Ali Isacko v Shuge Chude Lare

i. That the Honourable Learned Magistrate erred and misdirected herself in law and in fact in shifting the burden of proof from the Respondent (plaintiff) to the Appellant by requiring the Appellant to prove ownership or disprove the Respondent’s title despite the Appellant not challenging ownership. (Misapplication of Sections 107– 109 of the Evidence Act) ii. That the Honourable Learned Magistrate erred and misdirected herself in law and in fact by treating the Respondent’s title deed as adequate proof of trespass, contrary to evidence law, which required independent proof linking the Appellant to the alleged construction. (Failure to Evaluate Whether Trespass Was Proved) iii. That the Honourable learned Magistrate erred and misdirected himself in law and in fact by failing to analyses the key issue—whether the Appellant built or caused the construction of the house—despite complete absence of evidence connecting the Appellant to the construction. (Failure to Determine Whether the Appellant Was the Builder) iv. That the Honourable learned Magistrate erred and misdirected himself in law and in fact by failing to give due consideration to the Appellant ’s testimony that:  He was not the builder;  the structure belongs to his mother;  his presence on the land was as caretaker only. This evidence created reasonable doubt which the trial court failed to address. (Ignoring Material Evidence Provided by the Appellant. Page 2 of 17

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v. That the Honourable Learned Magistrate erred and misdirected himself in law and in fact by granting eviction orders without any:  survey report,  adjudication map  mutation, boundary identification, to establish that the house stands within LR Marsabit/Jirme/1372. (Failure to Require Survey or Boundary Verification)  vi. That the Honourable Learned Magistrate erred and misdirected himself in law and in fact by issuing eviction and injunction orders without proof of the exact location of the structure, contrary to the Land Registration Act. (Entering Judgment Without Establishing Encroachment) vii. That the Honourable Learned Magistrate erred and misdirected herself in law and in fact by delivering a judgment that is against the weight of evidence, speculative, and unsupported by legal reasoning on the central issue of trespass. (Reaching a Decision Against the Weight of Evidence) viii. That the Honourable Learned Magistrate erred and misdirected himself in law and in fact by granting prayers not supported by evidence as the court erred in awarding prayers (a), (b) and (c) based solely on ownership without proof of wrongful acts by the Appellant. (Granting Prayers Not Supported by Evidence) Page 3 of 17

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4. The subject appeal came up for directions on the 02.07.2026; and on the 20.07.2026, respectively, whereupon learned counsel for the Appellant intimated to the court that same had filed and served the record of appeal. In addition, it was posited that the record of appeal was complete. Counsel thereafter sought directions pertaining to and concerning the disposal of the appeal. Moreover, Learned counsel for the Appellant proposed to canvass the appeal by way of written submissions. 5. With the concurrence of the learned counsel for the respondent, the court proceeded to and issued directions. The directions were: The appeal shall be heard before one judge sitting at Isiolo; the appeal shall be canvassed by way of written submissions; the Appellant shall file and serve written submissions within 14 days; the Respondent shall file and serve written submissions within 14 days from the date of service; and the Appellant shall be at liberty to file and serve rejoinder submissions [if any] within 7 days from the date of service. 6. The Appellant filed written submissions dated the 10.07.2026 and wherein the Appellant has highlighted five [5] key issues. The issues are: Whether the Learned Trial Magistrate shifted the burden of proof to the Appellant; whether proof of ownership per se was sufficient to warrant a finding of trespass; whether the Respondent proved that the Appellant committed the alleged trespass; whether the Respondent proved that the impugned structures stood on the impugned property; and whether the judgment was against the weight of evidence on record. 7. Regarding the first issue, learned counsel for the Appellant has submitted that the Learned Trial Magistrate shifted the burden of proof to the Appellant to [sic] prove/establish ownership of the parcel of land Page 4 of 17

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namely; LR No. Marsabit/Jirme /676, which the Appellant contended belonged to the Appellant’s mother. It has been contended that the issue in dispute did not touch on or concern ownership of LR No. Marsabit /Jirme /676, but the alleged trespass onto the suit property. To this end, it was posited that the burden of proof fell on the shoulders of the Respondent and not otherwise. 8. Secondly, it has been submitted that the Learned Trial Magistrate erred in law in finding and holding that proof of ownership of the suit property, by and of itself, was sufficient to constitute trespass. Learned counsel has argued that ownership is one thing, whereas trespass, is another. In particular, it has been submitted that whereas the Respondent indeed proved the ownership of the suit property, same however, failed to prove trespass. 9. Thirdly, it has been submitted that the Learned Trial Magistrate failed to properly evaluate and analyze the totality of the evidence on record; and thereby arrived at an erroneous conclusion. Moreover, it has been posited that the Learned Trial Magistrate failed to discern the material contradictions existing in the evidence of the respondent. 10.The other issue that has been raised by the learned counsel for the Appellant relates to the failure by the Respondent to call or summon an expert witness, to testify and affirm that the structure complained of, fell within the suit property and not otherwise. It has been submitted that it behooved the Respondent to establish vide credible evidence that the structure sat on the suit property and not on LR NO. Marsabit/Jirme/676. Page 5 of 17

