https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3637

Anyonje v Kubati (Environment and Land Appeal E019 of 2025) [2026] KEELC 3637 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEELC 3637 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Appeal E019 of 2025 A Nyukuri, J June 3, 2026 Between Alexander Ambayo Anyonje Appellant and Samuel Mahara Kubati Respondent (Being an appeal against the judgment of Hon. E. Wasike, (PM) delivered on 20th February 2025 in Butere MCLE No. E035 of 2022) Judgment Introduction 1.This appeal is in regard to the judgment of Hon. E. Wasike (PM) delivered on 20th February 2025 in Butere ELC Case No. E035 of 2022. In the impugned judgment, the trial court held that the plaintiff (respondent herein), had proved his case on a balance of probabilities and was the lawful registered proprietor of Land Parcel No. Kisa/Wambulishe/1578 (suit land). The court found that the appellant’s allegations of fraud had not been specifically proved and that any complaint touching on the succession process through which the respondent acquired title ought properly to have been pursued in the succession court. The trial court further held that the appellant had failed to establish the existence of any trust over the suit land in his favor and his family and consequently dismissed the defence and counterclaim in their entirety. The plaintiff’s suit was accordingly upheld with no orders as to costs. Background 2.The suit before the trial court was commenced by the plaintiff, Samuel Mahara Kubati, by way of a plaint dated 30th August 2021, in which he pleaded that he was the absolute registered proprietor of Land Parcel No. Kisa/Wambulishe/1578, having acquired title thereto on 10th February 2020. He stated that the defendant had, from about January 2022, unlawfully entered upon and commenced developing a portion of the suit land without his consent, including putting up a house thereon, thereby interfering with his quiet possession and enjoyment of the property. He further pleaded that despite intervention by the local administration and demand through counsel, the defendant had refused to vacate the land or cease his acts of trespass, thus necessitating the institution of the suit. 3.In the plaint, the plaintiff further pleaded that the defendant’s continued occupation and development of the suit property amounted to illegality, bad faith, malice, and forcible detainer, and that unless restrained by the court, the appellant would continue to harass, intimidate, and interfere with his peaceful use and possession of the land. That he had suffered loss and damage through exclusion from the use of his land and dispossession of property lawfully belonging to him. Accordingly, he prayed for an order of eviction against the appellant from Land Parcel No. Kisa/Wambulishe/1578; a permanent injunction restraining any further dealings or interference with the suit land; costs of the suit, and such other relief as the court might deem just. 4.In response to the plaint, the defendant filed a statement of defence and counterclaim dated 1st April 2023 in which he denied the plaintiff’s claim and asserted that although the suit land was registered in the plaintiff’s name, such registration had been obtained fraudulently and illegally. He averred that he and his family had been in physical possession of the suit land since the 1970s, when it was previously known as Kisa/Wambulishe/1116 and later Kisa/ Wambulishe/1483, and that at the time it stood in the name of his late grandfather, Henry Kubati Mahare. He further maintained that he and his family, including his mother, had resided on and extensively developed the land since childhood, while the plaintiff occupied the neighboring parcel known as Kisa/Wambulishe/1577. The defendant denied that he was a trespasser and contended instead that it was the plaintiff who was seeking to use the court process to unlawfully evict him and his family from what he described as their ancestral land. He also denied the allegations of illegality, bad faith and forcible detainer, and averred that the suit land was occupied not only by him but also by his mother and other family members. 5.In the counterclaim, the defendant pleaded that he was a grandson of the late Henry Kubati Mahare, whom he described as the original registered proprietor of the parent parcel, Kisa/Wambulishe/1493, from which parcels Kisa/Wambulishe/1577 and 1578 were later derived. That upon subdivision, the deceased physically apportioned the parcels among his sons, with the plaintiff’s father being settled on parcel No. Kisa/Wambulishe/1577 and the defendant’s late father, Alexander Ambayo, being settled on the suit land, namely parcel No. Kisa/Wambulishe/1578, although title remained in the grandfather’s name until his death. He accused the plaintiff of secretly instituting succession proceedings and procuring registration of the suit land in his own name so as to defeat the interests of the defendant and his family, and set out particulars of fraud, illegality and corrupt scheme in that regard. He further pleaded that the plaintiff already had land comprised in parcel No. Kisa/Wambulishe/1577, which had since been subdivided into parcels Nos. 2003, 2004 and 2005. On that basis, the defendant prayed, in the counterclaim, for dismissal of the plaintiff’s suit, cancellation of the plaintiff’s title to parcel No. Kisa/Wambulishe/1578 and reversion of the same to the original owner, a permanent injunction restraining the plaintiff from interfering with the defendant’s peaceful occupation, possession and use of the land, and costs of the counterclaim. 