Rono & 3 others (Suing as the personal representatives of the Estate of Chumo Arap Chabas alias Chumo Chebas - Deceased) v Langat (Sued as the legal representative of the Estate of Joel Kimetet Langat) & another (Environment and Land Case 40 of 2017) [2026] KEELC 3435 (KLR)

4. The Plaintifis further aver that the Defendants actions deprived them of the use and occupation of the said plot and they have sufiered loss and damage. 5. The Plaintifis seek the following orders; a. An eviction order against the Defendants by themselves, agents, servants or employees or any other party acting on their behalf to vacate Plot No. 7 Kapkurgwet Market. b. An order of permanent injunction restraining the Defendants by themselves, agents, servants, employees or any other party through whom they may be acting from interfering with, trespassing onto, subdividing, selling, transferring, assigning, fencing, erecting structures thereon and or doing any other act which is prejudicial to the Plaintifi’s proprietary interest in Plot No. 7 Kapkurgwet Market. c. Costs and interest. d. Any other relief the Court may deem fit and just to grant. 6. The 1st Defendant filed a Statement of Defence and Counterclaim dated 30th May, 2017. 7. He states that in the year 1969, he purchased half a portion of Plot No. 7 Kapkugerwet Market from Chumo Arap Chabas (Deceased). 8. He also states that with the consent of Chumo Arap Chabas (Deceased) four wives, he constructed a storied building on the said plot. 9. He further states that the beneficiaries of the estate of Chumo Arap Chabas (Deceased) have never interfered with his possession for a period of over fifty years. 10. He states that he was the one paying the ground rent and he has therefore gained prescriptive rights over the property. 11. He also states that the suit against him is misconceived, bad in law and an abuse of the Court process. 12. In the Counterclaim, the 1st Defendant reiterates the averments in the Statement of Defence and seeks the following prayers; a. That this Honourable Court do find and declare that the Defendant has a right of ownership by prescription of half portion of the Plot No. 7 at Kapkugrewet Market measuring 25” by 100”. b. That the Plaintifi’s suit against the Defendant be dismissed with costs to the Defendant and judgement be entered on the Counterclaim as prayed. c. That any such other or further relief as this Honourable Court may deem appropriate to be made. 13. The 2nd Defendant filed a Statement of Defence and Counterclaim dated 24th August, 2017. 14. She states that sometime in the year 1966, her deceased husband purchased half a portion of Plot No. 7 Kapkugerwet Market from Chumo Arap Chabas (Deceased). 15. She also states that her deceased husband was the beneficial owner of the said plot until the year 2013 when he died and the ownership of the said plot was transmitted to the heirs of his estate. 16. She further states that her deceased husband erected business premises on the said plot where he had a posho mill. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3435/eng@2026-06-04 2

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17. She states that Chumo Arap Chabas (Deceased) four wives and the beneficiaries of his estate did not interfere with her deceased husband’s possession of the said plot for a period of over fifty years. 18. She also states that she has gained prescriptive rights over the said plot and the suit against her is misconceived and bad in law. 19. She seeks the following prayers in the Counterclaim; a. That this Honourable Court do find and declare that the 2nd Defendant has a right of ownership by prescription of half portion of the plot Number 7 at Kapkugerwet market measuring 25” by 100”. b. That the Plaintifis’ suit against the 2nd Defendant be dismissed with costs to the 2nd Defendant and judgement be entered on the Counterclaim as prayed. c. That any such other or further relief as this Honourable Court may deem appropriate to be made. 20. On 15th June, 2023 the Court was informed that the 2nd Defendant was deceased and on 15th July, 2024, the Court was informed that the 1st Defendant was also deceased. 21. The Plaintifis filed a Notice of Motion application dated 14th May, 2024 where they only sought for the substitution of the deceased 1st Defendant. 22. On 13th May, 2025, the 1st Defendant was substituted by Naomi Chepkorir Langat. 23. On 24th July, 2025 Counsel for the deceased 2nd Defendant sought time to file an application for substitution which application was not filed. 24. Even though the Death Certificate of the deceased 2nd Defendant was not availed, it is not disputed that she is deceased. 25. It therefore follows that the suit against her had already abated as at the time of the writing of this judgement. The Plaintifis’ Evidence. 26. Paul Kiptonui Ngeno herein after referred to as PW1 was the first to testify in support of the Plaintifis claim. 27. It was his evidence that he was in Court to testify about Plot No. 7 Kapkurgwet Market. 28. It was also his evidence that that his deceased father one Chumo Arap Chabas was the proprietor of the said plot. 29. It was further his evidence that he was one of the legal representatives of the estate of his deceased father. He produced a copy of a Grant of Letters of Administration Intestate as Exhibit P1. 30. He testified that the Municipal Council of Kericho transferred the said plot to their deceased father’s name. 31. He also testified that he had a letter dated 17th March, 2003 which was written by the Municipal Council of Kericho. The letter was marked and produced as Exhibit P2. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3435/eng@2026-06-04 3

