https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4529

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ISIOLO** **ELC NUMBER E005 OF 2025** BEL SOLUTIONS LTD………………………………………….…PLAINTIFF **VERSUS** ISIOLO GENERAL FARMERS CO-OPERATIVES SOCIETY LIMITED ……………….…..1ST DEFENDANT AHMED ABDULLAHI MOHAMMED ……………....……2ND DEFENDANT **JUDGMENT** 1. The Plaintiff, which is a limited liability company, approached the court *vide* the Plaint dated the 24.10.2025. The Plaint under reference was subsequently amended and thereafter re-amended. The operative Plaint is the Further amended Plaint dated the 17.03.2026; and wherein the Plaintiff has sought various reliefs. 2. The reliefs sought are: 3. ***An order of injunction against the Defendants, successors, assigns, their agents or anyone claiming under them stopping them from alienating, accessing, constructing on, wasting, damaging, sale, removal, or disposition of the property known as Plot No. 560 Isiolo during the term and subsistence of the lease between the plaintiff and the 1st defendant.*** 4. ***An order for mense profits against the defendants for wrongful possession of the suit property.*** 5. ***Costs of the suit.*** 6. ***Interest on [b] above at court rates from dated of filing suit.*** 7. ***Any other relief that this Honourable court may deem fit* to grant.** 8. The Plaintiff ‘s claim is anchored on various assertions. The assertions are: The plaintiff duly entered into and executed a lease agreement with the 1st defendant; the lease was entered into on the 30.10.2023; the lease was reduced into writing; the 1st defendant demised plot number 560 Isiolo [the suit property] to the plaintiff; the plaintiff duly entered into and took possession of the demised property; the plaintiff fenced the suit property; and the plaintiff was/is a lawful tenant of the 1st defendant. 1. Additionally, the plaintiff has posited thus: The original lease agreement was amended on the 25.11.2023; the duration of the lease was confirmed to be 15 years; the plaintiff was obliged to pay the sum of Kshs. 100,000/= only per month on account of rents; the plaintiff duly paid the rents; the 1st defendant nevertheless proceeded to and entered into another lease agreement with the 2nd defendant; the lease agreement between the 1st defendant and the 2nd defendant is unlawful; and the defendants have violated the plaintiff’s right to the suit property. 2. Arising from the foregoing, the plaintiff has contended that same has since suffered loss and incurred damages. To this end, the plaintiff has itemized her claim, in terms of the reliefs that have been set out/outlined elsewhere herein before. 3. The 1st defendant duly entered appearance and filed a statement of defence. The statement of defence was thereafter amended in terms of the defence dated 30.03.2026. The 1st defendant has denied the claims by /on behalf of the plaintiff. In particular, the 1st defendant has posited that same has never entered into or executed any lease agreement with the plaintiff. Furthermore, the 1st defendant contended that no rent[s] were ever paid to or received by the 1st defendant. 4. In addition, it was contended that the payments, if any, that were made by the plaintiff, were never channeled to the 1st defendant. Consequently, the 1st defendant invited the Plaintiff to strict proof. 5. The 2nd defendant duly entered appearance and thereafter filed a statement of defence. The statement of defence was later amended in the terms of the amended statement of defence dated the 29.04.2026. The 2nd defendant has stated thus: The 2nd defendant entered into a lease agreement with the 1st defendant; the lease agreement was reduced into writing; the lease agreement was for a duration of 10 years; the 1st defendant allowed the 2nd defendant to enter upon and take possession of the demised portion of the suit property; the 2nd defendant has since developed the demised portion of the suit property; and suit property was vacant at the time same was handed over to the 2nd defendant. 6. Further, and in addition, the 2nd defendant has contended that same did not enter into any contract/tenancy with the plaintiff. To this end, the 2nd defendant has posited that the plaintiff has no lawful claim or cause of action as against same. In this regard, the 2nd defendant has sought the dismissal of the plaintiff’s suit. 7. The suit came up for pre-trial conference, whereupon the advocate[s] for the parties confirmed that same had filed and exchanged their list and bundle of documents; list of witnesses; and witnesses statements. In this regard, the parties intimated that the matter was ready for hearing. 8. The plaintiff’s case is premised on the evidence of one witness, namely; Ali Hero Konchara. Same testified as PW1. 9. It was the testimony of the witness [PW1] that same is a director of the Plaintiff company. In addition, the witness averred that by virtue of being a director of the company, same is familiar with the facts of this case. Moreover, the witness posited that same has since filed a witness statement dated the 04.05.2026 and which statement, the witness sought to adopt and rely on as his evidence in chief. 10. There being no objection to the admission /adoption of the witness statement, same was duly adopted and constituted as the evidence in chief of the witness. 11. The witness further referenced the list and bundle of document dated the 24.10.2025, containing eleven [11] documents. The witness sought to tender and produce the documents as exhibits before the court. There being no objection, the documents were tendered and admitted as Exhibits P1 – P11, respectively. 