Jiromo & another v Moonlight Self Help Group [Suing Through Its Officials] Hassan & another

disputed land lawfully belongs to the Appellants; and that the Respondent has no lawful rights to the suit property. 4. On the other hand, the Respondent led a defence and counter claim dated the 27.02.2023 and wherein same contended that the disputed land was lawfully allocated to the Respondent by the land committee, under the directions of the Area chief. The Respondent further averred that following the allocation of the land, same [respondent] took possession and commenced to use the land. 5. Furthermore, the respondents posited that the appellants herein have no claim to the disputed land, save that the Appellants, had tried to grab the land by trespassing thereto. 6. Subsequently, the Respondent herein lodged a notice of preliminary objection dated the 28.11.2023; and wherein the Respondent challenged the legal capacity of the Appellants to le the suit, albeit without having obtained the grant of letters of administration. Suce it to state that the preliminary objection was heard and same was thereafter allowed. In this regard, the appellants’ suit was duly struck out. 7. The matter thereafter proceeded for hearing of the counter claim that was led by /on behalf of the respondent. The counter claim was heard culminating into the judgment delivered on the 27.02.2026. For good measure, the learned trial magistrate [Hon. Willy K Cheruyot – Principal Magistrate] found and held that the Respondent [Counter Claimer] had proved her claim as pertains to ownership of the suit property. 8. The learned trial magistrate made the following orders: 9. (a) An order be and is hereby issued that the register be rectied to depict the 7th defendant [now Plainti] as the rightful owners of land /plot measuring 30 acres situated at Harbola/Gubalticha area, within Heilu Sub Location. (b) An order of eviction of the plainti, 1st and 2nd defendants from land/plot measuring 30 acres situated at Harbola/Gubalticha area, within Heilu Sub Location. (c) Costs of the counter claim are hereby awarded to the 7th defendant [now plainti]. Aggrieved, the Appellants herein have approached this court vide memorandum of appeal dated the 26.03.2026 and wherein same [Appellants] have raised various grounds. The grounds are: i. That the learned trial magistrate judge erred in law and fact by denying the appellant a chance to defend himself as against the rules of Natural Justice and against Article 50 of the Constitution which guarantees right to fair hearing. ii. That the learned trial magistrate erred in law and fact in holding that the appellant had not ed a defence when the defence to the counter claim was ready in the record. iii. That the learned trial magistrate erred in law and in fact by ignoring the evidence of the appellant in totality on the guise that the suit was undefended when clearly there was a defence to the counter claim on record. iv. That the learned trial magistrate erred in law and fact in failing to determine the suit on merit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5895/eng@2026-09-17 2

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v. The learned trial magistrate erred in law and fact in applying the wrong law and failing to appreciate that the land in question was a community land and therefore arrogating himself the powers of a land adjudicating ocer. 10. The appeal came up for directions on the 18.06.2026, whereupon the Appellants intimated to the court that same had led and served the record of appeal, comprising of the maiden record of appeal and the supplementary record of appeal. In addition, learned counsel for the Appellants sought directions as pertains to the hearing and disposal of the appeal. Moreover, counsel proposed to have the appeal canvassed vide written submissions. 11. With the concurrence of learned counsel for the respondent, the court proceeded to and issued directions. The directions were: The appeal shall be canvassed before one judge; the appeal shall be canvassed vide written submissions; the Appellants shall le and serve written submissions within 14 days from the date of the directions; the Respondent shall le and serve written submissions within 14 days from the date of service; and the Appellants shall be at liberty to le and serve rejoinder submissions [if any] within 7 days from the date of service. 12. The Appellants led written submissions dated the 10.07.2026 and wherein the Appellants have highlighted three key issues. The issues are: The learned trial magistrate denied and deprived the Appellants of their rights to fair hearing and thus breached Article 50 of the Constitution, 2010; the learned trial magistrate erred in holding that the Appellants had not led a defence to the counter claim; and the learned trial magistrate misapprehended the facts of the case and misapplied the law, notwithstanding the fact that the land in question was [sic] community land. 13. Learned counsel for the Appellants has contended that the trial court failed to properly evaluate and analyze the evidence on record; and thus arrived at an erroneous conclusion that the disputed land [suit property] belonged to the respondent. Moreover, it has been posited that the Respondent did not tender credible evidence to underpin its entitlement to the suit property. 14. Premised on the foregoing, learned counsel for the Appellants has contended that the impugned judgment, reeks of errors and thus same ought to be set aside. The court has been invited to nd that the appeal is meritorious and thus ought to be allowed. 15. The Respondent led written submissions dated the 18.07.2026 and wherein same has equally highlighted three key issues. The issues are: The Appellants’ right to fair hearing in terms of Article 50 of the Constitution, 2010 were never violated; the Appellants had not led a statement of defence to the counter claim, and the issue was settled vide the ruling of the learned trial magistrate delivered on the 03.09.2025; and the Respondent duly proved its claim as pertains to ownership of the suit property. 16. Furthermore, learned counsel for the Respondent has submitted that insofar as the Appellants did not le a defence to the counter claim, the assertions vide the counter claim, were technically admitted. In this regard, it has been submitted that the Appellants herein, cannot now turn around and challenge the respondent’s ownership of the suit property. 17. In a nutshell, learned counsel for the Respondent has implored the court to nd and hold that the subject appeal is bereft of merits and thus same ought to be dismissed. The court has been invited to dismiss the appeal; arm the judgment of the trial court; and to award costs of the appeal to the respondent. 18. Having reviewed the record of appeal; the pleadings on record; the impugned judgment; and upon taking into account the submissions by /on behalf of the parties, four [4] key issues emerge for determination. The issues are: Whether the Appellants’ right to fair hearing in terms of Article 50 of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5895/eng@2026-09-17 3

