Anthony Gikunju Muchemi v Elijidia Wanjiru Waithaka & 8 others

valued at Ksh.695,000. He further expended special damages of Ksh.17,240 being the cost of fertilizers and pesticides used before the crops were damaged, and although the destroyed coffee bushes were planted by his father, Muchemi Migwi (now deceased), and passed down to him, the Respondents erected a barbed wire fence, thereby curtailing his access thereto. 2. The Respondents denied the claim vide their amended defence and counterclaim dated 4/8/2022 and prayed for the Appellant’s suit to be dismissed with costs. 3. Upon full hearing, the trial court dismissed the Appellant’s case with costs. The appeal 4. On appeal, the Appellant by his memorandum of appeal dated 17/7/2024 set out 5 grounds as follows: 1. The Learned Trial Magistrate erred in law and fact by failing appreciate the proper effect and purport of the evidence and in arriving at a decision which is against the weight of the evidence. 2. The Learned Trial Magistrate erred in fact when she held that the Respondents were not linked to the destruction. 3. The Learned Trial Magistrate erred in fact and in law by failing to appreciate the evidence tendered by the Appellant. 4. The Learned Trial Magistrate misdirected herself in failing to make a finding against the Defendants. 5. The Learned Trial Magistrate erred in law and in fact by finding the Plaintiff’s case unmeritorious and dismissing the same with costs. Duty of the Court 5. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123). Oral Evidence 6. PW1 Anthony Gikunju Muchemi testified that, “I live in Kiamaina. In Land Parcel 1925. Am a farmer. I wrote a statement dated 8th March 2023. I would like to admit the court to admit the evidence as my statement. The documents as listed in my list dated 8th March 2023 should be adopted as my evidence.” 7. On cross examination, he stated that, “The land belongs to my father. My father is deceased. I was born there and raised there was no reason for me to have the letters. I stay there as his child. I was given coffee. I was shown where to farm and that is where I have been cultivating. I have not seen the defendants’ letters of administration. I have not seen their documents. I understand succession but we have not gone for succession. What I say was destroyed was coffee planted by my father. My father gave me permission to stand for him. He did not give me in secret I have been using it for 44 years. The land is registered in the name of Geoffrey Migwi. He is my brother but he is not Geoffrey is standing for me. I asking for my right because we are children of Mucemi. I have a case with Geoffrey, I do have a court order to show I have a share in the land. No one has. We have been there as our father had left us. I live in 1925 with Geoffrey Migwi, Mwangi Mucemi, Anthony Mucemi and Njeri Mucemi. We said that everyone should cultivate where our father left us. I only have pictures of where the destruction https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4491/eng@2026-02-26 2

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occurred. We have never distributed, we are still as we were when our father left us. We live together. My father was Mucemi Migwi. It is not true that I am not the biological son of the deceased. I am called Muchemi and in my ID it is indicated Muchemi and he is the one who educated me. My father had 2 wives. The land is not divided. I have coffee. I have documents from the bank to show I have land. We have never had issues before. I have 3 books here. Document number 8, 9, and 10 show the crops are mine. The damage occurred on 16th at night. They came one night with pangas and cut. I heard Peter Karani there. There were many people but I heard Peter’s voice. They had torches and pangas it was at night, I could not get close to them. I did not get close to them. I heard Peter’s voice. There were many people. I heard the noise and got confused. I could not identify voices. I could not pass there. I heard their voices, I could not different one person’s voice. We are neighbours. They woke up to surround after cutting the coffee. The incident occurred on 16th November. In my plaint, I am saying the incident occurred on 16th to 23rd November. There is a report by the agricultural officer. I understand the report by the agricultural officer. But the agricultural officer will do the computation. I do not understand the report. I reported to the police and they went with the agricultural officer and wrote their report. The property is mine and they cut my coffee. The land is also mine. The police came and went. No one was charged with an offence. The section that was damaged was planted on a portion of land measuring close to 1 acre. The cultivation was completely destroyed, there is nothing there. I utilize 1 ½ acres from the parcel of land. The ½ acre has nothing planted. My tea is there on the remainder. I have documents to show I have fertilize. 