Ballenger v Walumbe & another (Sued as Officials of World Hope Mission Kenya) (Environment and Land Case E011 of 2026) [2026] KEMC 565 (KLR) (6 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **ELC CASE NO. E011 OF 2026** **BARRY EARL BALLENGER…………..…………..………….……………………….PLAINTIFF** **VERSUS** **DAVID WALUMBE & JOHN OLUTUKAI WALUMBE (Sued as officials of WORLD HOPE MISSION KENYA)…….……………….…………..……………………………..DEFENDANTS** **JUDGMENT** 1. The Plaintiff moved this court by a Plaint dated 14th January 2026, praying for judgment against the Defendants for:- 2. *A declaration that the Plaintiff is the owner of all that* *land parcel number West Bukusu/North Mateka/Block 454* 3. *Permanent injunction restraining the Defendants, either by themselves, their agents, servants, or in any manner whatsoever, from trespassing in (sic) land parcel number West Bukusu/North Mateka/Block 454* 4. *That the motor vehicles purchased used (sic) the Plaintiff’s funds be released to the Plaintiff* 5. *Any other relief the court may deem fit to grant* 6. *Costs of this suit* 7. The Plaintiff pleaded that while being hosted by the 1st Defendant, he developed an interest in purchasing a parcel of land for construction of a petrol station. The 2nd Defendant reportedly identified land parcel number West Bukusu/North Mateka/Block 454 (“the suit property”) registered in the name of Kinyosi Walumbe Makobi (deceased) for the Plaintiff to purchase. 8. The Plaintiff further averred that he was made to believe that he could not directly transact with the suit property’s owner since he was a foreigner. This prompted him to reportedly transfer money from his bank account number 107268XXX held at First Interstate Bank’s Kalispell, Montana branch to the Defendants’ bank account number 0480264541XXX held at Equity Bank Bungoma branch for the purchase of the suit property and motor vehicles. 9. He added that the Defendants purchased the suit property and motor vehicles using the Plaintiff’s money but failed to transfer the same to the Plaintiff; hence this suit. 10. The Plaintiff also pleaded that the dispute between him and the Defendants on the ownership of the suit property persisted until the deceased died on 16th April 2024, before transferring the suit property to him. 11. The Defendants neither entered appearance nor filed their Statement of Defence despite having been duly served with the pleadings on record and the Summons to Enter Appearance. In the circumstances, this matter proceeded by way of formal proof. **EVIDENCE** **Plaintiff’s case** 1. **PW1 Barry Earl Ballenger** adopted his witness statement dated 14th January 2026 as his evidence in chief. His testimony was largely a rendition of the averments in his Plaint summarized above. Therefore, it will not serve any purpose to reproduce the same here. 2. He also produced his bank account listing for his bank account number 2044569XXX ABSA bank Bungoma branch for the period from 01st January 2021 to 15th December 2022, sale agreement dated 13th September 2021 between World Hope Mission Kenya and Martin Sirengo Wafula for the purchase of a plot to be hived from the suit property, sale agreement dated 14th September 2021 between World Hope Mission Kenya and Godfrey Wamboka for the purchase of a plot to be hived from the suit property, and a sale agreement dated 27th April 2021 between World Hope Mission Kenya and Timona Muchwangi Sakula for the purchase of 4.35 hectares of land to be hived from land parcel number West Bukusu/North Mateka/3221 as exhibits. **ANALYSIS & DETERMINATION** 1. It is worth noting that the Plaintiff’s counsel did not file written submissions despite undertaking to file the same. 2. This matter proceeded by way of formal proof. The law in this jurisdiction is that the legal burden of proof lies with the person who alleges. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya, reiterates this legal principle as follows: ***‘****’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.’’* 1. In **Virginia Ngendo Kamau (suing as the Administrator of the Estate of the late Kamau Wangi) v Attorney General & another [2019] KEELC 3733 (KLR),** the court stated as follows regarding an uncontroverted case by a Plaintiff: *“In this regard, therefore the Plaintiff’s evidence as produced in Court remain uncontroverted and unchallenged and therefore there is no reason as to why the Court should not believe it. See the case of Shaneebal Limited v County Government of Machakos (2018)eKLR, where the Court cited the case of Karuru Munyororo v Joseph Ndumia Murage & Another, Nyeri HCCC No.95 of 1988, where the Court held that:-* *“The Plaintiff proved on a balance of probability that she was entitled to the orders sought in the Plaint and in the absence of the Defendant’s and/or their Counsel to cross-examine her on evidence, the Plaintiff’s evidence remained unchallenged and uncontroverted. It was thus credible, and it is the Kind of evidence that a court of law should be able to act upon. ’’* *However, this evidence is not automatic, and the Court is obligated to carefully examine the evidence and determine whether the Plaintiff has discharged the burden of proof. See the case of Gichinga Kibutha v Carooline Nduku (2018)eKLR, where the Court held that:-* *“It is not automatic that instances where the evidence is not controverted the Claimants shall have is way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.’’* 1. Similarly, in **Kisinzi v Kisinzi (Environment & Land Case 15 of 2020) [2022] KEELC 3818 (KLR),** the court stated as follows on an undefended case *“17. Although the suit was undefended, the Plaintiff has a duty to formally prove his case on a balance of probabilities as required by the law.* *18.In the case of Kirugi and Another v Kabiya & 3 others [1987] KLR 347 the Court of Appeal held that;* *“The burden was always on the Plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof”. Likewise, failure by the Defendant to contest the case does not absolve a Plaintiff of the duty to prove the case to the required standard.”