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Constitution,2010 were violated or otherwise; whether the Appellants can canvass the question /issue of the defence to the counter claim at this juncture or otherwise; whether the Respondent duly proved / established its ownership rights to the suit property; and what reliefs [if any] ought to be granted. 19. Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a rst Appeal. By virtue of being a rst Appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of rst instance. The court is obligated to review the evidence and determine whether the ndings and conclusion[s] arrived at by the trial magistrate, accord with the evidence on record and the legal principles. 20. The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the ndings of the trial court. However, it is established that the appellate court can only depart from the factual nding and conclusion of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the ndings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principle, which vitiates the ndings of the Trial Court. 21. Suce it to state that, barring the foregoing, the rst appellate court is enjoined to defer to the ndings and conclusions of the trial court. Notably, the jurisdiction of the rst appellate court to interfere with the ndings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. It is a jurisdiction that cannot be exercised for the mere asking. In addition, it cannot be invoked and exercised at will, or better still, for the mere asking. Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya, regulates its exercise. 22. The jurisdictional remit of the rst appellate court, while undertaking its mandate as pertains to the rst Appeal, has been the subject of various court decisions. In the case of Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR). The Court of Appeal expounded on the scope of the jurisdiction. 23. The court stated thus: “ 46. We also wish to be guided by the reasoning of this court in the case of Mwana Sokoni versus Kenya Business Limited (1985) KLR 931 page 934,934 thus:-“Although this court on Appeal will not lightly dier from the Judge at rst instance on a nding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence on a rst Appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the signicance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to dier from the nding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5895/eng@2026-09-17 4

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24. Recently, the Court of Appeal revisited the jurisdictional remit in the case of Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR). The Court highlighted the principle in the following manner: “ We have considered the Appeal, and this being a rst Appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testied during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the ndings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a rst appellate court must of necessity proceed with caution in deciding whether or not to interfere with the ndings of a trial court, but of course, where such ndings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the Civil Procedure Act, which requires a rst appellate court to re-evaluate, reassess, and reanalyse the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows: “Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of rst instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of rst instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given… Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a dierent conclusion on the printed evidence, should not do so unless it is satised that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sucient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satised that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5895/eng@2026-09-17 5