1717 is not for fertilizer. My advocate will know because I left her documents. (referred to page 32 of the defendant's bundle of documents) The 1X is my home, and 2 X belong to Mwangi Mucemi. 3X belong to Jane Njeri, the houses are in the subject land (Page 34) 2X is Mwangi Muchemi’s land he is bordering Geoffrey. My brother Mwangi Migwi is close to where my cultivation was damaged. Mwangi Muchemi is not my witness today. (Page 34) those are Mwangi’s houses mine are up there. Near the trees close to the road is where my sister's house is her house cannot be seen. Jane is not my witness in this case. Where there is a clearing, that is where my crops were when they were destroyed. It is not just that section that can be seen, It is big. There is no boundary near the toilet. We put the boundary there so that we can know how to distribute the land. The boundary which is informal, where it has been cut is Geoffrey’s property, we did not subdivide it. They cut and burnt it for charcoal. The coffee and macadamia. I did not have pictures for before because I did not know there would be destruction. (Referred to Page 35) He is the one who did that work and I have been born there. Where the house was built is where the destruction happened but that is a construction they have put there. They are going on with building despite being ordered to stop by the court.” 8. In re-examination, he stated that, “The land is registered in the name of Geoffrey Migwi. He became the registered owner because he is Muchemi’s son he died on 11th August 1999, the court determined the matter in suit 4. Geoffrey was written after our father died on 11th August 1987 when the matter was before the Nyeri court, Muchemi our father had been sued by Kinyua Karungu our cousin because he wanted half of the land. We decided to have Geoffrey wrote himself because all 3 of us could not be written. Geoffrey Migwi is registered on our behalf. It is written in the name of Gikunju, Mwangi, Geoffrey Muchemi. The crops that were destroyed were together. I did not see who cut the land. I heard people talking as they were being destroyed. There were many people making noise. I did not hear the voices of those sued. The crops were destroyed between 16th November and 23rd November. On 16th is when the crops were destroyed by people who were shouting at night. (referred to page 32) 1X is mine, 2X is Mwangi’s. Geoffrey had not built a house here. He came and destroyed instead of coming to say why he was destroying. I had not taken photos before the destruction. I did not know something would happen. Geoffrey came one day and divided yet we had not agreed on how to distribute. There is no demarcation in the photo. (Page 35) This is where they are constructing, they built after cutting down my crops. Other than the agricultural officer’s report, I have brought photos.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4491/eng@2026-02-26 3

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9. PW2 Anthony Kabuitu Rang’ata testified that, “I live in Mutira Kaguyu sub location. I am a farmer. I wrote a statement on 8th March 2023. I would like the court to take it as my evidence in this matter.” 10. On cross examination, he stated that, “I am the Sub Area. I cannot know the land parcel. I know that the land is occupied by Muchemi’s family but I do not know the registered owner. I do not know how many acres it is. I used to know Muchemi, He had 2 wives but I do not know how many children he had. His wives were two. Gikunju Muchemi, Njeri Muchemi belonged to the 1st wife. I do not know the names of the wives, I cannot remember the wives names. I was born in 1941. They live close to my land. I do not know how many acres Anthony uses. On the entire land, I cannot know how many use it as I do not know where others are. When I get into the land, I saw a boundary. It is only a fence. I cannot ask who asks on either sides. I do not know who cultivates there. The property destroyed was Gikunju Muchemi’s. I saw it. The destroyed portion was Anthony’s, I do not know who cultivates the lower side. The tea leaves are on the lower side, they belong to Gikunju Muchemi. The house by is Gikunju Muchemi’s land. (page 32) 1X is Gikunju’s, I do not know the owner of 2X, I also do not know who owns 3X, I have seen the toilets near 2X. (Page 33) I do not know who owns 2X. There is a cleared portion near the road, that is where I saw the destruction. Gikunju’s house is on the left side. The photos cannot determine clearly who owns what property. I talked to those who wanted to talk because those who wanted to talk came. The destroyed crop was just a tree, one tree, coffee had also been cut down. I did not know what tree was cut. Bananas were also cut and tea leaves. They had been cut into pieces. I did not count the number of bananas and tea bushes cut. My work was not to count. I just went and saw, I did not see other crops being cut. The destroyed property was on quarter of an acre. I did not find anyone destroying the property. I heard, Anthony did not call me. I heard that there was a problem. I