6.The plaintiff thereafter filed a reply to the defence and counterclaim dated 17th April 2023 in which he maintained that the allegations of fraud set out in the defence and counterclaim were devoid of foundation. He further contended that the defendant was a stranger to his late father’s estate and had no lawful claim thereto, and that no proof had been tendered in support of the pleaded fraud. 7.The plaintiff acknowledged that the parties were related through common ancestry, and stated that the suit land, namely Kisa/Wambulishe/1578, had devolved to him from his late father, Henry Kubati, through succession after subdivision of the original parcel Kisa/Wambulishe/1493. That the defendant had only begun developing a portion of the suit land in early 2021 with his consent, having been allowed to put up a temporary structure for a limited period out of compassion after returning from Uganda. He therefore maintained that the defendant was not entitled to the reliefs sought in the counterclaim and prayed that the defence be struck out and judgment be entered as prayed in the plaint, together with damages for trespass and costs of the suit. 8.The suit proceeded to hearing through viva voce evidence. Both the plaintiff and defendant called two witnesses in support of their respective cases. Plaintiff’s evidence 9.PW1 was Samuel Mahara Kubati, the plaintiff. He adopted his witness statement dated 30th August 2022 as his evidence in chief and produced the documents in his list of documents of even date comprising of a copy of title deed for L.P No. Kisa/Wambulishe/1578, official search for the said parcel, a demand letter dated 1st March 2016, a letter from the chief; and the documents in the further list of documents dated 17th April 2023 comprising of the minutes of 27th July 2022. 10.He testified that he was the registered proprietor of Land Parcel No. Kisa/Wambulishe/1578, measuring approximately 5 acres, having acquired title thereto on 10th February 2020 upon succession from his late father, Henry Kubati. He testified that the defendant had trespassed onto the suit land and occupied about 1½ acres thereof. That he had, out of compassion, permitted the defendant to reside there temporarily for about one year after he returned from Uganda. He stated that despite that indulgence, the defendant failed and/or refused to vacate upon demand. He further testified that the defendant’s mother, Agneta Anyonje, also resided on the suit land and that his efforts through the local administration to have the defendant leave the land were unsuccessful, thereby necessitating the filing of the suit. 11.On cross-examination, PW1 stated that the suit land, namely parcel No. Kisa/Wambulishe/1578, was the only parcel of land he occupied and that he had lived there since birth. He denied having sold any portion of the land to the defendant and stated that the arrangement allowing the defendant temporary occupation had not been reduced into writing. He further stated that the succession cause he referred to concerned his late father’s estate and maintained that parcel No. 1578 belonged to him. He reiterated that the defendant ought to vacate the suit land and relocate to his mother’s portion. 12.PW2 was Aggrey Saya Kubati. He adopted his witness statement dated 17th April 2023 as his evidence in chief. He testified that the parties herein traced their ancestry to a common great-grandfather known as Mahare. That the plaintiff was a son of Henry Kubati Mahare whereas the defendant descended from Timothy Anyonje, whose father was Alexander Ambayo. He further testified that Land Parcel No. Kisa/Wambulishe/1578 belonged to the plaintiff, having devolved to him from Henry Kubati through succession, and that the defendant only began developing a portion of the plaintiff’s land in early 2021 with the plaintiff’s consent. He stated that the plaintiff had merely allowed the defendant to put up a temporary structure for one year because the defendant had returned from Uganda and his father’s land in Mukhula had been leased out. 13.On cross-examination, PW2 stated that he knew both the plaintiff and the defendant, the latter being his neighbor though not his relative. He testified that the original parcel No. Kisa/Wambulishe/1493 was subdivided to give rise to parcels Nos. 1577 and 1578. He further stated that parcel No. 1577 had been in the name of Henry Kubati and had thereafter been transmitted through succession and