Chemutai v Kenya Women Microfinance Bank PLC (Land Case Appeal E013 of 2025) [2026] KEELC 2932 (KLR)

of Kshs. 2,450,000/- and paid a sum of Kshs. 612,500/- representing 25% of the auction price. It was pleaded that the defendant failed to pay the balance within 90 days and the sale was void. Further, that the defendant then evicted the tenants and put in her own tenants who started paying rent. The Respondent maintained that it had been deprived of ownership of the suit properties and lost mesne profits for which he sought Kshs. 525,000/-. 3. The Appellant filed a statement of defence dated 26th March 2024 where she urged that she was no longer in occupation of the said land and further, that at no point did she ever collect any rent, as alleged by the Respondent. She stated that she had long vacated the said land after defaulting to pay the entire sum, as per the auction. Hearing at the trial court 4. PW1 was Harun Wamae, the Regional Manager of the Plaintifi manning South Nyanza Region. He testified that in 2016, the Plaintifi granted a loan of Kshs. 3,925,007/= to Nelson Onyango Nyariere and Loma Anyango Onyango over LR NO. Kamagambo/Kongundi/1990,1529 & 2098. A legal charge was drawn over the aforesaid properties and the Chargor defaulted and hence, the aforesaid properties were ofiered for public auction. That the Defendant bid for the properties and was declared the highest bidder at Kshs. 2,450,000/=. As per the auction rules, the Defendant deposited a sum of Kshs. 612,500/= being 25% at the fall of the hammer. The balance was supposed to be paid within 90 days and upon expiry of the 90 days, the Defendant failed to raise the 75% of the purchase price, hence she forfeited the deposit. The Plaintifi communicated the information to the Defendant and the Defendant moved swiftly and evicted the Chargor from the demised premises and installed her own tenants in the said premises. He stated that the Defendant started collecting rent of Kshs. 17,500/= per month, since July 2021, which she has confirmed doing to date. He stated that the Defendant failed to pay the total purchase price as per the terms of the auction. He urged that the Plaintifi prayed that the defendant pay to the Plaintifi a sum of Kshs. 17,500/= totalling now to Kshs. 525,000/=. 5. During cross examination, he stated that he was claiming rent since 2021 when she had been collecting. That when he visited the premises the new defendants were paying the defendant and that the visit was after the loanee made a complaint. He stated that the property had not been auctioned and the issue was the rent collected. 6. DW1 was the Appellant, Vibian Chemutai, then the defendant. She stated that sometime in the year 2020 she participated in an auction sale of Land Parcels No. Kamagambo/Kongundi/1990, 2098 & 1529 in which she emerged the highest bidder. Having won the auction, she was supposed to pay the sum of Kshs,2,450,000/= and she paid a sum of Ksbs.612.500/- representing 25% of the auction price at the fall of the hammer. Unfortunately due to financial challenges, she defaulted and had to forfeit Kshs.612, 500/= to the plaintifi. She urged that she had never collected rent on the said properties and that neither was she staying in the house. She denied evicting the Chargor from the suit property, or having installed her own tenants on the suit property. 7. During cross examination, she stated that she did not have control of the property after making the deposit. That none of her property was on the premises and further, that she did not collect rent from the property 8. Upon considering the testimonies of the witnesses and the evidence tendered in court, the trial magistrate entered judgment in favour of the Respondent. 9. Being aggrieved with the decision of the trial court, the Appellant instituted this Appeal vide the memorandum of Appeal dated 6th May 2025 premised on the following grounds; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2932/eng@2026-04-20 2