heard from people. (referred to his statement) I am not lying. The plaintiff came to me. I had forgotten. I did not ask him who had destroyed his property. He did not tell me if he had witnessed the incident. I cannot remember the names he told me regarding who destroyed. I cannot see the writings. I went to see what had happened. I was told who destroyed the land. I cannot recall their names. Anthony Gikunju was not on the land when I went there. Before that I used to see his boundaries. His shamba is about 3 acres in my estimate. I do not Eljidiah Wanjiru. I know Njeri Migwi she is Gikunju’s sister. I do not know if she is in the shamba. Moses Muchemi is Gikunju’s son. I do not know Stephen Waithaka, Brian Mwaniki, Peter Karani, Nicholus Kiragu, I do not know them. Geofirey Migwi I know him. I used to think it is Kathenge, he is for the other wife. The police did not ask me questions.” 11. In re-examination, he stated that, “I do not some of the people who reside in my vicinity. It is not normal to know everyone. There is a person on each end of the fence. Gikunju is on his side. The crops destroyed were destroyed on Gikunju’s side. There were bananas, Potatoes and greens. It was a mixture of kales. When I look at the photos. There are bananas. There is tea, tea was not cut. About ½ an acre was destroyed. The people who told me told me as I was walking about, Anthony told me about the incident on a day I cannot recall.” 12. PW3 Pauline Muthoni Kabonoki testified that, “I wrote this statement. It is dated 8th March 2023, it is mine. I would like the statement to be taken as my evidence.” 13. On cross examination, she stated that, “My home is not far from Gikunju’s home. I do not know the registered owner. I do not know how big it is. I knew the father of Anthony Gikunju. He had 2 wives. I only know Mama Gikunju. I did not find the other wife. She had 2 sons but I do not know how many they were in total. I know Anthony belongs to Muchemi. I used to come from Kiamaina to Kagumo as the home is near the road. Before that day, I had visited the home. The shamba was not subdivided when I visited. The land was being used by Gikunju and his brothers. I know Gikunju well. They are a lady and 2 gentlemen. I do not know her she does not live here. I do not know Elijidiah Wanjiru https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4491/eng@2026-02-26 4

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Waithaka, Emilly Njeri, Moses Mucemi, Stephen Waithaka, Brain Mwaniki, Peter Karani, Nicholus Kiragu. I know Geoffrey Migwi because he would come home. Anthony and Geoffrey because they are of the same father. They are brothers. I saw Geoffrey come home. I do not know Samuel Maina Muriithi. I do not know Anthony Kabuitu Rang’ata. On 19th November 2022, I was going to Kiamaina when I witnessed something I reached their home and found it being fenced. I only knew Migwi Muriithi the rest I did not know. Migwi Muriithi is the brother of Anthony Gikunju, he can call Gikunju uncle. Geoffrey Muriithi is the child of sister of Geoffrey, she was called Wambui. Geoffrey Migwi is the one I have said I would see at home. I saw the fence being erected but I did not find the destruction. The wife of Gikunju asked me to come and see the destruction on the day the fence was being constructed. The wife of Gikunju is called Wambui, She is called Jane Wambui Gikunju. I saw coffee, greens, bananas, Napier grass and a tree that had been cut down. It was an avocado tree. The coffee was about 100 stems. I could not the bananas. About 1 acre had been planted on. The fence they were putting up was the big mesh wire. (referred to paragraph 5 of Kabuitu’s statement) The mesh wire and barbed wire was being put up. (Referred to page 34) The photos refer to the subject property. The cleared portion, that is where the barbed wire was being erected. The house there belongs to Geoffrey Migwi. Where the fence was being erected is near Geoffrey’s house. Anthony’s house is not being seen but is below here. From here it is not far it is on the same farm. One belongs to brother of Gikunju. I was called to record statements at the station.” 14. In re-examination, she stated that, “Although another witness says there was a fence, I got in through Gikunju where he has built. There was a barbed wire on that other side. In the middle his sister and brother have built. What I have recorded is what I saw.” 15. PW4 Anthony Mithamo Muriu testified that, “I live in Mutira ward. I work with the ministry of agriculture as the ward agricultural officer personal number 2010112338. My role in relation to the matter was to assess the damage to the crops. I knew as I was called on 22nd by my boss, I was given a letter dated 17th November 2022 written by the OCS Kagumo police station the letter was addressed to the agricultural department and the reference was OB. OB 08/17/11/2022. Malicious damage case by Anthony Gikunju Muchemi. I have the original letter here. The letter’s consent was for assessment of damage to a farm. When I received the letter I went to Kagumo Police Station, I visited the farm of Anthony Gikunju Muchemi I was accompanied by the police officers. I prepared a report, this is the report. The report is dated 24th November 2022. I took photographs and I attached them to the report.” 