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appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be aected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.” [see also the decision in the case of County Government of Bungoma & 2 others v JOO & 2 others [2024] KECA 1377 (KLR) and County Government of Narok v Ntutu & 2 others [2026] KECA 880 (KLR) – [paragraphs 56 and 57 thereof]” 25. Bearing in mind the said principles, I now revert to the issues for determination. I propose to deal with the issues sequentially. I shall commence with the rst issue, namely; whether the Appellants’ rights to fair hearing in terms of Article 50 of the Constitution, 2010 were violated. The Appellants have contended that the learned trial magistrate denied same the right to le and serve a defence to the counter claim and thereby negated the Appellants’, right to defend the claim pertaining to the suit property. 26. I beg to state that the right to fair hearing is a fundamental right and same is the foundation of the rule of law. Where the right to fair hearing, which entails fair trial and the rule of natural justice, is violated, then the impugned proceedings and the resultant decision [if any] is vitiated. Such proceedings and the resultant decision, shall be a nullity. [See the holding in the case of David Oloo Onyango v AttorneyGeneral [1987] KECA 56 (KLR)]. 27. Recently, the signicance of the right to fair hearing and its impact on judicial proceedings, was illuminated in the case of Shollei v Judicial Service Commission & another [2022] KESC 5 (KLR). The supreme court [the apex court] stated as hereunder: “ 67. 68. The right to a fair hearing is provided for in the Constitution as follows:“ Article 50(1) of the Constitution provides that: Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” Article 25 of the Constitution stipulates that: “Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited – (a) freedom from torture and cruel, inhuman, or degrading treatment or punishment. (b) freedom from slavery or servitude. (c) the right to a fair trial; (d) the right to an order of habeas corpus.” [emphasis added] In Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others, SC Petition No 18 of 2014 as consolidated with Petition No 20 of 2014; [2014] eKLR (Njoki Ndungu, SCJ, Concurring), this court made the following nding concerning the right to a fair trial under article 50(1) and 50(2):“[255] Article 50(1) refers to the right to a fair hearing for all persons, while article 50(2) accords all accused persons the right to a fair trial. Article 25(c) lists the right to a fair trial as a non-derogable fundamental right and freedom that may not be limited. Often the terms ‘fair hearing’ and ‘fair trial’ are used interchangeably, sometimes to dene the same concept, and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5895/eng@2026-09-17 6

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other times to connote a minor dierence. Although the right to a fair trial is encompassed in the right to a fair hearing in our Constitution, a literal construction of these two provisions may be misconstrued in some quarters to mean that article 50(1) deals with the right to fair hearing in any disputes including those of a civil, criminal or quasi criminal nature whereas article 50(2) is limited to accused persons thereby arguing that the protection of such right only relates to criminal matters. This is not an acceptable interpretation or construction within the parameters of articles 19 and 20 of the Bill of Rights, which calls for an expansive and inclusive construction to give a right its full eect… (257) Fair hearing, in principle incorporates the rules of natural justice, which includes the concept of audi alteram partem (hear the other side or no one is to be condemned unheard) and nemo judex in causa sua (no man shall judge his own case) otherwise referred to as the rule against bias. Peter Kaluma, Judicial Review: Law, Procedure and Practice 2nd Edition (Nairobi: 2009) at page 195, notes that the rules of natural justice generally refer to procedural fairness in decision making. Further he analyses the two mentioned concepts of the rules of natural justice and states [at pages 176 and 177] that it is the duty of the courts, when dealing with individual cases, to determine whether indeed the rules of natural justice have been violated and noting that “although the necessity of hearing is well established, its scope and contents remain unsettled. …[261] It is important to restate that a literal reading of the provisions of the Constitution show that the right to a fair hearing is broad and includes the concept of the right to a fair trial as it deals with any dispute whether they arise in a judicial or an administrative context. Comparative experience shows that the European Court has elaborated on the question regarding the scope of the right to fair trial applying the right in both civil and in criminal matters. The European Court of Human Rights (European Court) has severally explained that: “it is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case eectively before the court.” ( See Steel and Morris v. United Kingdom, [2005] ECHR 103, paragraph 59). 28. Back to the question. Were the Appellants’ rights to fair hearing violated? The record before me is quite elaborate and comprehensive. The Appellants’ led the suit in the lower court. The Appellants’ contended that what comprises of suit property, belonged to their father, namely; Adan Jirmo [deceased]. Despite contending that the disputed property belonged to their father, the Appellants did not procure or obtain the requisite grant of letters of administration. In this respect, the Appellants’ suit, was rightly struck out on the basis of Section 82 of the Law of succession Act, Chapter 160 Laws of Kenya. 29. Additionally, upon being served with the counter claim by /on behalf of the respondent, it was incumbent upon the Appellants to le and serve a statement of defence [if any], in accordance with the law. Suce it to state that a counter claim is a cross suit and therefore, anyone served with same, is obligated to respond thereto. [See County Government of Kili v Mombasa Cement Limited [2017] KECA 633 (KLR)]. 30. From the record, the learned trial magistrate found and held that the Appellants did not le a statement of defence to the counter claim. Moreover, the record shows that subsequently that the appellants led https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5895/eng@2026-09-17 7

