Kimathi Wambua v Mbithi Mutava Nzioka & another

255 (suit land), which his father, Mutava Nzioka (deceased), had gifted and transferred to him. He therefore sought the following orders from the trial court: a. A declaration that the 1st respondent is the legal and legitimate owner of the property known as Plot No. 255, approximately 1 acre in size, situated in Kituluni Central; b. Orders permanently prohibiting or restraining the appellant, his agents, employees, servants, accomplices and/or any other person from interfering with the 1st respondent’s quiet possession of the property known as Plot No. 255, approximately 1 acre, situated in Kituluni Central; c. An order compelling the 2nd respondent to furnish the 1st respondent with the yellow card and/or the certificate of ownership of the property known as Plot No. 255, approximately 1 acre, situated in Kituluni Central; d. An order directing the appellant to pay the 1st respondent the costs of this suit and interest thereon; and e. Any other order that this court will deem just and fit in the circumstances. LA E093 OF 2025 JUDGMENT 2

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2. Upon service of the pleadings, the appellant filed an amended defence and counterclaim dated 22 November 2023, in which Mutuku Mutava (Mutuku), a brother of the 1st respondent, was joined as the 2nd defendant, and the 2nd respondent was maintained as an interested party. The appellant admitted certain assertions, denied others, and stated he was a stranger to some. He asserted that although the 1st respondent was once the owner of the suit land, he transferred it to the appellant for consideration by sale on 29 August 2013. 3. The appellant stated that he had been in occupation of the suit land from that date until 2020, when the 1st respondent purported to assert a claim. He further stated that on 29 August 2013, he delivered the purchase price to Mutuku, acting as an agent of the 1st respondent. He consequently sought the following orders: a) A declaration that the appellant is the legal and beneficial owner of the 1 acre of property known as Muka Mukuu Farmers Cooperative Ltd LR No. 10967 (Plot 255), having legitimately purchased it for value from the 1st respondent; b) An order for a permanent injunction restraining the 1st respondent, Mutuku, or any other person claiming through them, their agents, LA E093 OF 2025 JUDGMENT employees and personal 3

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representatives from trespassing on Muka Mukuu Farmers Cooperative Ltd LR No. 10967 (Plot 255); c) An order directing the 2nd respondent to effect the transfer of the property known as Mukamukuu Farmers' Co-operative Ltd, LR. No 10967, to the appellant; d) As an alternative to prayers (a) and (b) above, an order directing the 1st respondent and Mutuku to refund the current value of the land, as per the valuation report filed in court; e) Costs of the suit; and f) Any other order that this honourable court deems fit and just to grant. 4. In his reply to the defence and in the defence to the counterclaim, the 1st respondent denied the contents of those pleadings and asserted that he was a stranger to the dealings over the suit land between the appellant and his brother Mutuku. 5. Subsequently, the case proceeded to a hearing before the trial court, where the appellant gave evidence and relied on his witness statement, oral testimony and several documents he produced in support of his case. David Muisyo Muindi and Anthony Nganda Nzuve, a valuer, led his evidence. The 1st respondent also testified, relying on his witness statement, LA E093 OF 2025 JUDGMENT 4

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oral testimony, and several documents he produced in support of his case, and Mutuku led his evidence. 6. Thereafter, in framing several issues for determination, the impugned judgment found that the appellant failed to prove that the 1st respondent attended the meeting and executed the sale agreement; that the appellant failed to prove payment of the consideration to the 1st respondent; and that there was no valid contract between the appellant and the 1st respondent. Therefore, the learned trial magistrate found the appellant’s counterclaim not merited and awarded the 1st respondent costs of the suit and counterclaim. 7. Dissatisfied with this decision, the appellant appealed to this court and filed a memorandum of appeal dated 15 December 2025, where he questioned the impugned judgment on several grounds, and maintained that the learned trial magistrate erred in law and fact in: a. Misdirecting himself on the burden and standard of proof applicable to civil claims and improperly elevating the evidentiary threshold beyond that required in civil proceedings. b. Drawing an adverse inference against the appellant for failure to call the advocate who attested the agreement. LA E093 OF 2025 JUDGMENT 5