16. On cross examination, he stated that, “I am a horticulturist by profession. I am a diploma holder in Horticulture. I have not attached my qualifications to the report. I have training in doing valuation. I am not a gazetted valuer. I have not indicated the date I visited the land. I have not indicated that anyone accompanied me when I went to the land. That can be confirmed. I have not indicated the land that I visited. This is a farmer in my ward. I do not know if he is the registered owner of the land. Where the damage was allegedly done, the approximate size was ¾ of an acre. 100 mature coffee bushes were destroyed. Farmers deliver coffee to a society with documentation. He had the selling slip from the Factory. It is not attached to my report. A selling slip does not indicate the land title number. He had selling slip or the delivery slip, I was also on the ground. A picture cannot capture 100 trees that have been uprooted. The photo is just an evidence that the crops that were damaged were damaged. The photos cannot account the damage. The coffee bushes were uprooted which is different from cutting. The 200 cabbage were uprooted and cut. The agricultural guidelines are there. The guidelines in the Ministry is outdated it has not been reviewed for so long. I am not sure of the year. The guideline is not there so we use the market value. The basis of this report is based on the market, value as currently sold. They can agree on the guideline. I ascertained the value of coffee by counting the plants which were 100, it would take 7 years to bring it to maturity. For the farm to come back the farmer would need 7 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4491/eng@2026-02-26 5

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years for it to mature. The average production per tree was 7 ½ kg per stem and Kagumo Factory where he takes his coffee pays 105 per kilo. It is known that coffee takes 7 years to mature. There is no evidence to support that. I have not attached anything to show his production was 7.5 kgs. These are documents that can be availed, it is not in my report. Some farmers can produce better yield than others. 7.5 is from the previous harvested crop. I also assessed the management process which was good. The value of the coffee bush depends on the farmer. It is not true that coffee is selling for 20 shillings per kg. This year we have not paid any coffee farmer. We are in the peak season. The money was paid in April. The next payment is in April. I know there is a crisis in the coffee sector. What is there is selling of early crop which does not determine. The valuation cannot change as it was not done this year. I am counting years to come. The valuation is at the time of damage not in future. We have a definite value for an avocado tree. I used what the avocado farmer would have gotten. 1 tree was cut. The number of fruits to be produced, the time it would take for him to replace the lost avocado and price per kilo. I have not attached anything to show the productivity or value. What I am computing is the estimated price, the number of years it would take to mature and yield. The gazetted values have not been reviewed so I did not use the gazetted values. The court cannot find a document to support my report.” 17. In re-examination, he stated that, “I have been visiting this farmer as a farmer of Mutira Ward and he has been tending to that farm. He is one of my clients in the ward. He has a selling slip, I confirmed it with the factory, Kagumo Coffee Factory, you cannot see 100 coffee stems lying there. In photo 2 there are coffee bushes and in the background there are 2 uniformed officers. It refiects what was damaged. My report is a normal procedure in my line of work as the guidelines have not been used, if we use them it will be at a loss for the farmer. I am certain on the time it takes for coffee to mature. It takes 7 years.” 18. DW1 Peter Karani King’au testified that, “I live in Gatwe. I am a farmer but I do casual work. I was sued in this case together with 8 others. We came to court and wrote statements. It is dated 4th September 2023. I want it to be my evidence in court. I also brought documents dated 4th September 2023. I wish to adopt them same. (Referred to P Exh. 8) 1 X is Anthony Gikunju’s house. He is the one who to has brought us to court. That is his shamba on the right side. 2X is his brother’s house, Mwangi Muchemi, we are neighbours. He is in this case. Mwangi Muchemi’s house is on the boundary, 3X is the house of Jane Njeri Muchemi. Our grandfather had 2 wives, they have built on one side and our Cucu’s side is on the other end. The trees there are the boundary. (Referred to the top part of the document) That is a boundary