George Cheburet Barbo & 125 Others v Raymond Kurui Chelimo & 3 others

trial court dismissed the appellant’s case on ground that they failed to prove their claims against the defendants/Respondents on a balance of probabilities. 2. The Appellants herein, being aggrieved and dissatisfied by the decision/judgment of the trial court appeal against the whole of the decision and or judgment and sets forth the following grounds of appeal; i. That the learned magistrate erred in both law and fact by failing to properly evaluate the evidence on record and therefore arriving at a manifestly wrong conclusion and judgment; ii. That the learned magistrate erred in both law and fact by rendering a decision that divests the appellants group members from the control, regulation and benefit of their group with no recourse to them and which decision is an antithesis to the well settled principles governing principal/agent and or master/servant relationships as the instant case, thus arrived at a manifestly wrong and erroneous conclusion and judgment; iii. That the Learned magistrate erred in law and fact by delivering a Judgment which was inconsistent with the law, pleadings and framed issues for consideration reaching an erroneous conclusion in law and in fact thus occasioning a serious miscarriage of justice to the Appellants; iv. That the learned magistrate erred in both law and fact by rendering an incomplete judgment based on a wrong evaluation and consideration of the pleadings, evidence on record, submissions and the applicable law and principles; v. That the learned magistrate erred in both law and fact by exercising her discretion capriciously and injudiciously thus arriving at a manifestly wrong conclusion and judgment; vi. That the learned magistrate erred in law and fact by expressing outright bias against the appellants by disregarding their evidence thus arriving a manifestly wrong conclusion and judgment; vii. That the learned magistrate erred in both law and fact by maintaining the burden of proof on the Appellants throughout even when the burden had shifted to the Respondents; viii. That the Learned magistrate erred in law and in fact and further misdirected herself by failing to appreciate the admitted facts by the parties hence reaching an erroneous conclusion in law and fact; ix. That the Learned magistrate erred in law and in fact by misinterpreting the law on the rights conferred to group members who have formed themselves into a legal group thus arrived at a wrong conclusion; x. That the learned magistrate erred in both law, principles and fact by failing to establish that there was a fiduciary duty owed to the appellants by the respondents who failed to discharge it thus arrived at a wrong conclusion and judgment; xi. That the learned magistrate erred in both law and fact by failing to consider the material, submissions by the appellants and authorities before her and instead wholly relying on the scanty submissions by the respondents and thus arrived at a wrong conclusion and judgment; xii. That the learned magistrate erred in both law and fact by accepting and finding for the Respondent's case when in fact the same agreed and supported the Appellants' case; xiii. That the learned magistrate erred in both law and fact by entering a judgment that had no legal and or factual foundation; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4194/eng@2026-03-12 2

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3. 4. xiv. That the learned magistrate erred in law and fact by clearly misapprehending the case at hand and thus arriving at a wrong conclusion and judgment; xv. That the learned magistrate erred in law and fact by rendering a judgment that did not meet the requirements of Order 21 rule 4 of the Civil Procedure Rules; The appellants prays for and proposes to ask the court for the following orders; a. this appeal be allowed with costs; b. the entire judgment in the lower court by Hon. C.R.T. Ateya, Principal Magistrate in Kabarnet Senior Principal Magistrate's Court Civil Case No. E046 of 2022 and delivered on 22/01/2025 be set aside; c. the court herein be pleased to enter judgment in favour of the Appellants against the Respondents as prayed and set forth in their plaint in the lower court dated 30/10/2022; d. any other order that the court deems just and fair in the interests of justice. The appeal was canvassed by way of written submissions. Appellants’ Submissions 5. The appellants submitted that the learned trial magistrate erred in law and fact by failing to properly evaluate the evidence on record and by dismissing a claim that was, in their view, supported by both documentary and oral evidence. They argued that the decision effectively divested group members of control and benefit of their group affairs, contrary to settled principles governing unincorporated associations and fiduciary relationships. 6. They relied on Mirara & 2 Others v Romano K. Mikigu [2013] eKLR and Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank to submit that both parties were properly before the court and amenable to legal accountability. They further invoked equitable maxims that the law should not allow a wrong to exist without a remedy. 7. The appellants contended that the Bartum Adjudication Section Group had operated as a group ranch under the Land (Group Representatives) Act (repealed) and later under the Community Land Act, 2016, and that its affairs, including funds received from Safaricom PLC and Celtel, were subject to statutory and constitutional standards of accountability. They submitted that funds were paid into KCB and Access Bank accounts in the group’s name, but no accounts or audited financial statements had ever been rendered to members. 8. It was their case that the respondents, as oficials of the group, admitted that meetings were irregular, no audited accounts were prepared, and no rules, by-laws or governance framework existed. The appellants argued that these admissions demonstrated breach of fiduciary duty and statutory obligations, and that the burden of proof had shifted to the respondents to account for the funds. 9. They further relied on the Community Land Act, the Community Land Regulations, 2017, Article 10 of the Constitution, and the Fair Administrative Action Act to argue that transparency, participation and accountability were mandatory. They faulted the trial court for allegedly failing to address these issues and for declining to order accounts, which they submitted were necessary to ascertain the true position of the group’s finances. They urged this Court to allow the appeal, set aside the trial court’s judgment, and grant the reliefs sought in the plaint. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4194/eng@2026-03-12 3