subdivided, while parcel No. 1578 was registered in the plaintiff’s name. He also testified that Agneta Anyonje had begun residing on parcel No. 1578 in or about the year 1999 and that the late Timothy Anyonje was buried thereon. That it was the plaintiff who undertook the succession proceedings in respect of his father’s land and reiterated that the parcel in dispute before the trial court was Land Parcel No. Kisa/Wambulishe/1578. That marked the close of the plaintiff’s case. Defence evidence 14.DW1 was Alexander Ambayo Anyonje, the defendant. He adopted his witness statement dated 9th June 2023 as his evidence in chief and produced the documents in his list of documents of even date as defence exhibits. In his testimony, he stated that the plaintiff did not reside on Land Parcel No. Kisa/Wambulishe/1578 but on Land Parcel No. Kisa/Wambulishe/1577, whereas he and his mother resided on the suit land. He testified that he had established his home on the suit land in the year 2013, where he lived with his wife and children, and that the land historically belonged to his family. His evidence was that the plaintiff already had his own parcel of land, namely Kisa/Wambulishe/1577, which had been subdivided into three portions, while the portion he occupied formed part of the land that belonged to his late father. That the plaintiff caused the suit land to be registered in his own name through succession proceedings without involving him and thereafter sought to evict him from the portion he occupied, while at the same time leaving his mother and brother on the same land. 15.On cross-examination, DW1 stated that the plaintiff was his paternal uncle. That Land Parcel No. Kisa/Wambulishe/1578 was registered in the plaintiff’s name and that he became aware of that fact in the year 2020. He further stated that he occupied and utilized about 1½ acres of the suit land, and that although he alleged that the plaintiff had acquired the land fraudulently through succession proceedings, he had not filed any surveyor’s report, transfer documents, or other documentary proof to establish the alleged fraud thereof. He also conceded that he had not lodged any claim based on adverse possession. 16.In re-examination, he maintained that he had moved out of his parents’ home in 2013 and established his homestead on the suit land, that he had not been informed of the succession proceedings, and that in his view the plaintiff held the land in trust for his family. 17.DW2 was Agneta Anyonje Anunda. She adopted her witness statement dated 9th June 2023 as her evidence in chief. She testified that she was the widow of the late Timothy Anyonje and the mother of the defendant. Her evidence was that she had resided on the portion now known as Land Parcel No. Kisa/Wambulishe/1578 since the time of her marriage, and that the defendant had established his matrimonial home on the same parcel in the year 2013, during the lifetime of his father. She stated that the plaintiff was a brother to her late husband and that the plaintiff had his own land, namely Land Parcel No. Kisa/Wambulishe/1577, which he occupied. That the plaintiff had never been in occupation of the suit land and further denied that the defendant moved onto the land in 2021 with the plaintiff’s consent. It was her testimony that she was shocked that the plaintiff conducted succession proceedings and caused the whole of the land to be transferred to himself without involving those who had long resided thereon, yet he knew that the portion occupied by her family belonged to her late husband. 18.During cross-examination, DW2 stated that Henry Kubati was the one who showed them where to reside, while Alexander had a separate parcel of land at Mukhula where he lived with his children. She testified that she started residing on the suit land in or about the year 1978, that her husband worked in Kericho, and that DW1 moved onto the suit land in 2013 where he occupied about one acre. She stated that she was not aware of the chief’s directions and urged the court to uphold her son’s occupation of the suit land. In re-examination, she maintained that the suit land had been shared among four sons, that Timothy Anyonje was one of the beneficiaries, that DW1 had a home on the suit land, that the plaintiff had his own separate parcel, and that she herself resided on the suit land. That marked the close of the defence case. 19.Upon considering the pleadings, the witness statements, the evidence adduced at the trial, and the submissions filed by the parties, the trial court held that the plaintiff had proved his case on a balance of probabilities and was the lawful registered proprietor of Land Parcel No. Kisa/Wambulishe/1578. The court found that the defendant’s allegations of fraud had not been specifically pleaded and strictly proved, and further held that any complaint touching on the succession proceedings through which the plaintiff acquired title ought to have been pursued before the succession court. The trial court also found that the defendant had failed to establish the existence of any trust over the suit land in his favor. The defence and counterclaim were dismissed in their entirety, the plaintiff’s suit was upheld with no order as to costs. 