu v Kirpal [1975] EA 225, possession does not become adverse before the end of the period for which permission to occupy has been granted.” 31. See also Wambugu v Njuguna (1983) KLR 172, where the court held; “ Where the claimant is in exclusive possession of the land with leave and license of the appellant in pursuance to a valid agreement, the possession becomes adverse and time begins to run at the time the license is determined.” 32. It was up to the appellant to prove the claim of adverse possession, as correctly held by the trial court, but he did not. 33. The respondent asserts that the appellant has an additional suit alleging adverse possession, which the respondent denies. While acknowledging that the issue of jurisdiction was not raised in this appeal, it is now established that the Magistrate's Court lacks jurisdiction to entertain claims based on adverse possession. As claried by the Court of Appeal in Sugawara v Kiruti (sued in her capacity as the administratrix of the estate of Mutarakwa Kiruti Lepaso, alias Mutaragwa Kiruti Lepaso, alias Mutaragwa Kiroti Leposo, and in her personal capacity) & 3 others [2024] KECA 1417 (KLR), a decision issued by the Court of Appeal on October 11, 2024, as follows: “ Having said that, did the Magistrates’ Court have jurisdiction to hear and determine claims for adverse possession? The question of whether the Magistrates’ courts have jurisdiction to hear and determine some claims has recently become a vexing question for courts following the establishment of the Environment and Land Court under article 162(2)(b) of the Constitution 2010 to hear and determine disputes relating to the environment, use and occupation of and title to land, and the expansion of the hearing and determination of land disputes to the Magistrates courts. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18608/eng@2025-12-11 6

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32. Section 13 of the Environment and Land Court Act provides that: “The court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) 33. In exercise of its jurisdiction under article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes— (a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals, and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private, and community land and contracts, choses in action, or other instruments granting any enforceable interests in land; and (e) any other dispute environment and land.” relating to Whereupon, section 26(3) and (4) of the Environment and Land Court Act, 2011 provides that: “(3) The Chief Justice may, by notice in the Gazette, appoint certain magistrates to preside over cases involving environment and land matters of any area of the country. (4) Subject to article 169(2) of the Constitution, the Magistrate appointed under sub-section (3) shall have jurisdiction and power to handle — a. disputes relating to oences dened in any Act of Parliament dealing with environment and land; and b. matters of civil nature involving occupation, title to land, provided that the value of the subject matter does not exceed the pecuniary jurisdiction as set out in the Magistrates' Courts Act.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18608/eng@2025-12-11 7

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34. These provisions are replicated under section 9(a) of the Magistrates’ Courts Act, 2015, which gives the Magistrate’s Court jurisdiction over environment and land matters. It is provided inter alia that: “A magistrate's court shall, in the exercise of the jurisdiction conferred upon it by section 26 of the Environment and Land Court Act (No 19 of 2011) and subject to the pecuniary limits under section 7(1), hear and determine claims relating to — i. environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals, and other natural resources; ii. compulsory acquisition of land; iii. land administration and management; iv. public, private, and community land and contracts, choses in action, or other instruments granting any enforceable interests in land; and v. environment and land generally. 35. Over time the Chief Justice has variously gazette notices, and made appointments pursuant to section 26(3) and (4) of the Environment and Land Court Act, 2011. 36. Subsequently, the jurisdiction of the Magistrates’ Courts to hear and determine disputes relating to environment and the use and occupation of, and title to, land was endorsed by this court in the case of Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others [2017] eKLR. 37. However, the distinctive issue in this appeal is concerned with a claim for adverse possession and whether, under section 9(a) of the Magistrates’ Courts Act, magistrates can determine such claims. It is instructive that, a consideration of jurisprudence on this issue since the expansion of environment matters to Magistrates’ courts clearly demonstrates that the decisions on this issue are not in accord. A sampling of case law on the question makes this quite evident. 38. For instance, there are decisions that have reached the conclusion that the Magistrates' Court has jurisdiction to hear claims for adverse possession. For instance, in the case of Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & another [2020] eKLR, DO Ohungo, J held: “Based on the express provisions of section 26(3) and (4) of the Environment and Land Court Act, 2011 and section 9(a) of the Magistrates’ Courts Act, 2015, the principles of interpretation of the Constitution as well as the principles of the Constitution such as devolution, access to services and access to justice for all persons, to nd as I hereby do, that so long as presided over by a magistrate who is duly gazetted under section 26(3) of the Environment and Land https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18608/eng@2025-12-11 8