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an application seeking for extension of time to le and serve a statement of defence to the counter claim out of time. The application by the Appellants was heard and dismissed vide ruling delivered on the 03.09.2025. 31. It is my humble view, that the Appellants were aorded all the opportunity to be heard during the trial. In fact, the Appellants, led various motions before the trial court; and same were dully heard and determined in accordance with the due process. The fact that the motions that were led by the Appellants were dismissed, does not constitute violation/breach of the right to fair hearing. 32. Additionally, it is worth recalling that even though the appellants herein did not le any statement of defence to the counter claim, the learned trial magistrate allowed the Appellants the latitude to tender evidence, in opposition to the counter claim. It suces to highlight that where a party does not le a defence to the claim or the cross claim [counter claim], then such a party can only participate in the proceedings by way of cross examination and making arguments, including submissions. 33. On the contrary, such a party cannot be allowed to tender or adduce evidence. Instructively, evidence by a party are tendered in furtherance of the pleadings led. Where no pleadings have been led by the party, same cannot tender evidence. In any event, where such evidence is tendered, same goes towards proving no issue [see Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Aukot & another (Interested Parties); Attorney General & another (Amicus Curiae) [2017] KESC 42 (KLR)]. 34. Be that as it may, I beg to point out that the Appellants herein were aorded extreme latitude and same placed before the court, the evidence pertaining to the suit property. Further, and in addition, the judgment of the trial court referred to the evidence tendered; and took same into account. 35. To my mind, the complaints by the Appellants’ that their right to fair hearing was violated, is a cry in the wilderness. The complaint is a red-herring. 36. I now move the second issue. The second issue relates to the assertion by the appellants that the learned trial magistrate erred in nding and holding that the Appellants had not led a statement of defence to the counter claim. The issue as to whether or not the Appellants had led a statement of defence to the counter claim was the subject of the ruling dated the 29.01.2025 and 03.09.2025. The two rulings [under reference] were not appealed against. It then means that the holding of the learned trial magistrate that the Appellants herein, had not led a statement of defence to the counter claim cannot be assailed vide the subject appeal. 37. In any event, the contention by the Appellants that same had led a statement of defence to the counter claim [which is not correct], amounts to approbating and reprobating at the same time. It is common ground that the appellants themselves approached the trial court with an application for extension of time to le a statement of defence to the counter claim out of time. The said application [dated 30.06.2025] was dismissed vide ruling dated the 03.09.2025. 38. I nd and hold that the contention seeking to impugn the nding that the Appellants had not led a statement of defence to the counter claim, reeks of dishonesty and deceit. Same holds no water. 39. The next issue constitutes the crux of this appeal. It is the outcome of this issue, that will determine whether or not the appeal succeeds, or otherwise. The issue is whether the Respondent proved its claim of ownership to and in respect of the suit property? 40. The Respondent laid a claim to the suit property and contended that same was duly allocated by the land committee under the directions of the area chief. PW1 [Mohammed Ali] testied that the land in question was given to the Respondent by the elders in 1996. The witness further averred that same had https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5895/eng@2026-09-17 8

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a letter dated the 11.10.2010, conrming that the land was duly allocated to the respondent, before a portion measuring 10 acres was curved out and given to some neighbours. 41. In addition, PW1 also testied that when a dispute arose between the current Appellants and the respondent, the dispute was addressed by the elders who found and held that the land belonged to the respondent. The witness however, posited that the Appellants refused to abide by the resolution of the elders. To this end, the witness referenced minutes dated the 04.08.2019. 42. It is important to highlight that the letter dated 11.10.2010 [PMFI – 4] and the minutes dated 04.08.2019 [PMFI-5] were never produced before the court. The said documents were merely marked for identication. Same did not constitute part of the record of the court and thus could not be considered by the trial court, in determining the dispute. 43. Be that as it may, the witness [PW1] contradicted his own testimony during cross examination. Whereas the witness had previously stated that the allotment of land by the elders was minuted, same beat an about turn during cross examination and stated that the land was allocated to the Respondent verbally. The witness added that the elders did not give/issue any documents. 44. Furthermore, the witness [PW1] had posited that the land in question is registered. The connotation is that the land is anchored on some documents of registration. However, during cross examination, the witness admitted that same has not tendered any document pertaining to the registration of the land in favor of the self- help group. 45. This is what PW1 stated during cross examination: “ The land is registered in the name of Moonlight. The registration document is in our group le. The former chairman had it. He died in January, 2025. The said document is not in court.” 46. The other witness who testied to the fact that the land in question belongs to the Respondent was PW2 [Ali Abdi Goto]. The witness averred that the Respondent procured and obtained documents pertaining to the allocation of the plot in 1997. The witness added that he saw the documents underpinning the allocation of the plot. 47. This is what PW2 stated during cross examination: “ Moonlight produced genuine documents showing that allocation was done in 1997. I saw the said document. The said document is a letter written by the Chief on 11.10.2010. Aliow said in that meeting that the land belonged to his father.” 48. PW3 [Hassan Mude Abdulraham] also referenced the minutes dated the 04.08.2019. However, the said minutes remained marked for identication. Notably, the same were not produced. Be that as it may, during cross examination, PW3 made startling assertions. 49. The witness stated thus: “ The minutes were for a meeting to resolve the dispute between us and the defendants. The meeting was chaired by the Chief. The minutes are not stamped by the chief. The minutes were not signed by the chief, myself or the defendants. Nobody signed the minutes. There were 52 elders in attendance. Nobody signed the minutes. We did not have any other meeting with the defendants over the dispute.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5895/eng@2026-09-17 9