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32. He further testified that they filed succession proceedings with regard to the estate of their deceased father and they were issued with a grant that was confirmed. He produced a copy of the Certificate of Confirmation of Grant dated 16th July, 2013 as Exhibit P3. 33. It was his evidence that the said plot was transferred to the administrators of the estate of their deceased father to hold in trust for the beneficiaries. 34. It was also his evidence that they applied for the transfer of the said plot vide the letter dated 8th August, 2016 which letter he produced as Exhibit P4. 35. It was further his evidence that the said plot was transferred to their names as per the Letter from the Kericho County Government dated 15th September, 2016. He produced a copy of the said letter as Exhibit P5(a). 36. He testified that they paid for the transfer and a receipt dated 1st September, 2016 was issued. A copy of the said receipt was produced as Exhibit P5(b). 37. PW1 also testified that Joel Kimetet Lagat (Deceased) was one of their uncles and he entered the said plot and tried to use it without their permission. 38. He further testified that at the time he was giving evidence, Joel Kimetet Lagat (Deceased) was not in possession and neither was he transacting on the said plot. 39. It was his evidence that their family is polygamous and Joel Kimetet Langat (Deceased) entered the plot without consulting the entire family. 40. It was also his evidence that their deceased father did not allow Joel Kimetet Lagat (Deceased) to use the plot. 41. It was further his evidence that Joel Kimetet Lagat (Deceased) first set up a shop on the said plot. 42. He testified that as per the agreement dated 22nd May, 1976, the suit plot was sold by his mothers to Joel Kimetet Lagat (Deceased). 43. He also testified that their deceased father’s name did not appear on the said agreement and he did not therefore sell it to Joel Kimetet Lagat (Deceased). 44. He also testified that succession proceedings with respect to the estate of their deceased father were concluded on 16th July, 2013 and reiterated that their deceased father did not sell the said plot. 45. He further testified that during the succession process, Joel Kimetet Lagat (Deceased) did not file any documents. 46. It was his evidence that the deceased 2nd Defendant was their neighbor and added that she jointly owned her plot with Joel Kimetet Langat (Deceased). 47. It was also his evidence that both Defendants were not on the suit parcel of land. 48. It was further his evidence that it was only after they received a notice from Counsel that Joel Kimetet Lagat (Deceased) and the deceased 2nd Defendant showed them documents and started claiming the suit plot. 49. He testified that the agreement that the deceased 2nd Defendant had in her possession was dated 29th May, 1997 and it was entered into by Chuma Chebas (Deceased) and one William. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3435/eng@2026-06-04 4