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11.Finally, learned counsel for the Appellant has submitted that the conclusion and the findings that were arrived at by the Learned Trial Magistrate, were contrary to and at variance with the evidence on record. Furthermore, it has been submitted that the Learned Trial Magistrate adopted a perfunctory approach, while evaluating the evidence and thus failed to take cognizance of the deficiencies in the respondent’s case. To this end, it has been submitted that the judgment of the trial magistrate was predicated on assumptions rather than on evidence and facts. 12.Premised on the foregoing, learned counsel for the Appellant has invited the court to find and hold that the subject appeal is meritorious. The court has been implored to allow the appeal; set aside the impugned judgment; substitute therefore, an order dismissing the Respondent’s suit in the lower court; and to award costs to the Appellant. 13.Learned counsel for the Respondent was present when the directions pertaining to the hearing of the appeal were issued. In addition, learned counsel for the Respondent was also privy to the set timelines for purposes of filing the written submissions. Be that as it may, when the matter came up on the 17.09.2026, it transpired that the Respondent had not filed any submissions. 14.Additionally, learned counsel for the Appellant intimated to the court that the same had not been served with any submissions. Besides, counsel posited that same had checked the court tracking system [CTS] and had not discerned any submissions by/ on behalf of the respondent. Page 6 of 17

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15.I wish to add that I have also reviewed the court tracking system and no written submissions were or had been filed as at the 17.09.2026. In any event, there is no gainsaying that the submissions [if any] ought to have been filed and served upon learned counsel for the Appellant in accordance with the law. 16.Having reviewed the record of appeal; the pleading that was filed by the parties; the evidence tendered [both oral and documentary]; and upon considering the written submissions by the Appellant, two key issues emerge for determination. The issues are: Whether the Respondent duly proved/established his claim as pertains to trespass or otherwise; and whether the Learned Trial Magistrate correctly apprehended and applied the law pertaining to the plea of trespass, or otherwise. 17.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 first Appeal. By virtue of being a first 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 first instance. The court is obligated to review the evidence and determine whether the findings and conclusion[s] arrived at by the trial magistrate, accord with the evidence on record and the legal principles. 18.The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding 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 findings are based Page 7 of 17

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on misapprehension of the evidence and law; and that there is a demonstrable error of principle, which vitiates the findings of the Trial Court. 19.Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/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 at will. More importantly, Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya, regulates its exercise. 20.The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first 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. 21. 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 differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and reevaluate the evidence on a first 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 Page 8 of 17

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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 significance 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 differ from the finding 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.” 22.I now wish to examine the first issue. The issue touches on and concerns, whether the Respondent proved his claim as pertains to trespass or otherwise. It is common ground that the burden of proving the assertions contained in the body of the plaint, fell on the shoulders of the respondent. Instructively, it is the Respondent who had contended that the Appellant had entered upon/ trespassed on a portion of the suit property and commenced to construct a structure thereon, albeit without his [respondent’s] permission. 23.In particular, the Respondent herein had posited that the impugned structure fell within the suit property. It is the construction of the structure that was contended to found the plea of trespass. To this end, it was incumbent upon the respondent, not only to prove ownership of the suit property, but to demonstrate that there had been offensive actions /activities, being undertaken on the suit property. Page 9 of 17