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50. Even though, PW1 and PW2 had testied that the disputed land had been registered in 1997, PW5 [Dub Kuse Adi], who is the town administrator – Moyale; and who was called by the respondents, testied and averred that the land claimed by the Respondent had not been registered. 51. At this juncture it suces to reproduce the testimony of PW5 under cross examination. 52. The witness stated thus: “ There is no land in our records/register in the name of Moonlight. Moyale Town Council was established in 1995. If there was any registration or allocation of land after 1995, it would be writing of the town council.” 53. What I hear PW5 to be stating is that the disputed property, has never been registered. There are no records attesting to its registration at Moyale Sub County. This evidence contradicts the evidence that was tendered by PW1 and PW2, as pertains to registration of the suit property. I will return to this issue shortly. 54. The chief, who is said to have chaired the meeting that birthed the minutes dated the 04.08.2019 and to have written the letter dated 11.10.2010, was called and testied as PW6. The evidence of said witness is paramount. The witness denied the contents of the letter. The witness similarly, declined to produce the impugned letter, stating that he was not the author. 55. This is what PW6 stated in examination in chief: “ I am the assistant chief for Maisile sub Location is Heillu location. I heard a letter dated 11.10.2010. I do not know the said letter. I am not the author of the said letter. I am listed as the second person in the said letter as members present and indicated assistant chief – Maisile sub location. The letter is indicating written by Assistant chief Maisile / Heillu sublocation. The letter did not emanate from our oce. Adan Mohammed and myself are indicated to have been present the signature [sic] was our stamp there is not mine. ” 56. The testimony of PW6 angered the respondents and counsel. The Respondent sought to have the witness declared hostile. The court agreed and the witness was declared hostile. 57. Nonetheless, what is not lost on me is that the evidence by PW6 remains on record. The evidence under reference was not discredited. The evidenced exposed some sort of fraud; deceit; and usage of unauthentic documents, to lay a claim to the suit property. 58. Most importantly, it is worthy to recall, that the crux of the respondent’s case hinged on [sic] the minutes dated 04.08.2019 and the letter dated 11.10.2010. These two documents were never produced as exhibits. It means that the documents could not be used or deployed to prove ownership. 59. In the case of Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] KECA 334 (KLR), the Court of Appeal considered the legal implication[s] of a document marked for identication and whether same can be considered by a court of law in determining the dispute. The court stated as hereunder: “ 18. The mere marking of a document for identication does not dispense with the formal proof thereof. How does a document become part of the evidence for the case? Any document led and/or marked for identication by either party, passes through three stages before it is held proved or disproved. First, when the document is led, the document though on le does not become part of the judicial record. Second, when the documents are tendered or produced https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5895/eng@2026-09-17 10