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50. He also testified that Chuma Chebas (Deceased) died on 19th October, 1972 and he could not have therefore entered into the agreement dated 29th May, 1997. 51. He further testified that the agreement dated 29th May, 1997 did not show whether it was a land sale agreement or not and neither did it disclose any sum of money. 52. He testified that John Kipkemoi Chebas was his step brother. 53. He reiterated that his father could not have signed the agreement as he was already deceased and testified that one of their neighbor’s one John did not also sign it. 54. It was his evidence that the said agreement was signed by Julius Ngeno and John Tele. 55. It was also his evidence that from the agreement, there was a person who stated that he received money but the said person did not sign it. 56. It was further his evidence that one Julius provided receipts that showed that he was paying rates so that he could get a license to operate the shop and added that the receipts provided by Julius were in respect of his plot. 57. He also testified that part of their family allowed Joel Kimetet Langat (Deceased) to take possession of the said plot and he paid them rent. 58. He further testified that Joel Kimetet Langat (Deceased) and the deceased 2nd Defendant vacated the said plot in the year 2014 and did not thereafter interfere with it. 59. It was his evidence that they want the Court to evict the Defendants and award them damages and costs of the suit. 60. Upon clarification being sought by the Court, PW1 admitted that neither their deceased father nor them were given a title deed for the said plot. 61. The Plaintifis case was then closed. 62. The Defendants were not present in Court and their case was also closed. Issues For Determination. 63. The Plaintifis filed submissions dated 30th March, 2023 while none of the Defendants filed their submissions. 64. The Plaintifis submit on whether they are entitled to the prayers sought in the Plaint. 65. In their submissions, the Plaintifis set out the evidence adduced during the hearing and submit that the deceased 1st Defendant testified and produced letters dated 5th June, 2017 and 22nd May, 1976. However, this is not true. The 1st Defendant did not tender evidence in this suit. 66. It is the Plaintifis submissions that their father died on 19th October, 1972 and succession proceedings with regard to his estate were finalized in the year 2013. 67. It is also the Plaintifis submissions that any transactions made on the said plot would only amount to intermeddling with the estate of a deceased person. The Plaintifis rely on Section 45 of the Law of Succession Act in support of their submissions. 68. The Plaintifis refer to the deceased 1st Defendant’s Statement dated 31st May, 2017 and reiterate that it was not possible for their deceased father to have sold the plot to the deceased 1st Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3435/eng@2026-06-04 5

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69. The Plaintifis refers to the agreement dated 29th May, 1997 which was filed by the deceased 2nd Defendant vide a list of documents dated 24th August, 2017 and reiterate that it was entered into after the death of their father and if the alleged transaction occurred then, the estate of their deceased father was meddled with. 70. The Plaintifis submit that some of their family members allowed the 1st Defendant and the deceased 2nd Defendant to take possession of the said plot and they paid rent until the year 2016, when succession proceedings with regard to their deceased father were concluded. 71. The Plaintifis also submit that the said plot was transferred to them in their capacity as administrators of the estate of their deceased father. 72. The Plaintifis further submit that they then asked the 1st Defendant and the deceased 2nd Defendant to vacate the plot but they refused to do while alleging that they had purchased it. 73. It is the Plaintifis submissions that during the hearing, evidence was led to the fact that the Defendants eventually moved out of the land but the structures constructed thereon remained. 74. It is also the Plaintifis submissions that the structures constructed by the 1st Defendant and the deceased 2nd Defendant on the said plot are locked and are accessed by them at their convenience. 75. It is further the Plaintifis submissions that the 1st Defendant and the Deceased 2nd Defendant’s actions have denied them use and enjoyment of the said plot. 76. The Plaintifis rely on Section 3(1) of the Trespass Act, the judicial decision of Kenya Power & Lighting Co. Limited vs Sherifi Molana Habib [2018] eKLR and submit that they produced letters written by the Municipal Council of Kericho and the Kericho County government which show that the said plot belonged to Arap Chabas (Deceased). 77. The Plaintifis further submit that the 1st Defendant and the deceased 2nd Defendant ought to be restrained by a Permanent Injunction from continuing to trespass on the suit parcel of land. 78. On whether they are entitled to damages for trespass, the Plaintifis rely on the judicial decisions of Park Towers Limited versus John Mithamo Njiika & 7 Others [2014]eKLR, Philip Aluchio vs Crispanus Ngayo [2014]eKLR, Nakuru Industries Limited vs SS Mehta & Sons [2016]eKLR, Willesden Investments Limited vs Kenya Hotel Properties Limited Nairobi HCC No. 367 of 2000 and submit that the Court should award them Kshs. 5,000,000/= as general damages for trespass. 79. The Plaintifis conclude their submissions by urging the Court to grant the prayers sought in the Plaint. Analysis And Determination. 80. After considering the pleadings, the evidence of the Plaintifis’ witness together with their submissions, it is my view that the following issues arise for determination; a. Whether the 1st Defendant trespassed on Plot No. 7 Kapkurgwet Market. b. Whether the prayers sought in the Amended Plaint should be granted. c. Whether the prayers sought in the 1st Defendant’s Statement of Defence and Counterclaim should be granted. d. Who should bear costs of the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3435/eng@2026-06-04 6