20.Having been dissatisfied with the trial court’s decision, the appellant lodged the present appeal vide a Memorandum of appeal dated 3rd March 2025, citing the following grounds of appeal:a.That the learned magistrate erred in law by relying on evidence which was not proven on a balance of probabilityb.That the learned magistrate erred in law by failing to establish that the Respondent had acquired the title by fraudc.That the learned magistrate erred in fact by failing to find that the respondent had two letters of administration of grant over the same estate of the deceasedd.That the learned magistrate erred in law by holding that the Appellant had failed to prove that the Respondent held the suit land in truste.That the learned Magistrate erred in law and in fact by failing to hold that the Appellant had established an interest on the said suit landf.That the learned magistrate erred in fact by holding that the Respondent resides on the suit land contrary to the evidence given in court.g.That the learned magistrate erred in fact by holding that the Appellant had only stayed on the said suit land since the year 2022 21.The appellant sought that the trial court’s judgment be set aside; that this court enters judgment for the appellant as sought in the counterclaim and grants the appellant costs. The appeal was canvassed by way of written submissions. On record are submissions by the appellant dated 23rd September 2025 and submissions by the respondent dated 8th October 2025; both of which this court has duly considered. Appellant’s submissions. 22.The appellant submitted that the trial court erred in holding that the respondent had proved his case on a balance of probabilities. He cited that case of Khisa v Lukorito & Another [2025] (KLR) and argued that the respondent’s claim before the subordinate court was founded on trespass and illegality, yet the particulars pleaded in support thereof were not proved. It was contended that there was no evidence to support the allegations of forcible detainer, subdivision of the land by the appellant, bad faith, greed, land grabbing, or unlawful development of the suit land without consent. The appellant further submitted that the respondent’s case was internally inconsistent, in that on the one hand he alleged that the appellant was a trespasser, yet on the other hand admitted that the appellant and his family had been settled on the land. It was thus argued that the respondent failed to discharge the burden of proof placed upon him by law. 23.On the question of title, the appellant submitted that although the respondent was the registered proprietor of Land Parcel No. Kisa/Wambulishe/1578, that registration was disputed on grounds that the title had been procured fraudulently. He argued that the suit land was ancestral land whose history could be traced to the original parcel No. Kisa/Wambulishe/1116, and that the registration of the land in the name of the respondent’s predecessor was done in trust for other family members. According to the appellant, the respondent unlawfully acquired title through a fraudulent scheme and by excluding the appellant’s side of the family, notwithstanding their long occupation and claim to the land. 24.The appellant further submitted that the respondent had conducted two succession causes in respect of the same estate, namely Butere Succession Cause No. 9 of 2012 and Butere Succession Cause No. 7 of 2016, through which he separately acquired parcels Nos. Kisa/Wambulishe/1577 and 1578. It was urged that the filing of two succession causes over the same estate and property was fraudulent, irregular, and amounted to concealment of material facts. The appellant faulted the trial court for declining to interrogate that issue on the basis that it belonged to the probate court, contending instead that the question of fraudulent acquisition of title was properly before the trial court in the land dispute. To buttress his case, the appellant relied on the case of Chail (Suing as the Legal Representative of the Estate of the late Balozi Chai Ngala) v Kahindi & 6 Others [2025] KEELC 3148 [KLR]. 25.Regarding trust and beneficial interest, the appellant placed reliance on the case of Isaac Mínanga Kieba v Isaaya Theuri M’lintari & Another [2018] e KLR and submitted that the suit land was family land and that the registration of the original parcel in the name of Henry Kubati Mahare was done in trust for the wider family, including the appellant’s lineage. 26.He maintained that the parcel now in dispute fell to the share of his late father, Timothy Anyonje, through their grandfather Alexander Ambayo, and that he had resided thereon with his family long before the year 2022. On that basis, it was argued that the appellant had established both an interest in the land and the existence of a customary trust, and that the trial court erred in dismissing that claim. He prayed for the court to allow the appeal, set aside the judgment of the trial court, and award costs to him. Respondent’s submissions. 