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c. Treating the impugned sale agreement as incapable of proving its own execution once challenged, while disregarding settled law thereon. d. Failing to properly evaluate, reconcile and weigh the documentary evidence on record. e. Holding that the respondent was not required to adduce forensic, expert or other cogent rebuttal evidence. f. Misapplying the doctrine of burden shifting, and by wrongly retaining the entire burden of proof upon the appellant throughout the proceedings. g. Failing to consider, analyse and apply the doctrines of ostensible authority, implied agency, and estoppel, h. Adopting an unduly rigid and technical approach to the law of agency, and by failing to appreciate that authority to receive consideration may be implied from conduct, surrounding circumstances, and family dealings, and need not be conferred in writing. i. Finding that payment of consideration was not proved. j. Failing to evaluate the legal and equitable consequences of the appellant's long, open and uninterrupted possession of the suit property from 2013. LA E093 OF 2025 JUDGMENT 6

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k. Selectively evaluating witness credibility, unfairly discounting the appellant's witnesses as ‘aligned', while accepting the respondent's testimony at face value. l. Issuing mandatory and coercive orders against the 2nd respondent compelling the issuance of ownership documentation without a proper evidentiary foundation. m. Dismissing the appellant's counterclaim. n. Failing to consider the totality of the evidence and the conduct of all parties. 8. Accordingly, the appellants urged this court to allow the appeal with costs, to overturn the impugned judgment and to substitute it with an order allowing the appellants' counterclaim, to award costs of the appeal and of the lower court suit, and, lastly, to issue any other order it may deem just and fit in the interests of justice. 9. As this is a first appeal, the authority of this court is outlined in Order 42 Rule 32 of the Civil Procedure Rules. Additionally, as an appellate court, this court will not interfere with the impugned judgment unless it is satisfied that the learned trial magistrate misdirected himself and thereby reached an incorrect decision, exercised his discretion wrongly, and caused injustice through such erroneous exercise of discretion. The role of an appellate court was aptly LA E093 OF 2025 JUDGMENT 7

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described in the decision of Watt v Thomas [1947] AC, 484 at p 485, which was cited with approval in the Court of Appeal decision of Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others [2018] eKLR, thus: “Lord Simon’s speech in Watt v Thomas [1947] AC, 484 at p 485 as follows: “….an appellate court has, of course, 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 is really 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 the trial and especially if that conclusion has been arrived at on conflicting 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 LA E093 OF 2025 JUDGMENT 8

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trial judge as to where credibility lies is entitled to great weight…” 10. Unfortunately, despite clear directions on 2 March 2026 regarding page limits for submissions, issued in the presence of Mr. Munguti, counsel for the appellant, his law firm on record, Ms. Munguti Ngulukyo & Co Advocates, ignored those directions and filed written submissions dated 2 April 2026 that far exceeded the page limits. In the circumstances, and guided by the Supreme Court of Kenya decisions of Kenya Airports Authority v Otieno, Ragot & Company Advocates [2023] KESC 104 (KLR) and Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others [2023] KESC 69 (KLR), this court hereby strikes out the appellant’s submissions. 11. As for the respondent, his law firm on record, Ms. Masaki, Omayio & Gathu Advocates LLP, filed written submissions dated 5 June 2025, which this court has considered. Thus, having considered the record, grounds of appeal, and respondent’s submissions, the singular issue for determination that will adequately determine the grounds of appeal is whether the learned trial magistrate erred in finding that the appellant did not prove his counterclaim to the required standards and found that the 1st respondent had proved his. We now deal. LA E093 OF 2025 JUDGMENT 9

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12. Before the trial court, it was uncontroverted from the evidence that, according to the records of the 2nd respondent, the 1st respondent was the proprietor of the suit land. The sole point of contention between the appellant and the 1st respondent concerned the sale agreement dated 29 August 2013, which the appellant claimed the 1st respondent executed, while the 1st respondent denied having executed it. 13. At a glance, the contract appears to be compliant with Section 3(3) of the Law of Contract Act, as it is in writing and purportedly executed and attested by the parties. However, after considering the evidence before him and ascertaining who bore the burden of proof as stipulated by Sections 107 and 109 of the Evidence Act, as well as the principles concerning the shifting of evidential burden, he found that the evidence presented did not establish the presence of the 1st respondent at the location where the agreement for sale was purportedly executed. 14. Sections 107 and 109 of the Evidence Act delineate the burden of proof as follows: “107. Burden of proof. (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 LA E093 OF 2025 JUDGMENT 10