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Summary of Evidence and Documents. 81. It is the Plaintifis case that their deceased father one Chumo Arap Chabas was the owner of Plot No. 7 Kapkurgwet Market. 82. It is also the Plaintifis case that Chumo Arap Chabas died on 19th October, 1972. 83. It is further the Plaintifis case that Joel Kimetet Langat (deceased) was allowed by some of their family members to enter the said plot and set up a shop. 84. It is the Plaintifis case that their entire family was not consulted and in the year 2014, Joel Kimetet Langat (deceased) vacated the said plot and did not thereafter interfere with it. 85. In support of their case, the Plaintifis produced a copy of a Grant of Letters of Administration Intestate issued in Kericho HC Succession Cause No. 157 of 2003 in the matter of the estate of Chumo Arap Chabas alias Chumo Chabas to John Kipkemoi Chabas, William Kipketer Bii, Paul Kiptonui Ngeno and Willy Kipkirui Ngeno on 21st November, 2012 as Exhibit P1. 86. A copy of a letter dated 17th March, 2003 was produced as Exhibit P2. The letter is written by K.K Rugutt the Acting Town Clerk Municipal Council of Kericho. The reference of the letter is “Plot No. 6 & 7 – Kapkugerwet Market”. The contents of the said letter are as follows; “ This is to confirm that the above Plots and the Developments therein at Kapkugerwet Market within the Municipality of Kericho are registered under Chumo Arap Chabas. We hereby confirm that the said person is the legal owner of the plots and the developments.” 87. A copy of a Certificate of Confirmation of Grant dated 16th July, 2013 issued in Kericho HC Succession Cause No. 157 of 2003 in the matter of the estate of the late Chumo Arap Chabas alias Chumo Chebas (Deceased) was produced as Exhibit P3. There is a schedule on its face and Plot No’s 6 & 7 Kapkugerwet are included thereon. 88. A copy of a letter dated 8th August, 2016 was produced as Exhibit P4. The letter is written by the Administrators of the estate of Chuma Chabas and addressed to the Kericho Sub County Administrator. The reference of the letter is “Change of the name of the Plot No. 7 of Kapkugerwet Market From Fred Chumo Chabas.” The contents of the said letter are as follows; “ We the administrators of the above plot 7 of the late Chumo Chabas of Kapkugerwet Market. We request the sub-county government to make changes of the above plot to the administrators…” 89. The letter sets out the names of the Plaintifis who have signed it and states that copies of the Plaintifis Identity Cards and pleadings filed in Succession Cause No. 157 of 2013 were attached to the said letter. 90. A copy of a letter dated 15th September, 2016 was produced as Exhibit P5(a). The letter is written by Lawrence O. Airo for the Town Administrator, County Government of Kericho. The reference of the letter is “Administration of the Late Chumo’s Estate Plot No. 7 Kapkugerwet Market”. The letter is addressed to; a. Willy Kipkurui Rono b. John Kipkemoi Chabas https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3435/eng@2026-06-04 7