12. Additionally, the witness alluded to the further list and bundle of documents dated the 30.04.2026 and also sought to tender the documents thereunder. Suffice it to state that the documents were admitted as exhibits P12 and 13, respectively. 13. Other than the foregoing, the witness referenced the Further amended Plaint dated the 17.03.2026 and thereafter sought to rely thereon. The witness invited the court to grant the reliefs at the foot of the Further amended Plaint. 14. On cross examination by learned counsel for the 2nd defendant, the witness averred that he is one of the directors of the plaintiff company. In addition, the witness testified that the plaintiff generated resolutions authorizing the filing of the suit. Besides, the witness intimated that he has been mandated to attend court and give evidence on behalf of the plaintiff. Nevertheless, the witness conceded that the resolutions authorizing the filing of the suit, have not been produced before the court. 1. Upon being referred to exhibit P5, the witness averred that the document is a copy of the lease entered into between the plaintiff and the 1st defendant. However, the witness admitted that the lease document does not bear the seal of the plaintiff company. The witness further averred that the execution segment of the lease does not contain the seal of the company. 2. While still under cross examination, the witness testified that the lease document [exhibit P5], does not contain the name of the plaintiff, as the lessee. On the contrary, the witness averred that the lease documents contain the names of various people. Furthermore, the witness posited that the said people are indicated to be the lease[s] of the demised property. 3. Upon being referred to exhibit P7, the witness averred that the document is a copy of the receipt issued by Isiolo Central Farmers. The witness added that the receipt also contained the rubber stamp of Isiolo Central Farmers. The witness however, admitted that the receipt tendered does not reference Isiolo Central Farmers Cooperative Society Limited. 1. Upon being referred to exhibit P4, the witness averred that the document is a copy of the Mpesa Statement. The witness clarified that the statement contains a cell phone number on the face thereof. It was pointed out that the cell phone number and the identity card number shown on the Mpesa Statement belong to one, Ali Abdi Hussein. Furthermore, the witness posited that Ali Abdi Hussein is one of the persons who signed the lease. 2. While still under cross examination, the witness testified that the Mpesa statement [exhibit P4] indicates that the payments were being remitted to one, Fatuma Dahir. In addition, the witness averred that Fatuma Dahir was the chairlady of Isiolo Central Farmers. 3. It was the testimony of the witness that the various monies that are captured at the foot of the Mpesa Statement were paid to Fatuma Dahir and not to the 1st defendant. Furthermore, the witness averred that same has not produced before the court any evidence, to show that the Plaintiff company authorized Ali Abdi Hussein to pay any monies on its behalf. 4. Regarding whether the plaintiff ever took possession of the demised premises, the witness testified that the plaintiff was indeed given vacant possession. However, the witness clarified that possession of the demised premises, was not given on the date of the execution of the lease agreement. 1. On further cross examination, the witness averred that possession was given about one month after the execution of the lease agreement. However, the witness stated that he could not recall the month when the plaintiff was given possession. Moreover, the witness admitted that he has not produced any document to show that the plaintiff indeed took possession of the demised premises. 2. It was the further testimony of the witness that the plaintiff fenced the suit property. Besides, the witness averred that the plaintiff obtained the requisite approvals from the county government of Isiolo, to facilitate the erection of the fence. However, the witness conceded that no such approval has been tendered before the court. 3. Additionally, the witness testified that same is aware that the 2nd defendant entered into a lease agreement with the 1st defendant. Furthermore, the witness stated that the 2nd defendant duly entered and took possession of the demised premises. 4. Upon being referred to exhibits P12 and p13, the witness averred that the said documents, were authored/prepared by his accountant. However, the witness admitted that the document[s] do not bear the name of the author. In addition, the witness conceded that the document[s] also do not bear the qualifications of the person, who prepared same. 5. On cross examination by learned counsel for the 1st defendant, the witness testified that the suit before the court has been filed against Isiolo Central Farmers Cooperative Society Limited. However, the witness posited that the receipts tendered before the court and the lease agreement do not reflect the name of the 1st defendant. In particular, the witness conceded that the lease agreement and the receipt[s] relate to Isiolo Central Farmers. 6. It was the testimony of the witness that the original lease was entered into on the 30.10.2023. Nevertheless, the witness averred that the lease was subsequently amended. It was averred that the amended lease is dated the 25.11.2023. 7. Upon being referred to exhibit P4, the witness reiterated that the document is a copy of the Mpesa Statement. The witness clarified that there is no indication that the monies were being paid by the plaintiff company to the 1st defendant. Moreover, the witness added that the plaintiff was issued with receipts bearing the name Isiolo Central Farmers. 