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10. 1. The Learned Trial Magistrate erred in law and fact by not holistically considering evidence adduced by the Appellant afirming that there is no cause of action against her. 2. The Learned Trial Magistrate Erred in law and fact in failing to appreciate that the Appellant herein upon defaulting in making payment as per terms of the auction, had vacated the suit land way before an eviction notice was issued. 3. The Learned Trial Magistrate Erred in law and fact in failing to appreciate the provision of section 107(1) of the evidence act which obliged the Respondent to prove that the Appellant herein sent away the initial tenants and that was now collecting rent from new tenants. 4. The Learned Trial Magistrate Erred in law and in fact in considering that there is no iota of evidence showing that the Appellant herein at any juncture managed and or controlled the said premises in any way. 5. The Learned Trial Magistrate Erred in law and fact in awarding the Respondent herein a mesne profit of Kshs. 525,000/- in light of the evidence adduced and yet the Respondent herein had already vacated the suit land to her home in Homa bay even before the alleged eviction notice. 6. The learned trial magistrate erred in law and misdirected himself by failing to find that the Respondent had failed to demonstrate through evidence that the Appellant herein was still in occupation of the land nor did she ever place her own tenants in the said premises. 7. That the learned magistrate erred in law and in fact in failing to properly and exhaustively evaluate the evidence on record and ignoring the Appellants witness statement and submissions thus arriving at an unfair decision. The parties were directed to file submissions on the Appeal. The Appellant filed submissions dated 16th December 2025 whereas the Respondent filed submissions dated 23rd January 2026. Appellants’ Submissions 11. On Whether the Appellant was in occupation of the aforementioned land, Counsel urged that it was undisputed that the Appellant was once a tenant on the houses situated on the suit parcel, and that even as a tenant, when the owner of the suit property auctioned the same, the Appellant emerged as a winner of the suit parcel during an auction. Further, that it was undisputed that the Appellant paid a sum of Kshs. 612,500 representing 25% of the auction price at the fall of the hammer. 12. Counsel urged that it was the Respondents’ testimony that he received a complaint from the original owner of the Respondent’s alleged occupation and when he went to visit the said land in 2023, the Appellant was never in occupation of the said land. He urged that he was bafied as to how the trial court afirmed that the defendant was in occupation of the land after it was repossessed. Counsel urged that the Appellant, upon defaulting, and when she could no longer stay on the land, left for her home in Homa Bay where she resides up to now. He reiterated that the court erred in law and fact in afirming that the Appellant herein was still in occupation of the said land and proceeding to issue eviction orders against the Appellant. 13. On whether the Appellant controlled or managed the sad premises, Counsel urged that at no point was there any receipt availed or witnesses called to prove the assertions that the Appellant was collecting rent. Counsel cited Section 107 (1) of the evidence act on burden of proof and urged that the mere mention that there was collection of rent is not proof that rent was being collected. He urged that awarding the rental income was against the rules of evidence. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2932/eng@2026-04-20 3