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24.It is imperative to underscore that trespass constitutes offensive actions or activities, that are undertaken over or on a portion of land, belonging to another, albeit without the lawful authority, permission, or consent of the owner. Consequently, whosoever seeks to prove trespass, the Respondent not excepted, is obligated to prove: a. Title to or ownership of the land in question, or b. Right to immediate and exclusive possession – Lessee c. Offensive actions or activities on the land d. Absence of authority; consent; permission of the owner. 25.Trespass was ably defined in the case of Church Commissioners for Kenya of the Anglican Church of Kenya v Wayuga [2024] KECA 1048 (KLR). The Court of Appeal stated thus: 53. “Trespass is described under the Trespass Act Cap 294 to mean “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”. On the other hand, a continuing trespass is defined in Jowitt’s Dictionary of English Law 2nd Edition (page or paragraph?) as follows:-“A continuing trespass is one which is permanent in its nature; as where a person builds on his own land so that part of the building overhangs his neighbor’s land”.In Black’s Law Dictionary 8th Edition (page or paragraph?), a continuing trespass is defined as:-“A trespass in the nature of a permanent invasion on another’s rights, such as a sign that overhangs another’s property.” Finally, in Clerk & Lindsel on Torts 16th Edition, paragraph 23 01, it is stated that:- “Every continuance of a trespass is a fresh trespass of which a new cause of action arises from day to day as long as the trespass continues.” Page 10 of 17

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53.From the above definitions of the term “trespass” by the eminent learned authors, it is clear that any unauthorized entry whether present or continuous is trespass. In this case, it is indeed common ground that the Appellant entered into and has remained in occupation of the suit property. The Appellant ’s continued occupation of the said property from the 1st date of entry in so far as it is unauthorized by the Respondent amounts to trespass and remains as such to date. The respondent’s claim for trespass being a continued tort is, therefore, not time barred. We find no fault with that finding by the trial court.” 26.Did the Respondent prove trespass? The Respondent contended that same is the lawful and legitimate owner of the suit property. To this end, the Respondent tendered and produced assorted documents including copy of the title deed. The Appellant herein did not challenge or impeach the respondent’s title. In any event, the fact that the Respondent owned the suit property, was not in contest. 27.However, it is imperative to recall that upon being served with the plaint, the Appellant duly entered appearance and filed a statement of defence. The Appellant denied the claims by /on behalf of the respondent. In addition, the Respondent averred thus: ‘The structure complained of does not sit on the suit property; the structures/construction sits on LR No. Marsabit/Jirme/676; the said parcel of land belongs to the Appellant ’s mother; the complaints by the Respondent are misconceived; and the Appellant does not lay any claim to or in respect of the suit property.’’ Page 11 of 17

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28.Additionally, the Appellant posited that the suit property and LR No. Marsabit/Jirme/676 sit on different locations. In particular, the Appellant contended that the plea of trespass did not lie. 29.It is worthy to recall that Appellant herein reiterated the same position during his testimony before the court and during his cross examination. This is what the Appellant stated: “I do not remember when the house was built. All I know is that there is a house built there and it was built by my mother. The land on which the house is built belongs to my mother.” 30.On further cross examination by learned counsel for the Respondent, the Appellant who testified as DW1 stated thus: “If I say land isn’t mine and that I built on it, he should prove. I did not build on the land. When construction started I would say I am always there in the farm. I said I am the one who usually takes care of the land and give feedback to my mother on what is happening.” 31.There is no gainsaying that the Respondent was put on notice that the structure complained of sits on LR No. Marsabit/Jirme/676. If the Respondent contended that the structure sat on the suit property and thus constituted trespass, it was incumbent upon the Respondent to prove the said assertions. Suffice it to state that proof of the assertion could only be undertaken by way of expert opinion or witness. Such a witness would include a surveyor or better still, a Land Registrar. Page 12 of 17

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32.In the case of Barta (Suing as the Legal Representative to the Estate of the Late Oloishuro ole Barta Kura) v Farah & another [2026] KECA 764 (KLR), the Court of Appeal stated thus: “ 35……..Before determining whether there was trespass, it was incumbent on the parties and by extension the superior court to determine the boundaries of the property of the Appellant and the respondents respectively. The function of determining boundary is exclusively the realm of the Land Registrar and courts are very slow if at all to interfere with the findings of the Land Registrar in matters relating to boundaries.” 33.Nevertheless, it is not lost on me that the Respondent herein did not call any expert witness. On the contrary, the Respondent was content with his testimony. The testimony by the Respondent was deficient and incapable of demonstrating the extent of the suit property; and whether the offensive structure sat on the suit property or on LR No. Marsabit/Jirme/676. 34.It bears repeating that the burden of proof fell on the respondent. The Respondent was obligated to tender credible and plausible evidence. The Respondent could not throw assertions and allegations, on the face of the court and then expect favourable treatments. The burden of proof could only be discharged on the basis of the evidence. Nothing short of evidence would suffice. 35.In the case of Moi v Muriithi & another [2014] KECA 642 (KLR) , the Court of Appeal reaffirmed the established position of the law as pertains Page 13 of 17