* *19.Similarly, in the case of Gichinga Kibutha v Caroline Nduku [2018] ekLR the Court held that;* *“It is not automatic that instances where the evidence is not controverted the Claimants shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.”* 1. The common thread running through the authorities above is that even in the absence of evidence to the contrary by the Defendants, like in the instant case, the Plaintiff is duty-bound to prove his case on a balance of probabilities. 2. Guided by the authorities above, this court will proceed to determine whether the Plaintiff proved his case on a balance of probabilities. 3. The Plaintiff’s bank account listing for the period from 01st January 2021 to 15th December 2022 for his ABSA bank account number 2044569XXX held at Bungoma branch on record shows that the Plaintiff made several withdrawals from the said bank account during the period the sale of land agreements herein were executed. In the absence of evidence to the contrary, this proves on a balance of probabilities that the Plaintiff financed the Defendants' payment for the deposits and considerations paid to the sellers of land set out in the sale of land agreements on record. 4. However, the sale agreement dated 13th September 2021 and the sale agreement dated 14th September 2021 produced by the Plaintiff in support of his case that he purchased the suit property through the Defendants show that the Defendants only paid the deposit for the plots which were to be hived from the suit property. The terms of those agreements are express that the balance of the consideration was to be determined after the official survey to determine the plots’ actual size. 5. The Plaintiff did not call the sellers of the plots set out in the sale agreement dated 13th September 2021 and the sale agreement dated 14th September 2021 to confirm if the consideration for the plots in question was paid in full. Further, the said agreements show that the sellers therein were selling to the Defendants plots to be hived from the suit property. There is nothing on record to show that the Defendants bought the whole suit property. 6. In the absence of evidence alluded to in paragraph 17, this court is unable to make a finding that the property in the suit property was ultimately transferred to the Defendants for the Plaintiff to claim ownership of the suit property. 7. This court further notes that the Plaintiff did not place before this court the suit property’s current certificate of official search for this court to be satisfied that there is no other person(s) in occupation or in use of the suit property before making any orders in respect of the suit property. 8. The said suit property’s current certificate of official search would have enabled this court to make orders including joinder of a party or parties who needed to be heard in this case before any order is made regarding the suit property. 9. Given that the Plaintiff pleaded that the suit property’s registered owner died after execution of the sale of land agreements on record, this court takes the view that this was a proper case for the Plaintiff to join the deceased’s estate’s administrator or personal representative to this case for them to be heard before this court could make any orders regarding the suit property. 10. In the circumstances, given that the Plaintiff is a foreigner, if this court was to make a declaration that the Plaintiff owns the suit property on a 99-year lease per Article 65(2) of the Constitution before hearing the parties who are currently possibly in occupation of the suit property, there is a risk that another land dispute is likely to arise regarding the ownership of the suit property on the ground that adverse orders have been made against other people without allowing them to be heard. 11. Turning to the question of whether the Defendants bought a Land Cruiser motor vehicle and motorcycle using the Plaintiff’s money, this court notes that the Plaintiff did not plead the said motor vehicle and motorcycle’s registration numbers. 12. The absence of the said motor vehicle and motorcycle’s registration numbers raises doubts on the existence of the same. The Plaintiff ought to have pleaded the registration numbers of the said motor vehicle and motorcycle and filed copies of the records for the same, so that this court may satisfy itself as to whether or not other people ought to be heard before this court makes any orders on the ownership of the alleged motor vehicle and motorcycle. 13. The risk of a court making a declaration over ownership of any property in the absence of evidence of current ownership details of the disputed property was well explained by Muchelule J (as he then was) in **BJL v JKL [2022] KEHC 1096 (KLR)** as follows: *“10. It is clear from paragraph 4 of the originating summons and paragraph 11 of the further affidavit that the applicant does not know in whose name the properties in question have been registered. The problem with this is that the court can be placed in a situation where it will make orders of preservation over properties that belong to third parties without affording those parties an opportunity to be heard. Under these circumstances, the most appropriate thing to do is to wait for evidence to be given regarding the acquisition of the property and their ownership status, before a declaration is made over them.”* 1. The foregoing shows that the evidence on record is barely adequate for this court to grant the Plaintiff the prayers sought. Simply put, the Plaintiff has failed to prove his case on a balance of probabilities. **DETERMINATION** 1. The upshot of the foregoing is that the Plaintiff’s suit is dismissed with no order as to costs. 2. Judgment accordingly. **Read, signed, and delivered in open Court at Bungoma this 06th day of August 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** C/A: Mr. Rioba