1. Regarding exhibit P13, the witness clarified that the document is a report prepared by his Accountants. The witness clarified that the document is neither signed nor stamped. In addition, the witness also admitted that the 2nd defendant is the one on the suit property. 2. On re-examination, the witness testified that the plaintiff entered into the lease agreements with the officials of the 1st defendant. Furthermore, the witness testified that the monies captured at the foot of Mpesa Statement were being paid to Fatuma Dahir, on behalf of the 1st defendant. The witness added that the plaintiff was thereafter issued with acknowledgment receipts. 1. With the foregoing testimony, the Plaintiff ‘s case was closed. 1. The 1st Defendant’s case is anchored on evidence of one witness. The witness is Abdullahi Dika. The witness testified as Dw1. 2. It was the testimony of the witness that the same is the treasurer of Isiolo Central Farmers’ Cooperative Society Limited. In addition, the witness averred that the society is the one, which has been sued as the 1st defendant. Furthermore, the witness posited that by virtue of being the treasurer, same is the familiar with the facts of this case. 3. The witness further testified that in respect of the subject matter, same has since recorded and filed a witness statement. The witness alluded to the statement dated the 30.01.2026; and which statement, the witness sought to adopt as his evidence in chief. Suffice it to state that the witness statement was duly adopted and constituted as the evidence in chief of the witness. 4. Additionally, the witness referenced the list and bundle of documents dated the 30.01.2026, containing five [5] documents. The witness thereafter sought to tender and produce documents as exhibits before the court. There being no objection to the production of the documents, same were tendered and admitted as exhibits D1 to D5 respectively. 5. It was the further testimony of the witness that the 1st defendant duly filed an amended statement of defence. The witness referenced the statement of defence dated the 30.03.2026. Thereafter, the witness sought to adopt the contents thereof. 6. On cross examination by learned counsel for the 2nd defendant, the witness indicated that the 2nd defendant duly entered into a lease agreement with the 1st defendant. In addition, the witness averred that the 2nd defendant paid the sum of Kshs. 3,500,000/= only into the account of the 1st defendant. Furthermore, the witness posited that the 2nd defendant has continued to pay the monthly rents. 7. Regarding exhibits P7, P8 and P9, respectively, the witness testified that the said documents are receipts. The witness averred that the receipts bear the name of Isiolo Central Farmers. The witness clarified that the receipts did not emanate from the 1st defendant. 8. On cross examination by learned counsel for the plaintiff, the witness testified that he was duly elected as the treasurer of the 1st defendant. The witness averred that there were minutes relative to the elections of the Officials of the Society. The witness thereafter referenced the minutes dated the 19.11.2024. 9. Upon being referred to minutes number Three [3], the witness posited that one Fatuma Dahir was previously the chairperson of the 1st defendant. The witness further added that Fatuma Dahir and her group, were removed from office because of governance issues. 10. While still under cross examination, the witness testified that the 1st defendant did not enter into or execute any lease agreement with the Plaintiff. Moreover, the witness averred that the lease agreement [Exhibit P4] was not stamped by the 1st defendant. 11. With the foregoing testimony, the 1st defendant’s case was closed. 12. The 2nd defendant’s case is premised on the evidence of one [1] witness. The witness is Ahmed Abdullahi. The witness testified as DW2. 13. It was the testimony of the witness that same is the 2nd defendant. The witness posited that by virtue of being the 2nd defendant, same is familiar with the facts of the case. In addition, the witness averred that he has since recorded and filed a witness statement dated the 30.04.2026, which statement the witness sought to adopt as his evidence in chief. Suffice it to state that the statement was adopted and constituted as the evidence in chief of the witness. 14. The witness also referenced the list and bundle of documents dated the 30.04.2026 and sought to produce the documents thereunder as exhibits. There being no objection, the documents at the foot of the bundle [copy of the lease agreement] was admitted as exhibit D1 on behalf of the 2nd defendant. 15. On cross examination by learned counsel for the 1st defendant, the witness testified that the 1st defendant duly entered into a lease agreement with the 2nd defendant. The witness also posited that the lease agreement was reduced into writing. In addition, the witness averred that the 2nd defendant was put in possession of the demised portion of the property. 16. On cross examination by learned counsel for the plaintiff, the witness averred that same undertook due diligence and indeed confirmed that the suit property belonged to the 1st defendant. The witness added that the 1st defendant thereafter entered into a lease agreement and handed over the suit property unto him. 17. It was the further testimony of the witness, that same took possession and commenced construction on the suit property in March, 2025. The witness clarified that when he entered onto the suit property, same [property] was vacant. 