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91. c. William Keter Bii d. Paul Kiptanui Ngeno The letter states as follows; “ I refer to the above subject. This is to notify you that the above plot is transferred to you to hold in trust of the members of the family as contained in the certificate of confirmation of grant dated at Kericho on 16th July, 2013.” 92. A copy of a receipt issued on 1st September, 2016 was produced as Exhibit P5 (b). The receipt is issued by the County Government of Kericho (Kericho Town) to Willy K. Rono, John K. Chabas, William K. Bii and Paul K. Ngeno upon payment of Kshs. 5,000/= as transfer fee. A. Whether the 1st Defendant trespassed on Plot No. 7 Kapkurgwet Market. 93. Before addressing this issue on its merits, it is important to point out that none of the Defendants participated in the hearing of this suit. The Plaintifis are the only ones who led evidence. 94. In the judicial decision of Propwa Company Limited v Justus Nyamo Gatondo & another [2020] KEELC 3906 (KLR) the Court held as follows; “ The fact that the suit has not been defended means that the Plaintifi’s evidence remained unchallenged and uncontroverted. However, the Court will not just enter Judgment without interrogating the veracity of the evidence placed before it by the Plaintifi as the Plaintifi is still required to prove his case on the required standard of balance of probabilities… The fact that the evidence is not challenged does not entirely mean that the Court will not interrogate the evidence tendered by the Plaintifi. The Court still has an obligation to interrogate the Plaintifi’s evidence and determine whether the same is merited to enable the Court come up with logical conclusion as exparte evidence is not automatic prove of a case on the required standard. The Plaintifi has to discharge the burden of proof. See the case of Kenya Power & Lighting Company Limited… Vs…Nathan Karanja Gachoka & another [2016] eKLR, the Court stated:“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a Court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintifi must prove its case too upon a balance of probability whether the evidence is unchallenged or not.’’ Further the case of Gichinga Kibutha…Vs…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.’’ (Emphasis mine) 95. In the above cited judicial decision, the Court held that the fact that a suit has not been defended does not mean that the Plaintifi’s evidence remains unchallenged and uncontroverted. It was also held that the Court has a duty to interrogate the evidence adduced in order to determine whether the Plaintifi has proved his case to the required standard. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3435/eng@2026-06-04 8

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96. I shall therefore proceed to determine whether the Plaintifis have proved their case. 97. I will first address the issue whether the 1st Defendant trespassed on Plot No. 7 Kapkurgwet Market. 98. Halsbury’s law of England 5th edition, Volume 97 at page 465 paragraph 563 defines trespass as follows: “ A person trespasses upon land if he wrongfully sets foot on it, rides or drives over it, or takes possession of it, or expels the person in possession, or pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it or it, or if he erects or sufiers to continue on his own land anything which invades the air space of another. He also commits a trespass to land if , having entered lawfully, he unlawfully remains after his authority to be there expires.” 99. Section 3 (1) of the Trespass Act, Cap 294 provides that: “ Any person who without reasonable excuse enters, is or remains upon or erects any structure on, or cultivates or tills or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an ofience.” 100. It was PW1’s evidence that Joel Kimetet Langat (Deceased) took possession of Plot No. 7 Kapkurgwet Market with the consent of some of their family members who he paid rent to. 101. It was also PW1’s evidence that they asked Joel Kimetet Langat (Deceased) to vacate the land but he alleged that he purchased it. 102. It was further PW1’s evidence that Joel Kimetet Langat (Deceased) vacated the said plot in the year 2014 and did not thereafter interfere with it. 103. First, no evidence was led by the Plaintifis as to when Joel Kimetet Langat (Deceased) took possession of the suit plot. 104. Second, it is evident that Joel Kimetet Langat (Deceased) took possession of the said plot with the consent of some of the Plaintifis family members. 105. Third, it is also evident that Joel Kimetet Langat (Deceased) vacated the said parcel of land in the year 2014. 106. I however note that the Plaintifis in their submissions contend that after Joel Kimetet Langat (Deceased) vacated the land, he locked the shop that was on the said plot and that he continues to access the shop at his own convenience. No such evidence was adduced during the hearing. 107. In Mwavula v Waweru t/a Antique Auctioneers Agencies & another (Civil Appeal E374 of 2023) [2024] KEHC 5988 (KLR) (24 May 2024) (Ruling) the Court held as follows; “ What the Applicant does not seem to appreciate is that submissions are not pleadings or evidence. As was held by Mwera, J (as he then was) in Erastus Wade Opande vs. Kenya Revenue Authority & Another Kisumu HCCA No. 46 of 2007: “Submissions simply concretise and focus on each side’s case with a view to win the Court’s decision that way. Submissions are not evidence on which a case is decided.” (Emphasis mine) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3435/eng@2026-06-04 9