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Court Act, 2011 and who has the requisite pecuniary jurisdiction, magistrates’ courts have jurisdiction and power to handle cases involving claims of adverse possession.” 39. This decision was followed in the cases of Philip Kithaka v Mercy Karimi Nyaga [2021] eKLR and Christopher Kangogo Cheboiboch v Susan Chepichi Chepkiyeng [2021] eKLR both decisions were rendered by LN Mbugua, J. 40. Other decisions of the Environment and Land Court hold contrary views, which seems to be the more predominant position. It was held in the case of Jesee Njoroge Gitau v Kibuthu Macharia & another [2019] eKLR, that: “It is clear from the above provisions of the law that the Magistrate’s court has no jurisdiction to try matters where a party is seeking adverse possession. Indeed, if both matters had been led in this court, the best order suited to issue upon this application would have been an order for consolidation of both the matters. However, this is not the case in question.” 41. In the case of Michael Chebii Toroitich v Peter Mogin Yatich Chebii [2013] eKLR, M Sila, J held: “The matters in issue in Iten RMCC No 9 of 1994 and in the land disputes tribunal, in my view, were whether the defendant holds a half share of the land in trust for the plainti. The question whether the plainti is entitled to the suit land by way of adverse possession never arose in those proceedings. Indeed, they could not have arisen, as the Magistrate's court does not have jurisdiction to entertain a claim of adverse possession. Neither could adverse possession have been made a ground of attack or defence in those two proceedings. The issue of adverse possession could not have been raised and was never raised in those proceedings.” 42. Similarly, in the case of Njoki Wainaina v Josephat Thuo Githachuri & 3 others; National Land Commission & another (Interested Parties) [2021] eKLR Mboya, J held that: “The magistrate’s court is not seized with jurisdiction to adjudicate upon claims founded on adverse possession on the face of the explicit provisions contained in sections 37 & 38 of the Limitation of Actions Act.” 43. Recently, in the case of Reuben v Mwangangi & 7 others (Environment & Land Case E011 of 2023) [2023] KEELC 21899 (KLR), Yano, J expressed: “I am aware that there exists within the magistrate’s court, duly gazetted magistrates who are granted jurisdiction and power to handle cases involving occupation of and title to land. I am, however, not persuaded that the magistrates' courts have jurisdiction to adjudicate title on account of adverse possession. It is therefore my nding that the learned trial magistrate rightly https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18608/eng@2025-12-11 9

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declined jurisdiction over the respondents’ claim of adverse possession”. 44. The controversial question of jurisdiction of the Magistrates’ Courts in claims for adverse possession emanates from sections 37 and 38 of the Limitation of Actions Act, where it is specically provided that such claims are to be heard by the “High Court”. 45. In particular, section 38 of the Limitation of Actions Act provides: “(1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land. (2) ………………………… (3) …………………………… (4) The proprietor, the applicant, and any other person interested may apply to the High Court for the determination of any question arising under this section. (5) ………………………………” 46. In other words, reference is to the “High Court” as the court to which such cases are heard, and given the dictates of the Constitution set out above, this should be construed to mean the “Environment and Land Court”, as being the court donated with jurisdiction to hear and determine matters pertaining to adverse possession of land. The eect of this interpretation is that it is only the Environment and Land Court established under article 162(2)(b) that is mandated to hear these cases. So that, notwithstanding the expansion of the jurisdiction of environment and land usage to Magistrates Courts, it is distinctive that under section 9(a) of the Magistrates Courts Act, various matters are specied for determination, but claims for adverse possession are not included. 47. In the case of Republic v Karisa Chengo & 2 others [2017] eKLR, this Court held that: “A court’s jurisdiction ows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 48. It is our view that, if it was intended that claims for adverse possession be determined by the Magistrates’ Court, nothing would have been easier than for Parliament to have expressly enacted such a provision. So that in view of the express provisions of the law, a strict interpretation of section 38 would https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18608/eng@2025-12-11 10

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mean that hearing and determination of such matters is specically limited to the Environment and Land Court to the exclusion of the Magistrates’ Court. 34. 49. We come to this conclusion also bearing in mind that the jurisdiction of Magistrates’ Courts is largely determined by the pecuniary interest designated for determination by each level of the Magistracy specied in the hierarchy of courts, in terms of section 7 of the Magistrates' Courts Act. In claims for adverse possession where the value of the land in question may be unknown, as in the instant case, it could be that by the time of ling, the value of the land subject of determination may be far in excess of the particular Magistrates’ Court’s pecuniary jurisdiction, which for all intents and purposes was not what was intended by the Act. 50. In the circumstances, in view of the express provisions of section 38 of the Limitation of Actions Act, as did the Environment and Land Court, we nd that Magistrates’ Courts do not have jurisdiction to determine the claims of adverse possession. As a consequence, the trial magistrate in the instant case rightly disregarded hearing and determining it. In the result, this ground is without merit and is accordingly dismissed.” It should be noted that the COA decision mentioned above was appealed to the Supreme Court through a Petition of Appeal dated November 14, 2024. It is reported as Sugawara v Kiruti (sued in her capacity as the administratrix of the estate of Mutarakwa Kiruti Lepaso, also known as Mutarakwa Kiroti Lepaso, and in her personal capacity) & 3 others [2025] KESC 9 (KLR). The Petition of Appeal was summarily dismissed by the Supreme Court on March 21, 2025, as follows: “ From the long history of the matter set out above, there is clearly no live controversy relating to constitutional interpretation or application. The issues related to ownership of the suit premises which have substantively been determined from the trial court, the High Court, then mandated to hear environment and land matters, and later at the Court of Appeal. In the circumstances, we lack jurisdiction to delve into the issues now before us and we must therefore down our judicial tools.” 35. In light of the preceding considerations, the appeal currently under review lacks substantive merit. The esteemed magistrate appropriately focused her attention on the pertinent legal principles and the evidence presented, ultimately reaching a justied judgment. I nd no impropriety in the manner of her conclusion or in the orders issued, which shall remain unchanged. 36. Consequently, the current appeal is dismissed with costs. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON DECEMBER 11, 2025. E. K. MAKORI JUDGE In the presence of: Mr. Kenga for the Appellant Jill: Court Assistant In the absence of: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18608/eng@2025-12-11 11

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Mr.Komora for the Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18608/eng@2025-12-11 12

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