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14. On whether the Respondent was entitled to mesne profits, Counsel cited Section 2 of the Civil Procedure on the definition of mesne profits, and cited the case of Karanja Mbugua & Another vs. Marybin Holding Co. Ltd (2014) eKLR, where it was stated that mesne profits, being special damages must not only be pleaded but also proved, as shown by the provisions of Order 21, Rule 13 of Civil Procedure Act. Counsel urged that the Respondent sought mesne profits and loss of rental income since 2021, seeking an award of Kshs. 525, 000/-. That from the evidence on record there is no receipt or statement justifying how the Respondent had come up with such a figure. Counsel submitted that the learned magistrate erred in law in allowing the Respondent’s claim, without suficient proof of the said allegation, contrary to the provision of section 107 of the evidence act. Counsel urged the court to allow the Appeal. Respondents’ Submissions 15. Learned counsel for the Respondent submitted that it is undisputed that the Appellant was in occupation of the suit properties after the auction. The Appellant expressly admitted in her testimony that she remained on the premises until 2022. Further, that it is not contested that the Appellant collected rent from the tenants occupying the suit properties from July 2021 while remitting nothing to the Respondent. Counsel urged that an admission is the best form of evidence and further, that under section 120 of the Evidence Act, Cap 80 Laws of Kenya, and a party is estopped from denying facts which they have expressly admitted. Counsel posited that the trial court therefore correctly relied on the Appellant’s own admission and the uncontroverted evidence of the Respondent to find that the Appellant remained in possession and control of the suit properties after the auction. 16. Counsel urged that the Appellant’s position that payment of the 25% deposit at the auction conferred upon her possessory or proprietary rights over the suit properties is legally untenable. That an auction purchaser acquires no proprietary interest in land until the sale is completed and transfer duly registered in accordance with the Land Registration Act. He cited Mbuthia v Jimba Credit Finance Corporation & Another (1988) KLR 1 and National Bank of Kenya Ltd v Pipelastic Samkolit (K) Ltd & Another (2001) eKLR in this regard. 17. Counsel urged that equity does not aid the indolent or the dishonest. That the Appellant remained in possession, collected rent, and enjoyed the benefits of the suit properties without paying rent or completing the purchase. He cited the case of Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR and urged that allowing the Appeal would unjustly enrich the Appellant at the expense of the Respondent and sanction unlawful conduct. 18. Counsel urged that mesne profits are defined under Section 2 of the Civil Procedure Act and further, that the evidence on record clearly established that: The Appellant was not the registered owner of the suit properties; The sale by auction was never completed; The Appellant nonetheless took possession and collected rent from tenants; and The Respondent was thereby deprived of rental income. Counsel urged that the Appellant therefore occupied the suit properties as a trespasser and was liable to account for mesne profits. He cited the case of Attorney General v Halal Meat Products Ltd [2016| eKLR and urged that the Respondent tendered evidence showing the monthly rental income of Kshs. 17,500/= and, the duration of occupation being thirty (30) months which evidence was not rebutted. 19. Counsel urged that the Respondent specifically pleaded mesne profits and led evidence through its witness on: The period of unlawful occupation; the monthly rental income; and the total loss sufiered. He cited Kenya Hotel Properties Ltd v Willesden Investments Ltd [2009] KLR 126 and submitted that the Appellant did not tender any evidence to dispute the rental income of Kshs. 17,500/= per https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2932/eng@2026-04-20 4

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month or the duration of occupation. In such circumstances, the trial court was entitled to accept the Respondent’s evidence as uncontroverted. 20. Counsel urged that there is no basis in law or fact for this Honourable Court to interfere with the said award and prayed that the court dismiss the Appeal with costs Analysis and determination 21. This being an Appeal, I must state the duty of the Appellate court. In Williamson Diamonds Ltd and another v Brown [1970] EA 1, the court held that: “ The appellate court when hearing an Appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.” 22. Further, in PIL Kenya Limited v Oppong [2009] KLR 442, it was held that: “ It is the duty…of a first appellate court to analyze and evaluate the evidence on record afresh and to reach its own independent decision, but always bearing in mind that the trial court had the advantage of hearing and seeking the witnesses and their demeanour and giving allowance for that”. 23. There are two issues that arise for determination; 1. Whether the trial court erred in awarding mesne profits 2. Whether the trial court erred in issuing eviction orders Whether the trial court erred in awarding mesne profits 24. The crux of the Respondents’ claim in the trial court was that the Appellant had bid for the suit property during the auction, paid the deposit but failed to complete the purchase transaction. The Respondent alleged that the Appellant then took occupation of the property, evicted the tenants and installed her own, and began collecting rent from June 2021. 25. The Plaintifi plead that the Appellant had been collecting rent since the year 2021, of Kshs. 17,700, a very specific figure. It is trite that he who alleges must prove. This position is succinctly captured in Sections 107, 109 and 112 of the Evidence Act. Section 107 provides as follows: 26. “ (1) 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. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” Sections 109 and 112 of the same Act state as follows: “ 109. 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. …… https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2932/eng@2026-04-20 5