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to the burden of proof. It was clarified that the burden of proof remained upon the claimant, even where no defence or denial has been filed by the adverse party. 36.The Court stated thus: “It is a firmly settled procedure that even where a defendant has not denied the claim by filing of defence or an affidavit 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.” 37.My answer to issue number one is to the effect that Respondent did not prove/establish trespass. It suffices to highlight that trespass is not proven by merely demonstrating ownership. Trespass denotes actions that interfere with the rights of the owner of the property. [See Doshi v Chemutut & 7 others [2025] KECA 776 (KLR)]. 38.I now wish to turn to the second issue. The second issue relates to whether the Learned Trial Magistrate correctly apprehended and applied the law pertaining to trespass or otherwise. It must be remembered that the Respondent was not merely claiming to be the owner of the suit property, but same was positing that the Appellant had trespassed. In this regard, the Respondent was obligated to prove ownership or title to land, in the first instance. Page 14 of 17

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39.However, the Respondent duty would not end with the mere proof of title to or ownership of the suit property. Similarly, the duty of the trial court would not end with the mere facts that the Respondent had shown title to the suit property. On the contrary, proof of title, or ownership rights, was merely the precursor to demonstrating trespass. 40.Did the Learned Trial Magistrate correctly apprehend the law on trespass? I am afraid not. The Learned Trial Magistrate conflated ownership and trespass. The Learned Trial Magistrate proceeded on the basis of hypothesis and assumptions. There was need for evidence to be placed before the trial court to prove the assertions of trespass. 41.Secondly, the Learned Trial Magistrate adopted a perfunctory approach in analyzing the evidence. The trial magistrate was alive to the contention that the structure complained of sat on LR. NO Marsabit/Jirme/676, but did not bother to consider the implications of such assertions, by the Appellant. Quite clearly, no order of eviction could issue as against the Appellant without authenticating whether the structure complained of sat on the suit property. 42.Thirdly, the Learned Trial Magistrate misapprehended, the burden of proof and on whom same lay. The judgement shows that the trial magistrate indeed shifted the burden of proof to the Appellant. The approach deployed by the Learned Trial Magistrate, was contrary to the established position of the law. 43.I agree with learned counsel for the Appellant that the Learned Trial Magistrate correctly cited the provisions of Sections 107 and 109 of the Page 15 of 17

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Evidence Act, Chapter 80 Laws of Kenya, but failed to correctly apply same. Equally, I agree with learned counsel for the Appellant that the impugned judgment is predicated more on assumption; and hypothesis; than proof. Conclusion: 44. It was incumbent upon the Appellant to isolate and pin point the errors; misapprehensions; and incorrect application of the principles of law by the Learned Trial Magistrate. It is common ground that this court can only interfere with the judgment of the trial court on circumscribed grounds. Absent proof of the misapprehension or misapplication of the law, this court is obligated to defer to the findings and conclusions of the trial court. [See Mwanasokoni versus Kenya Bus Services Limited [1985] eKLR; and Jabane versus Olenja [1986] eKLR, respectively]. 45.Be that as it may, I wish to point out that the judgment of the Learned Trial Magistrate is wrought with several errors. The errors are fundamental. The errors go to the root of the impugned judgment. To this end, the impugned judgment is vitiated. 46.In a nutshell, I come to the conclusion that the appeal is merited. The appeal deserves to be allowed. On the contrary, the impugned judgment cannot be allowed to stand. Final orders: 47.In the end, the final orders that commend themselves to the court are: i. The Appeal be and is hereby Allowed. Page 16 of 17

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ii. The Judgment of the Learned Trial Magistrate dated the 11.11.2025 and the consequential decree arising therefrom be and is hereby set aside. iii. In lieu thereof, there be and is hereby substituted an order dismissing the respondent’s suit vide Marsabit SPM ELC E007 of 2020. iv. Costs of the Appeal be and are hereby awarded to the Appellant . v. The Appellant shall also have Costs of the suit in the lower court. vi. The Costs in terms of [iv] and [v] shall be agreed upon and in default be taxed in the conventional manner. 48.It is so ordered. DATED, SIGNED AND DELIVERED AT ISIOLO ON THIS 1ST DAY OF OCTOBER, 2026 OGUTTU MBOYA; FCIArb; CPM [MTI-EA]. JUDGE. In the presence of: Court Assistant: Zakayo/Mukami Mr. Gideon Ogude for the Appellant N/a for the Respondent- Page 17 of 17

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