Kimundi v Matheka

court. The trial magistrate found that the Appellant had not proved her case. He proceeded to dismiss the Appellant’s suit. 4. It is the dismissal of the Appellant’s suit which triggered the ling of this appeal in which the Appellant has raised the following grounds: 1. The learned magistrate erred in law and in fact in making a decision which was not supported by evidence and making a judgment which was not property reasoned. 2. The learned magistrate erred in law and in fact in miss directing himself into meeting a judgment that was not supported by evidence. 3. That the threshold for the burden of proof in civil cases; balance of probabilities was met by the Plainti. 4. There exists glaring errors and inconsistencies in the judgment, indicating that the trial magistrate did not understand the subject matter of the suit. 5. The learned magistrate was wrong at faulting the Plainti, for failing to sue the County Government of Makueni. 6. The learned magistrate was wrong at faulting the PW4 and PW5 who were National Lands Commission Ocers, that they did not deny the authenticity of the Defendant’s list of documents. 7. The learned magistrate erred in law and in fact in making a nding that both the letters of allotment were genuine, when there was evidence to the contrary in regards to the Defendant’s documents. 8. The learned magistrate fell into error at faulting the Plainti, for enquiring for evidence from Makueni. And equating the request for information for an enquiry. It was not an enquiry, rather a fact nding mission. 9. The learned magistrate erred in law and in fact in making a nding that the actions of the Plainti did not meet the threshold set out in law. 10. The learned magistrate erred in law and in fact in making a nding that the actions of the PW4 on summoning the Defendant to produce her documents 11. The learned magistrate fell into error at faulting PW5, the Plainti and the Defendant in making a nding on verication. 12. The learned magistrate erred in law and in fact in making a nding that title to land is indefeasible. 13. The learned magistrate erred in law and in fact in making a nding that the Plainti did not challenge the legality of the title held by the Defendant. 14. The learned magistrate fell into error by faulting PW3, a registered surveyor’s report and actions on the basis that he was not an employee of the County. 15. The learned magistrate erred in law and in fact in ignoring the evidence adduced by the Plainti witnesses and only paid a lip service to the defence of the Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5631/eng@2026-09-24 2

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5. The parties were directed to dispose of the appeal by way of written submissions. The Appellant led her submissions dated 6th February, 2026. The Respondent led her submissions dated 26th February, 2026. 6. The Appellant submitted on ground 1 and 4 together. It was submitted that the trial magistrate did not understand the dispute before him. He failed to analyze the evidence adduced vis a vis the issue in contention which is which allocation was genuine. The trial magistrate is accused of summarizing the evidence of witnesses without analyzing the same. 7. The Appellant submitted on grounds 3, 9 and 15 together. It was submitted that the trial magistrate misapplied the burden and stand of proof and that he failed to nd that the Appellant had fully discharged the burden. The Appellant relied on the case of Miller –vs- Minister of Pensions (1947) 2 All ER 372 where it was stated as follows: “ Proof on a balance of probabilities does not mean proof beyond doubt. It simply means that the court must be satised that the Plaintis’ case is more likely than not”. 8. It was submitted that once the plainti establishes a prima facie case, the evidential burden shifts to the Defendant to rebut it. Reliance was placed on the case of Charterhouse Bank Ltd –vs- Frank N. Kamau. It was submitted that the Appellant had proved allocation of suit property, payment of requisite fees, verication of her documents by National Land Commission, conrmation from County Director of Planning and Identication of Physical location of the plot. 9. The Appellant relied on the case of Munyu Maina –vs- Hiram Gathiha Maina (2013) eKLR. It was submitted that the Appellant had discharged her burden by demonstrating inconsistencies in the Respondent’s allotment, invalid PDP, mismatch of zoning and proof of earlier allocation. It was submitted that the burden of proof shifted to the Respondent to demonstrate that her title had a rm root of foundation and had properly been issued. 10. It was submitted that where a trial court misapprehends the evidence or applies wrong principles an appellate court must interfere. Reliance was placed on the case of Mwangi –vs- Wambugu (1984) KLR 453. 11. The Appellant submitted on grounds 5, 6, and 7 together. It was submitted that the trial magistrate was wrong in faulting the Appellant for not suing the County Government of Makueni, nding that the Appellant’s witnesses did not deny the authenticity of Defendant’s documents, nding that both parties produced genuine documents. It was submitted that if the trial magistrate found that both allocations were genuine, he should have applied the principle in Wreck Motors Enterprises –vsCommissioner of Lands where it was held that the rst in time prevails, provided it was lawfully made. 12. The Appellant submitted on grounds 8, 10 and 11 together. It was submitted that the trial magistrate improperly rejected what the ocers of National Land Commission did and improperly held that the Respondent ought to have been present during the verication and that it was wrong to summon the Respondent. 13. The Appellant submitted on ground 12, 13 and 14 together. It was submitted that it was wrong for the trial magistrate to make a nding that the Respondent’s title was indefeasible. It was submitted that this nding was not supported by the evidence tendered. It was submitted that the Appellant had placed ample evidence showing that the Respondent’s title was impeachable. It was further submitted that the trial magistrate was wrong in nding that the Appellant did not challenge the legality of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5631/eng@2026-09-24 3