for right side is Anthony Gkikunju, his brother Mwangi Muchemi and x3 is Jane Njeri their sister. They have built on the right and they cultivate on the lower side. The other side is Geoffrey Muchemi and that is where we have constructed our house. That is the house on page 35. (Referred to P Ex. 8 page 35) There was nothing but tea bushes there. Geoffrey Migwi Muriithi had planted Napier grass there. He is the 8th defendant. (referred to page 33) 2X is Mwangi Muchemi’s house, he was not complaining that his things had been destroyed. (Referred to page 34) it has boundary trees there to surround the house of Geoffrey Migwi Muchemi. I was there when Anthony testified. Regarding those receipts, Anthony has planted coffee in our grandfather’s land Mwerua/Gitabu 104. He also plants maize and beans there. He has brought receipts which he lied saying that he was buying fertilizer for 1925 but the fertilizer was for Mwerua/Gitabu 104. He was not cultivating there, everyone has their portion. I have never been charged after the matter was reported. We have never seen the police. We were not there when those plants were uprooted. Were Mary Njoki died in America. She was the one using the land before. I can say that Anthony Gikunju is lying. He wanted the land to be divided 3 times but our uncle said that the 8 people divide the land equally.” 19. On cross examination, he stated that, “There is a search which shows the land belongs to Geoffrey Muchemi. I am saying that the land is for all children of Muchiri Migwi. And that all children of Muchiri, I have listed on the last paragraph the children. They should get the land there. Process for subdividing had not been done. Right now, the people living on the land is Geoffrey Migwi Muchemi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4491/eng@2026-02-26 6

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(deceased) Brian Muchemi who is. Geoffrey’s child, Waithaka Muchemi the child of Geoffrey, Moses Muchemi, the child of Geoffrey, Geoffrey Migwi Murimi the child of Alice Wambui, Anthony Gikunju, Mwangi Muchemi and Jane Njeri Muchemi, Ejidia Wanjiru Waithaka wife of Geoffrey Migiwi. Geoffrey Migwi passed away in October 2022, Those I have mentioned all lived there before his death. They all cultivate the land. Geoffrey had tea, bananas, arrowroots. His children take care of the land. All of them together. Anthony Gikunju has his portion. He has tea, he has teas and arrow roots on the lower side. Including Napier grass. Mwangi Muchemi has a few coffee bushes. He has bananas as well. He has also planted trees. That is all he has planted, Jane Njeri is staying in her mother’s land. She is cultivating vegetables in the land. Everyone has a portion they are cultivating. In 1990, he showed everyone their portion. There is just one boundary separating the two houses, Joyce, mother of Anthony Gikunju and Mary Muthoni. Since 1990, there has been no dispute since uncle died. (referred to page 35) That house is Geoffrey’s house, it was built after he passed away. There was no plants that were uprooted to build the house. (referred to his statement at page 10, paragraph 5 from the bottom) I am saying that Geoffrey Migwi’s plants are what were cut. I have said that Napier grass was cut. There was no plant that were cut. This is my statement. I did not say that after the land was cleared is when the plaintiff went to report. I do not live there. I was not there when the plants are said to have been cut. I did not see anything being cut. What was there was nappier grass. We buried him near that house. I was not there when the land was being cleared. There was Napier grass, bushes and weeds. No coffee, avocado, bananas maize was cleared. Avocados are on the fence. Anthony is far. Bananas are far, they were not there now. What is in the report was not there. The complainant lied to the court. There was no plant that was cut down belonging to the complainant. What was there was Napier grass planted by Geoffrey Migwi.” 20. In re-examination, he stated that, “The land has been subdivided two times. Anthony does not live on that side.” Submissions 21. The Appellant urges that he established that there was willful and unlawful destruction of his crops by the Respondents, and cites Director of Public Prosecution v Margaret Shipai (2019) eKLR, Kenyatta Obegi & Another v Sebastiano Oino Mogusu [2021] KEHC 9608 (KLR) and Mumbi N’Nabea v David M. Wachira (2016) eKLR. 22. The Respondents cite Selle v Associated Motor Boat Co. (1968) EA 123, on the duty of the appellate court and Sciommeri v Tasmac Limited & 4 others (Civil Suit E006 of 2023) and Anne Wambui Ndiritu v Joseph Kiprono Ropkoi &Another [2005] I EA 334, on the burden of proof in civil cases. They fault the Appellant for failing to put forward cogent evidence linking them to the wrongful act, and cite Synergy Industrial Credit Ltd v Oxyplus International Limited & 2 others [2021] KEHC 13344 (KLR). Analysis and determination 23. From the grounds of appeal as framed, the singular issue for determination is whether the trial court’s judgment was against the weight of the evidence tendered. 24. The age-old principle of law is that he who alleges must prove. 25. I respectfully agree with the Court (A. Mshila J.) in Mbure v Kimani [2023] KEHC 22773 (KLR), setting out the key ingredients for the offence of malicious damage to property to include (i) Ownership of the property by the complainant; (ii). Damage or destruction of property; and (iii). Linkage of the damage to the accused person. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4491/eng@2026-02-26 7