27.On whether the respondent had proven his case, the respondent submitted that the trial court was correct in finding that he was the registered proprietor of Land Parcel No. Kisa/Wambulishe/1578 and that the appellant was a trespasser thereon. On what constitutes trespass, the respondent relied on the case of C.K.K. Estate [1973] Limited v County Government of Kiambu & Another [2018] e KLR. He argued that the title deed and certificate of official search produced at the trial were prima facie proof of ownership under section 26(1) of the Land Registration Act, and that the appellant himself admitted in cross-examination that he occupied and resided on about 1½ acres of the suit land. The respondent further relied on the chief’s minutes and his own evidence to contend that the appellant had constructed an illegal structure on the land and had thereby interfered with the respondent’s proprietary rights. 28.On the allegation of fraud, reliance was placed on the case of Nancy Kahoya Amadira v Expert Credit Limited & Another [2015] e KLR for the proposition that fraud ought not only be pleaded but has to be strictly proved. The respondent also submitted that fraud was a serious allegation which had to be specifically pleaded and strictly proved, and that the appellant had failed to meet that threshold. It was contended that the particulars of fraud set out in the counterclaim were vague, unsupported by evidence, and did not demonstrate any illegal acquisition of title within the meaning of Section 26 of the Land Registration Act. The respondent further argued that the appellant did not tender evidence of any criminal complaint, investigation, or documentary proof of fraud, and that the trial court was therefore right to reject that allegation. 29.The respondent also submitted that any grievance relating to the succession proceedings through which title was acquired ought to have been ventilated before the Probate and Administration court, and not before the trial court exercising Environment and Land jurisdiction. In that regard, it was argued that the trial court could not sit on appeal over succession proceedings or question the validity of a certificate issued in a succession cause. The respondent therefore supported the trial court’s holding that the appellant’s complaint on succession was misplaced. 30.Finally, on the issue of trust, the respondent submitted that the appellant had neither pleaded nor proved any trust over the suit land. It was contended that a claim founded on customary trust must be specifically pleaded, particularized and proved, and that the appellant only raised the issue belatedly without laying a proper evidentiary basis for it at the trial. On that footing, the respondent urged the court to find that the appeal lacked merit and to dismiss it with costs. Analysis and determination 31.The court has carefully considered the appeal, the entire record and rival submissions. The duty of this court as a first appellate court is to reassess, reconsider and reanalyze, the evidence presented in the trial court and make its own independent conclusions bearing in mind that it had no opportunity to see or hear witnesses and make due allowance for that. 32.In the case of Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR, the court reiterated the duty of the first appellate court thus;“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way…’’ 33.However, it is trite that the court should not unnecessarily deviate from the finding of the lower court unless there are compelling reasons to do so. In Peters v Sunday Post Ltd [1958] EA 424, the Court held that;“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide” 34.In the instant matter, the appellant faulted the findings of the trial court on the basis that the acquisition of registration of the suit property by the respondent was fraudulent allegedly due to issuance of two grants in respect of one deceased person and that the appellant had proved the existence of trust. 35.I have considered the defence and counterclaim. He claimed that the appellant conducted succession secretly and failed to take into account the appellants interest and that he used two grants to obtain registration. 36.The issue of whether succession was done secretly and which grant ought to have carried the day are matters for determination by the Probate and Administration court and the trial court having been duly constituted as an Environment and Land court, could not interrogate that issue. 37.If the appellant thinks that succession was done secretly, he can only challenge the same in a Probate and Administration court not in an Environment and Land court. That having been said, it is my finding that the issues of fraud as raised by the respondent which are tied to questions of succession, could only be raised in a succession court and not in an ELC Court. Without a decision from the Probate and Administration court upsetting the acquisition of the suit property by the respondent through succession, allegations of fraud have not been proved. 