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Respondent’s title. It was also submitted that the trial magistrate was wrong in faulting the Applicant’s surveyor on ground that he was not an employee of the County Government of Makueni. 14. The Appellant submitted on grounds 6, 7, 13 and 15 together. It was submitted that from the allocating authority, County Planning Department, Survey department, National Land Commission or Lands Registry. It was submitted that if the Respondent would have called witnesses, their evidence would have been adverse. Reliance was placed on the case of Bukenya & Others –vs- Uganda (1972) EA 549 where it was held that failure to call material witnesses entitles the court to infer that their evidence would have been adverse. 15. The Respondent submitted that the Appellant had not proved any fraud on the part of the Respondent. Reliance was placed on Section 26(1) of the Land Registration Act which states as follows: The certicate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certicate, and the title of that proprietor shall not be subject to challenge, except— 16. a. On the ground of fraud or misrepresentation to which the person is proved to be a party; or b. Where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme. It was submitted that the Appellant did not seek in her pleadings a determination whether or not the Respondent held a valid title or ownership. It was further submitted that before injunctive reliefs could be given, the court had determine the issue of ownership. Reliance was placed on the case of Kinangop Farmers Self Help Group –vs- Nicholas Wachira Mutungi & 4 Others (2020) eKLR where it was held as follows: “ If a party wishes the court to determine or grant a prayer it must be specically pleaded and proved. The pleading are precursor for a party to lend evidence in satisfaction if the prayers he seeks to be granted in his favour where no such prayer is pleaded in a specic and somewhat particularized manner the party is not entitled to benet and the court has no jurisdiction to whimsically grant those orders. In the case of Kenya Power and Lightning Co. Ltd vs Sher Molana Habib perpetual injunction is granted upon hearing of the suit if on issue which a party has not pleaded specically the Appellants appeal has no merit at all the issue raised were not issues as pleaded and this appeal must collapse. 17. The duty of a rst appellate court was aptly stated in the case of Selle and Another –vs- Associated Motor Boat Co. Ltd & Others (1968) EA 123 as follows: “ .....An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briey put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s ndings of fact if it appears either it has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5631/eng@2026-09-24 4