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26. The Appellant testified that, “The land belongs to my father. I was given coffee. I was shown where to farm and that is where I have been cultivating. I understand succession but we have not gone for succession. What I say was destroyed was coffee planted by my father. The land is registered in the name of Geoffrey Migwi. He is my brother but he is not Geoffrey is standing for me. I only have pictures of where the destruction occurred. We have never distributed, we are still as we were when our father left us. The damage occurred on 16th at night. They came one night with pangas and cut. I heard Peter Karani there. There were many people but I heard Peter’s voice. They had torches and pangas it was at night, I could not get close to them. I did not get close to them. heard the noise and got confused. I could not identify voices. I could not pass there. The section that was damaged was planted on a portion of land measuring close to 1 acre. The cultivation was completely destroyed. My brother Mwangi Migwi is close to where my cultivation was damaged. Mwangi Muchemi is not my witness today. Near the trees close to the road is where my sister’s house is her house cannot be seen. Jane is not my witness in this case.” In re-examination, he stated that, “The land is registered in the name of Geoffrey Migwi. He became the registered owner because he is Muchemi’s son he died on 11th August 1999. I did not see who cut the land. I heard people talking as they were being destroyed. There were many people making noise. On 16th is when the crops were destroyed by people who were shouting at night.” 27. PW2 testified that, “When I get into the land, I saw a boundary. It is only a fence. I cannot ask who asks on either sides. I do not know who cultivates there. The destroyed crop was just a tree, one tree, coffee had also been cut down. Bananas were also cut and tea leaves. I did not find anyone destroying the property.” 28. The evidence led by PW4 raised more questions than it resolved, as he not only failed to specify the date on which he allegedly visited the locus in quo, but also omitted to indicate the relevant parcel number in his report. Furthermore, he candidly acknowledged that he was not a registered valuer, which significantly diminished the probative value of his evidence. He testified that, “I am not a gazetted valuer. I have not indicated the date I visited the land. I have not indicated that anyone accompanied me when I went to the land. I have not indicated the land that I visited.” 29. DW1, the 6th Respondent herein testified that, “Geoffrey Migwi Muriithi had planted Napier grass there. He is the 8th defendant. Anthony has planted coffee in our grandfather’s land Mwerua/Gitabu 104. He also plants maize and beans there. He has brought receipts which he lied saying that he was buying fertilizer for 1925 but the fertilizer was for Mwerua/Gitabu 104. He was not cultivating there, everyone has their portion. We were not there when those plants were uprooted.” On cross examination, he stated that, “I am saying that Geoffrey Migwi’s plants are what were cut. I do not live there. I was not there when the plants are said to have been cut.” 30. In view of the Appellant’s own admission that he did not witness the alleged destruction of the crops, coupled with his failure to call material witnesses to wit his sister and brother Jane and Mwangi Muchemi, respectively, who resided in close proximity to the suit property, to verify whether he indeed cultivated thereon, the evidentially burden resting upon him remained wholly undischarged. 31. In the premises, this court finds that the trial court was justified in concluding that the case had not been proved on a balance of probabilities, and the consequential order of dismissal was warranted. ORDERS 32. Accordingly, for the reasons set out above, the Court finds that the Appellant’s appeal is without merit and it is dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4491/eng@2026-02-26 8

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33. Each party shall bear its own costs of the appeal. Order accordingly. DATED AND DELIVERED THIS 26TH DAY OF FEBRUARY 2026. EDWARD M. MURIITHI JUDGE Appearances: Ms. Wandia for the Appellant. Mr. Kathigiu for Mr. Magee for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4491/eng@2026-02-26 9

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