38.I now turn to the question of whether trust was established. 39.Section 28 of the Land Registration Act provides that trusts including customary trusts are overriding interests whereof registered land is subject to. 40.In the case of Isack Kieba Mínanga v Isaaya Theuri M’Lintari & Another [2018] e KLR, the Supreme Court of Kenya, explained the elements of customary trust as follows;“Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are: are:1.The land in question was before registration, family, clan or group land.2.The claimant belongs to such family, clan, or group3.The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous.4.The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.5.The claim is directed against the registered proprietor who is a member of the family, clan or group.” 41.Similarly, in the case of Kamau v Thiga (Environment and Land Appeal 5 of 2021) [2022] KEELC 2839 (KLR) (21 July 2022) (Judgment) the court sated as follows;“The legal burden of proving existence of trust rests with the one who is asserting a right under customary trust. To discharge this burden, the person claiming must prove that; The suit properties were ancestral land; During adjudication and consolidation, one member of the family was designated to hold on behalf of the family; The registered persons were the designated family members who were registered to hold the parcels of land on behalf of the family. In essence he had to lay bare the root of the title to create the nexus or link of the trust to the title holder and the claimant.” 42.Therefore, to prove customary trust, a claimant ought to demonstrate that;1.The land in question was before registration, family, clan or group land.2.The claimant belongs to such family, clan, or group. 3.The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous. 4.The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances; and 5.The claim is directed against the registered proprietor who is a member of the family, clan or group. 43.I have considered documents availed by the appellant, which in my view give part of the history of the suit property. It is clear that the suit property was originally parcel No. Kisa/Wambulishe/1116, registered in the name of Henry Kubati Mahare. That property was then subdivided into parcel Nos. 1483 and 1484. Parcel 1483 was subdivided into 1493 and 1494. Parcel 1493 was subdivided into 1577 and 1578. The ownership of the other subdivisions is not disclosed. 44.Although the appellant pleaded that Henry Kubati Mahare was his grandfather, he conceded in cross examination that his father was the son of Timothy Ambayo who in turn is a son of Alexander. Further that Alexander and Henry Kubati were brothers. That Mahare was the father of both Alexander and Henry. That means that Henry Kubati Mahare was not his grandfather. 45.The original parcel No. 1116 was first registered upon adjudication on 21st September 1964 in the name of Henry Kubati Mahare. The appellant did not suggest that the registration of the suit property in the name of Henry Kubati Mahare was in trust for the entire family of Mahare. Mahare had other sons beside Henry and Alexander. He also did not challenge the legality of that registration in the name of Henry. He is not a son or grandson of Henry. He alleged occupation from the 1970s, gave evidence that he entered the suit land in 2013 but no evidence of continued occupation beyond what the respondent had pleaded was availed, and therefore occupation beyond a year, that is since 2021, was not proved. The appellant has not demonstrated the requirement that the appellant could have been entitled to be registered as owner of the suit property, but for some intervening circumstances. 46.In the premises, it is clear to me that the appellant did not prove customary trust against the respondent who only got registered as proprietor upon succeeding his father’s estate. I agree with the findings of the trial court and have no reason whatsoever for interfering with the conclusions made by the trial court. 47.The upshot is that I find no merit in the appeal before me which I hereby dismiss. Section 27 of the Civil Procedure Act provides that costs are awarded at the court’s discretion and shall follow the event. Many factors determine how the court exercise its discretion in awarding costs, one of them being the relationship of the parties and the need to preserve harmony between parties. In the instant case, I take cognizance of the fact that the parties herein share a common ancestry, but in view of the fact that the respondent has borne his costs in the lower court, I order that the appellant shall bear the costs of this appeal. 48.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 3RD DAY OF JUNE, 2026A. NYUKURIJUDGEIn the presence of;The appellant in personThe respondent in person.Court Assistant: Delphine