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of if the impression based on the demeanor of a witness is inconsistent with the evidence in the cases generally”. 18. I have carefully considered the evidence which was adduced before the lower court, the judgement of the trial magistrate, the grounds of appeal as well as the submissions of the parties. The issue for determination in this appeal is whether the Appellant had proved her case before the trial court. The foundation of the Appellant’s case before the lower court is captured in paragraph 5 of the plaint where the Appellant averred as follows: “ 5. The Defendant by herself, agents and/or servants has unlawfully, fraudulently and without any color of right entered and/or trespassed on the Plainti’s plot and started illegal acts of putting up structures without her permission”. 19. The Appellant did not state any particulars of the alleged fraud or alleged illegality. It has been held in numerous cases that a party has to plead particulars of his/her case before he/she can proceed to prove those particulars. This was stated in the Kinangop Farmers Self Help Group (Supra). 20. There was no way the Appellant would have been granted an order of injunction or damages without rst pleading the particulars of fraud or illegality and proceeding to prove the same. What was in contention were two competing letters of allotment. From the evidence on record, both allotments emanated from the commissioner of Lands. This is clear from letter of 15th January, 2018 from the National Land Commission where the author stated that the allocation of the Appellant was the rst one and that administratively and in the rules of natural justice, the rst allocation superseded the later one. 21. In the case of Kinyanjui Kamau –vs- George Kamau (2015) eKLR it was held as follows: “ .....It is trite law that any allegations of fraud must be pleaded and strictly proved..... In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.......”. 22. It was alleged by witnesses from the National Land Commission that the allotment of the Respondent was issued based on reference No.201 when allotments in Sultan Hamud area were issued on reference No. 102. It was contended that le reference number belonged to Gilgil. The trial magistrate analyzed this and made a nding that there was no evidence adduced to show that that le number actually belonged to Gilgil or what criteria was used in allocating those le numbers. 23. The trial magistrate doubted the credibility of the witnesses from the National Land Commission and the manner in which the verication was done. As a rst appellate court I must give allowance to the fact that it is the trial magistrate who saw them when they were testifying and was the best person suited in assessing their demeanor. 24. The trial magistrate considered several authorities cited to him. These included cases on the process from allotment, meeting the conditions on the allotment and nally obtaining title. In the instant case, the Respondent has a certicate of title which has not been proved to have been obtained through fraud or corrupt scheme. This is because the Appellant never pleaded any particulars of fraud or adduced evidence of a corrupt scheme. 25. The Respondent having obtained a certicate of lease, the trial magistrate relied on the case of Gabriel Ndolo & Another –vs- John Nandasaba (2007) eKLR where it was held as follows: “ If at all, Kisumu Municipality Block 11/212 was the same as that allotted to both the Appellants and the Respondent then invariably the issuance of the certicate of lese https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5631/eng@2026-09-24 5

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extinguished any interest or claim that the Respondent may have had in the plot but only if the certicate was not obtained by mistake, fraud or misrepresentation. A registered proprietor of land would have the protection granted by Section 27 and 28 of the Registered Land Act”. 26. There was an issue which was raised on the date of commencement of the lease in the certicate of lease and the date of commencement in the letter allotment. This is a lease which was prepared by ocers at the Lands oce. If there is any variance, there was no evidence which was adduced to show that the Respondent was involved in this. The variation in dates between the certicate of lease and letter of allotment did not give any advantage to the Respondent as to be taken as a fraudulent act. The duration of the lease and allotment letter remained 99 years. 27. The Appellant was allotted the suit property in 1995. She never pursued certicate of lease or attempt to develop the suit property for over two decades. In Torino Enterprises Ltd -vs- Attorney General (2023) eKLR the Supreme Court rearmed that an allotment letter is merely an invitation to treat or an oer, not a title deed. 28. The trial magistrate properly analyzed the evidence before him. He properly applied the law. There is no basis upon which this court in its appellate jurisdiction can interfere with his decision. I therefore nd that this appeal is devoid of merit. The same is dismissed with costs to the Respondent. JUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 24TH DAY OF SEPTEMBER, 2026. ....................................................... HON. E. O. OBAGA, FCIArb JUDGE In The Presence Of: Mr. Kamoto for Respondent Mr. Kasyoka for Appellant Court assistants – Kilonzo and Musyoki https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5631/eng@2026-09-24 6

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