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to prove the existence of any fact it is said that the burden of proof lies on that person. 109. Proof of particular fact. 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.” 15. The Supreme Court of Kenya decision in Munya v The Independent Electoral and Boundaries Commission & 2 others [2014] KESC 38 (KLR), paragraph 182, which was relied upon by the learned trial magistrate, held as follows on who bears the burden of proving a fact:“The person who makes such an allegation must lead evidence to prove the fact. She or he bears the initial legal burden of proof which she or he must discharge. The legal burden in this regard is not just a notion behind which any party can hide. It is a vital requirement of the law. On the other hand, the evidential burden is a shifting one, and is a requisite response to an already-discharged initial burden. “ LA E093 OF 2025 JUDGMENT 11

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16. When addressing the essence of the doctrine of balance of probabilities, the Court of Appeal in Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] KECA 616 (KLR) cited with approval the decision of Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372, as follows: “Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say:“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” ‘ LA E093 OF 2025 JUDGMENT 12

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17. In this case, the appellant averred in the counterclaim that the 1st respondent, together with Mutuku and their witnesses, attended the offices of counsel Ms. Priscilla Mtawe Kioko on 29 August 2013 and executed the agreement for sale. He further stated that, after the parties signed the agreement, he departed to withdraw cash to settle the purchase price. Upon his return, he observed that the 1st respondent had become ill and had left the premises. As a result, he left the purchase price amounts with Mutuku in accordance with the 1st respondent's instructions. To substantiate his claim, the respondent tendered the agreement for sale, thereby discharging the legal and evidential burden of proof. 18. In response to this assertion and evidence, the 1st respondent, in denying knowledge of the agreement, adduced evidence in rebuttal in the form of a detailed invoice note from M. P. Shah Hospital, where he was undergoing a medical procedure on 29 August 2013 from around 7 am to 4 pm. Documentary evidence shows that he was ill throughout this period. Accordingly, having rebutted the appellant’s evidence, the evidential burden shifted back to the appellant to produce further evidence to controvert the 1st appellant’s evidence, which could have included expert testimony from a document examiner to determine whether the 1st respondent had indeed executed the agreement, or testimony from counsel Ms. Kioko as an independent witness. Unfortunately, he did not. LA E093 OF 2025 JUDGMENT 13

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19. Furthermore, both the appellant and the 1st respondent called witnesses to the agreement for sale as witnesses. The 1st respondent’s witness, Mutuku, supported the 1st respondent’s case and affirmed that on 29 August 2013 he executed the agreement for sale as a witness, and that the vendor therein was the deceased and not the 1st respondent, who had long transferred the suit land to the 1st respondent. Conversely, David Muisyo Muindi, a witness called by the appellant who also witnessed the agreement for sale, stated that the 1st respondent was the one who executed the agreement for sale as vendor. Given this conflicting evidence, the probabilities were evenly balanced. Accordingly, the appellant failed to discharge the legal and evidential burden, as guided by the decision in Miller v. Minister of Pensions (supra). 20. Consequently, this court reaches the same conclusion as the learned trial magistrate that the appellant did not prove his case on the balance of probabilities. It finds that the learned trial magistrate did not err in his analysis and findings. It also finds that he did not err in entering judgment in favour of the 1st respondent. This court affirms the lower court’s judgment. 21. Therefore, for the reasons and findings set out above, the appeal is dismissed, and this court upholds the orders issued in the judgment dated 27 November 2025. Since it is trite law LA E093 OF 2025 JUDGMENT 14

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that costs follow the event, the 1st respondent, who participated in these proceedings, shall have the costs of this appeal. Judgment accordingly. Delivered and Dated at Machakos this 29th day of September, 2026. HON. A. Y. KOROSS JUDGE 29.09.2026 Judgment delivered virtually through Microsoft Teams Video Conferencing Platform; In the presence of; Ms. Kanja Court Assistant. Mr. Munguti for appellant. Mr. Omaiyo for the 1st respondent. LA E093 OF 2025 JUDGMENT 15

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