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in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document. Third, the document becomes proved, not proved or disproved when the court applies its judicial mind to determine the relevance and veracity of the contents – this is at the nal hearing of the case. When the court is called upon to examine the admissibility of a document, it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the Court would look not at the document alone but it would take into consideration all facts and evidence on record. 19. The marking of a document is only for purposes of identication and is not proof of the contents of the document. The reason for marking is that while reading the record, the parties and the court should be able to identify and know which was the document before the witness. The marking of a document for identication has no relation to its proof; a document is not proved merely because it has been marked for identication. 20. Once a document has been marked for identication, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit, it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an unauthenticated account.” 60. Despite the established position of the law, as captured in the preceding paragraph, learned trial magistrate took into account and relied upon [sic] the minutes of the dispute resolution meeting. The said minutes were only marked as PMFI 5. The minutes were never produced. In this regard, the minutes did not form part of the evidence. The consideration of the minutes by the trial court is a serious error. 61. Other than the foregoing, the learned trial magistrate, also proceeded on the basis that the mere fact that the Appellants had not led a defence to the counter claim, then it means that the assertions [allegations] contained in the body of the counter claim, are deemed admitted. This is another error. 62. The fact that the adverse party, in this case, the Appellants have not led a denial to the claim/ cross claim, does not mean that the assertions, are admitted. The party making the assertions, is still chargeable with the burden of proof. This has been and still is the position of the law. 63. In the case of CMC Aviation Ltd v. Crusair Ltd (No1) [1987] KLR 103the Court of Appeal [per Madan JA] stated thus: “ …Proof is the foundation of evidence. As stated in the denition of “evidence” in section 3 of the Evidence Act, evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation, is proved or disproved. Averments are matters the truth of which is submitted for investigation. Until their truth has been established or otherwise they remain unproven....” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5895/eng@2026-09-17 11

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64. The foregoing position was reiterated in Moi v Muriithi & another [2014] KECA 642 (KLR), where the Court of Appeal stated thus: “ 55. It is a rmly settled procedure that even where a defendant has not denied the claim by ling of defence or an adavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.” 65. Bearing in mind, what I have said above, there is no gainsaying that the Respondent did not prove the claim in respect of the suit property. Moreover, the impugned judgment is colored, nay, replete with fundamental errors. The errors are foundational. The consequences thereof are far-reaching. 66. The last issue for consideration relates to the appropriate reliefs [if any] to be granted. I have found and held that the disputed property was not registered. Moreover, it is common ground that the land in question is unregistered and thus constitutes part of what is now community land. There is no way anyone, whether same be the land committee [which is unknown] or the town administrator can proceed to allocate or register such land. 67. The process pertaining to the registration of unregistered land, which no doubt, forms part of community land, is stipulated in the Community Land Act, 2016. 68. In view of the foregoing, I hold the opinion that the orders and declarations that were issued by the trial court, are untenable. Moreover, the trial court could not proceed to make declaration pertaining to and concerning land, whose description are unknown. To my mind, the decree by the learned trial magistrate oends the provisions of Order 4 Rule 3 of the Civil Procedure Rules, 2010. 69. The said provisions stipulate thus: 3. Where the subject-matter of the suit is immovable property [Order 4, Rule 3] Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sucient to identify it. 70. In the premises, the appropriate relief in the circumstances is to set aside the impugned orders of the trial court and to direct that the land in question forms part of the community land. The same can only be dealt with in the prescribed manner. Conclusion 71. The appellant had raised various grounds to impugn the judgment. However, in the course of interrogating the grounds, I have found merit in the issue pertaining to proof of ownership of the suit property by the respondent. For good measure, I have found that the Respondent did not establish any ownership/ proprietary rights to and in respect of the suit property. 72. Further, and in addition, I have also found that the learned trial magistrate took into account and considered documents, namely; minutes, which had not been produced. The consideration of the impugned minutes, has occasioned a miscarriage of justice. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5895/eng@2026-09-17 12

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73. In a nutshell, the appeal succeeds. Final orders: 74. In the upshot, the nal orders that commend themselves to the court are: i. The Appeal be and is hereby Allowed. ii. The Judgment of the learned trial magistrate dated 27.02.2026 [albeit, erroneously indicated as 27.02.2025] and the consequential decree arising therefrom be and are hereby set aside. iii. In lieu thereof, an order be and is hereby made dismissing the respondents’ counter claim dated 27.02.2023. iv. Costs of the appeal and are hereby awarded to the Appellants. v. The Appellant shall also have costs of the counter claim in the lower court. vi. The Costs in terms of clause [iv] and [v] shall be agreed upon and in default be taxed/assessed, in the conventional manner. 75. For the avoidance of doubt, it is hereby declared that the disputed land, which remains unregistered; and which falls within the County of Marsabit, constitute Community land. The same can only be dealt with in accordance with the law. 76. Save for the observation in terms of paragraph [75] hereof, the nal and dispositive orders, are articulated under paragraph [74] of this Judgment. 77. It is so ordered. DATED, SIGNED AND DELIVERED AT ISIOLO ON THIS 17TH DAY OF SEPTEMBER, 2026 OGUTTU MBOYA; FCIArb; CPM [MTI-EA]. JUDGE. In the presence of: Court Assistant: Zakayo/Mukami Mr. Mutunga for the Appellants Ms. Odoyo for the Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5895/eng@2026-09-17 13

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