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108. As was held in the above cited judicial decision, submissions cannot take the place of evidence. 109. PW1 in his evidence categorically stated that once Joel Kimetet Langat (Deceased) vacated the land, he did not interfere with it again. 110. Section 107 of the Evidence Act provides as follows; 111. “ (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.” Section 108 of the Evidence Act provides as follows; “ The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 112. Section 109 of the Evidence Act provides 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.” 113. The Court of Appeal in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Ofice Savings Bank [2004] eKLR held as follows; “ We have carefully considered the judgement of the superior Court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintifi and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail. It also follows that a Court should not make any findings on unpleaded matters or grant any relief which is not sought by a party in the pleadings.” (Emphasis mine) 114. From the totality of the evidence adduced in the present suit, it is evident that at some point Joel Kimetet Langat (Deceased) was in possession of the suit plot with the consent of some of the Plaintifis family members and it is also evident that he vacated the said plot in the year 2014. 115. I find, therefore, that the Plaintifis have failed to prove that Joel Kimetet Langat (Deceased) trespassed on Plot No. 7 Kapkurgwet Market. B. Whether the prayers sought in the Amended Plaint should be granted. 116. The prayers sought in the Amended Plaint have been set out in the preceding paragraphs but I will nonetheless replicate them as hereunder for ease of reference; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3435/eng@2026-06-04 10

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117. a. An eviction order against the Defendants by themselves, agents, servants or employees or any other party acting on their behalf to vacate Plot No. 7 Kapkurgwet Market. b. An order of permanent injunction restraining the Defendants by themselves, agents, servants, employees or any other party through whom they may be acting from interfering with, trespassing onto, subdividing, selling, transferring, assigning, fencing, erecting structures thereon and or doing any other act which is prejudicial to the Plaintifi’s proprietary interest in Plot No. 7 Kapkurgwet Market. c. Costs and interest. d. Any other relief the Court may deem fit and just to grant. Given my finding on issue (A) above, the prayers sought in the Amended Plaint cannot be granted. C. Whether the prayers sought in the 1st Defendant’s Statement of Defence and Counterclaim should be granted. 118. The prayers sought in the 1st Defendant’s Statement of Defence and Counterclaim dated 30th May, 2017 have been set out in the preceding paragraphs but I will nonetheless replicate them as hereunder for ease of reference; A. That this Honourable Court do find and declare that the Defendant has a right of ownership by prescription of half portion of the Plot No. 7 at Kapkugrewet Market measuring 25” by 100”. B. That the Plaintifi’s suit against the Defendant be dismissed with costs to the Defendant and judgement be entered on the Counterclaim as prayed. C. That any such other or further relief as this Honourable Court may deem appropriate to be made. 119. As stated, the 1st Defendant did not give evidence and neither did he participate in the hearing of the suit. 120. The Court of Appeal in Attorney General v James Alfred Koroso [2018] KECA 129 (KLR) cited with approval the judicial decision of Edward Muriga through Stanley Muriga V Nathaniel D. Schulter Civil Appeal No. 23 of 1997 where it was held as follows; “ In this matter; apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st Plaintifi and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations. Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.” (Emphasis mine) 121. In the above cited judicial decision, the Court held that where a Defendant fails to adduce evidence, his statement of Defence is regarded as containing mere allegations. 122. In the present suit, even though the 1st Defendant filed a Statement of Defence and Counterclaim, he did not adduce any evidence. 123. That being the case, the 1st Defendant’s Statement of Defence and Counterclaim was not substantiated by evidence and the prayers sought cannot be granted. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3435/eng@2026-06-04 11

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D. Who should bear costs of the suit. 124. The general rule is that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). 125. A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. Disposition. 126. 127. In the result, I find and order as follows a. The Plaintifis’ suit is hereby dismissed. b. The 1st Defendant’s counterclaim is hereby dismissed. c. Each party shall bear own costs. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 4TH DAY OF JUNE, 2026. L. A. OMOLLO JUDGE. In the presence of: Mr. Okok for the Plaintifis. The firm of Mutai Tanui for the 2nd Defendant-Absent The firm of Onesmus Langat for the 1st Defendant-Absent Court Assistant; Mr. Joseph Makori. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3435/eng@2026-06-04 12

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