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112. 27. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” The majority decision of the Supreme Court in Presidential Election Petition No. 1 of 2017 - Raila Amolo Odinga & Another vs IEBC & 2 Others (2017) eKLR had the following to say on the evidential burden of proof; “ Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant through a trial with the plaintifi, however, “depending on the efiectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.” 28. Similarly, in the case of: Gichinga Kibutha – Versus - Caroline Nduku (2018) eKLR the Court held that:“ It is not automatic that instances where the evidence is not controverted the Claimants shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.” 29. Additionally, mesne profits are special damages, which, accordingly, must be specifically pleaded and proved. In the case of Njeri Kimani Vs Joseph Njoroge Murigi and others HCCC No. 819 of 2009 it was held, “ A claim for mesne profit is the nature of special damages, which require to be pleaded and strictly proved.” 30. Order 21 Rule 13 of the Civil Procedure Rules provides as follows: 13. (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the court may pass a decree- (2) 31. (a) for the possession of the property; (b) for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an inquiry as to such rent or mesne profits; (c) directing an inquiry as to rent or mesne profits from the institution of such suit until(i) the delivery of possession to the decree-holder; (ii) the relinquishment of possession by the judgment- debtor with notice to the decree-holder through the court; or (iii) the expiration of three years from the date of the decree, whichever event first occurs. Where an inquiry is directed under sub rule (1) (b) or (1) (c), a final decree in respect of the rent and mesne profits shall be passed in accordance with the result of such inquiry. I have perused the record of Appeal and from the proceedings, pleadings and documentary evidence, there was no evidence tendered as to the payment, collection or receipt of rent. PW1 testified that when https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2932/eng@2026-04-20 6

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he visited the property, he did not find the Defendant, now the Appellant. He further stated that he found a tenant who informed him that the Appellant was collecting rent. The trial court then relied on this testimony, finding it suficient proof of occupancy and collection of rent. It is my considered view that the trial court erred in its finding in this regard. 32. Section 2 of the Civil Procedure Act Cap 21 of the Laws of Kenya defines mesne profits as follows:“ mesne profits”, in relation to property, means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but does not include profits due to improvements made by the person in wrongful possession;’ 33. In the case of Peter Mwangi Mbuthia & another v Samow Edin Osman [2014] eKLR, the Court of Appeal while dealing with the issue of mesne profits held as follows: “ We agree with counsel for the Appellants that it was incumbent upon the Respondent to place material before the court demonstrating how the amount that was claimed for mesne profits was arrived at. Absent that, the learned judge erred in awarding an amount that was neither substantiated nor established.” 34. The only evidence that was remotely related to the alleged collection of rent was hearsay evidence. In the case of Kinyathi v Republic [1984] e KLR the Court of Appeal had this to say of hearsay evidence: “ “ 4. Hearsay or indirect evidence is the assertion of a person other than the witness who is testifying ofiers as evidence of the truth of that asserted rather than as evidence of the fact that the assertion was made. It is not original evidence 5. The rule against hearsay evidence is that a statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of stated facts. … 7. 35. The evidence of a statement made to a witness by a person who is not called as a witness may or may not be hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is not admissible when it is proposed to establish by the evidence not the truth of the statement, but the fact that it was made”. It follows that the evidence on the occupation and collection of rent was inadmissible as it was a statement other than the one made by the person giving oral evidence. Ideally, calling the tenants as witnesses would have remedied the situation but the Respondent did not call them as witnesses to its own detriment. In the premises, it follows that there was no cogent evidence that was tendered to prove the collection of rent or the occupation of the property by the Appellant. Consequently, the trial court erred in its award of mesne profits. Whether the trial court erred in issuing an eviction notice 36. It follows that the occupation of the property by the Appellant was not proven, the order for eviction could not issue as it was overtaken by events. The party had already moved out. No evidence was https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2932/eng@2026-04-20 7

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tendered to show that she still resided on the property or that she had tenants on the property as at the time the of the claim. 37. The upshot of the foregoing is that the entire Appeal succeeds. The decision of the trial court is hereby set aside. Although the appeal has succeeded, the claim arose due to an alleged failure of the appellant to repay the loan advanced. Thus, had she done her obligations, no claim would have arisen or succeeded, if any. Therefore, each party is to bear their own costs of the appeal. 38. Orders accordingly. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 20TH DAY OF APRIL 2026 HON. DR. IUR NYAGAKA JUDGE In the presence of, Ms. Kimberly for the Appellant No appearance for the Respondents https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2932/eng@2026-04-20 8

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