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Respondents’ Submissions 10. The respondents submitted that the appeal raised no error of law or principle and was a disguised attempt to re-litigate factual issues already determined by the trial court. They argued that the learned magistrate properly evaluated the evidence and exercised judicial discretion within the law. 11. They emphasized that a first appellate court should exercise restraint when invited to interfere with findings of fact, citing Muthoka v Ochieng, Onyango, Kibet & Ohaga Advocates [2023] eKLR and Raila Amolo Odinga & Another v IEBC & 2 Others [2017] eKLR. They contended that the appellants had failed to demonstrate any misdirection, perversity, or misapprehension of evidence. 12. On the burden and standard of proof, the respondents relied on Sections 107–109 of the Evidence Act and submitted that allegations of misappropriation and breach of fiduciary duty required cogent evidence. They argued that the appellants produced no bank statements, audit reports, or financial evidence to support their claims, and that the existence of funds alone did not amount to proof of misuse. They cited Capital Fish Kenya Ltd v Kenya Power & Lighting Co. Ltd [2016] eKLR in support. 13. The respondents further submitted that the orders sought for accounts and audits were discretionary and could not issue in the absence of an evidential foundation, warning against fishing expeditions. They argued that the trial court properly exercised its discretion in declining such reliefs, in line with Mbogo v Shah [1968] EA 93 and Kidada & Another v Mutua [2022] KECA 639 (KLR). 14. On costs, they submitted that costs follow the event and urged this Court to dismiss this appeal with costs.Bottom of Form Analysis and Determination 15. This being the first appellate court, this Court is under a duty to re-evaluate, reassess and re-analyze the evidence tendered before the trial court and arrive at its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses testify. This principle was settled in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 and reiterated in Kiruga v Kiruga & Another [1988] KLR 348. 16. However, this duty does not entitle the appellate court to substitute its own findings merely because it might have reached a different conclusion. Interference with findings of fact is only justified where the trial court misdirected itself, acted on no evidence, or arrived at conclusions that were plainly wrong. 17. On whether the Appellants Proved their Case, the Appellants argued before the trial court that the respondents, as oficials of the Bartum Adjudication Section Group, mismanaged group affairs, failed to render accounts, and breached fiduciary duties owed to members. 18. Upon re-evaluation of the record, record show that PW1, George Cheburet Barbo, who testified on behalf of the appellants, candidly acknowledged the following matters: a. That there were no established rules, by-laws or written framework governing the management or utilization of the group funds; b. That no consensus had been reached by the committee on subdivision of land or utilization of funds; c. That the grievance was primarily lack of information and accountability, rather than proof of theft or loss; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4194/eng@2026-03-12 4

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d. That he could not demonstrate that any respondent personally benefited or misappropriated the funds. 19. Notably, while PW1 testified that funds existed in KCB and Access Bank accounts, no bank statements, audit reports, or forensic financial evidence were produced to demonstrate misuse, withdrawal, or dissipation of the funds. The existence of money in a bank account, without more, cannot amount to proof of misappropriation or breach. 20. The appellants’ own evidence therefore revealed an administrative and governance dispute within an unincorporated group, rather than a proven civil wrong capable of attracting coercive judicial remedies. 21. In respect to burden and Standard of Proof, the burden of proof lay with the appellants under Sections 107–109 of the Evidence Act. Allegations of misappropriation and breach of fiduciary duty, though civil in nature, require cogent and credible evidence, not conjecture or suspicion. 22. The trial court correctly held that the appellants failed to discharge this burden. The respondents’ admission that meetings were irregular or that accounts were unaudited did not, without evidence of loss or misuse, shift the burden to them to justify every administrative lapse. 23. I agree with the trial court that granting orders for accounts in the absence of an evidential foundation would amount to a fishing expedition, which courts must guard against. 24. On whether the Trial Court Misapprehended the Law, the appellants placed heavy reliance on the Community Land Act, the Fair Administrative Action Act, and constitutional principles of transparency and accountability. While these principles are undoubtedly important, they do not dispense with the obligation to prove pleaded facts. 25. The trial magistrate did not hold that the group was outside the purview of the law, but rather that the appellants had failed to demonstrate, through evidence, that the respondents’ conduct rose to the level warranting judicial intervention. From the foregoing, I find no misdirection in that approach. 26. On whether the Appellate should Interfere with Discretion, the reliefs sought before the trial court were discretionary in nature. The principles governing interference with judicial discretion were settled in Mbogo v Shah [1968] EA 93. 27. Having perused and considered the trial court judgment, I am not persuaded that the learned magistrate acted on wrong principles, ignored relevant considerations, or reached a plainly wrong decision. From the foregoing, I find that this appeal lacks merit. 28. Final Orders:a. The appeal is dismissed in its entirety. b. The judgment of the Senior Principal Magistrate’s Court in Civil Case No. E046 of 2022 delivered on 22nd January 2025 is upheld. c. Costs of the appeal shall be borne by the Appellants. DATED AND SIGNED AT NAIROBI THIS 12TH DAY OF MARCH 2026. R. NGETICH JUDGE DATED, COUNTERSIGNED AND DELIVERED AT ELDORET THIS 12TH DAY OF MARCH 2026. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4194/eng@2026-03-12 5

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J. R. WANANDA JUDGE In the presence of: Court Assistant – Brian Kimati Ms Mokoit for Respondents. No appearance for Appellants. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4194/eng@2026-03-12 6

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