18. On re-examination the witness testified that he entered into a lawful lease agreement with 1st defendant. Furthermore, the witness averred that he duly paid the monies in accordance with the terms of the lease agreement. In addition, the witness clarified that he does not have any dispute as pertains to payment of rents with the 1st defendant. 19. With the foregoing testimony, the 2nd defendant’s case was closed. 20. Following the conclusion of the hearing, the advocate[s] for the parties sought time to file and exchange their written submissions. To this end, the court proceeded to and issued directions, pertaining to and concerning the filing and exchange of the written submissions. In particular, the court directed thus: The plaintiff shall file and serve written submissions within 14 days from the date of the directions; the defendants shall be at liberty to file and serve written submissions within 14 days from the date of service; and the plaintiff shall be at liberty to file rejoinder submissions [if any] within 7 days from the date of service. 21. The Plaintiff filed written submissions dated the 18.05.2026 and wherein same has highlighted nine [9] key issues. The issues are: Whether the plaintiff has a valid and enforceable lease agreement over the suit property; whether the plaintiff executed a lease with the bona fide officials of the 1st defendant; whether the said officials had the authority of 1st defendant to execute the leased; whether the 1st defendant is bound by the terms of the lease; whether the plaintiff paid the rent deposited in respect of the suit property; whether the plaintiff was granted vacant possession of the suit property; whether the 2nd defendant has encroached onto the suit property; and whether the lease between the 1st and 2nd defendant superseded the lease between the plaintiff and the 1st defendant or otherwise. 22. The 1st defendant filed written submissions dated the 17.06.2026. The 1st defendant has highlighted two [2] key issues. The issues are: Whether the Plaintiff has proved its case on a balance of probabilities; and whether the Plaintiff is entitled to the reliefs sought. 23. The 2nd Defendant filed written submissions dated the 17.06.2026 and wherein same has highlighted three [3] key issues. The issues are: Whether the plaintiff has the locus standi to mount/maintain the suit; whether the plaint discloses a reasonable cause of action against the 2nd defendant; and whether the plaintiff is entitled to the reliefs sought or otherwise. 24. Having reviewed the pleadings filed by/on behalf of the parties; upon appraising the evidence tendered [both oral and documentary]; and upon consideration of the written submissions on the record, three [3] key issues crystalize for determination. The issues are: Whether the plaintiff has established a reasonable cause of action/claim as against the 2nd defendant; Whether the plaintiff has proved its case [if at all] against the 1st defendant; and What reliefs [if any] ought to be granted. 25. Regarding the first issue, it is important to recall and reiterate that the crux of the Plaintiff’s case is to the effect that same [ Plaintiff] entered into and executed a lease agreement with the 1st defendant. It was posited that the lease agreement was entered into on the 30.10.2023. In addition, it was posited that the lease agreement was subsequently amended culminating into the one dated 25.11.2023. 26. It was the further contention by / on behalf of the plaintiff that upon entry into and execution of the lease agreement, the plaintiff was placed in occupation/possession of the demised premises. Moreover, it was contended that thereafter the plaintiff fenced the demised premises. 27. Be that as it may, PW1 testified that the 1st defendant disregarded, nay, breached the lease agreement by entering into another lease agreement with the 2nd defendant. In addition, it was posited that thereafter, the 2nd defendant entered into and took possession of the suit property. 28. The plaintiff has contended that the entry into and execution of the lease agreement between the 1st defendant and the 2nd defendant, has violated the plaintiff’s rights over the suit property. In fact, it has been contended that the 2nd defendant has encroached on to the suit property. 29. Despite the foregoing assertions, the plaintiff has not indicated that same ever entered into a dealing or transaction, with the 2nd defendant. If anything, the only nexus [if at all] is the fact that the suit property was demised to both parties. 30. If and I say if, the plaintiff is able to prove its case, then the remedy [if at all], lies against the 1st defendant, who was/is the lessor. The plaintiff herein has no relationship or connection with the 2nd defendant. There is no privity of contract between the said parties. 31. At any rate, there is no assertions that has been alluded to in the body of the plaint to connect the 2nd defendant to [sic] the grievances of the plaintiff. I wish to add that the plaintiff’s claims [if proved] lie in the realm of breach of contract. Such claims can only be pursued as against the party chargeable with breach. The claims [if at all] cannot be pursued against strangers or parties at large. 32. Consequently, it is my finding and holding that the plaintiff has no cause of action as against the 2nd defendant. Absent a cause of action, the plaintiff herein is non-suited. 33. Before concluding on this issue, it suffices to take cognizance of the holding in the case of **Kigwor Company Limited v Samedy Trading Company Limited [2021] KECA 810 (KLR),** where the court of appeal illuminated the meaning and import of a cause of action. 34. The court stated thus: **“In the Court of Appeal case of Attorney General & another v Andrew Maina Githinji & Another [2016] eKLR Justice Waki held that:-** **“A cause of action is an act on the part of the defendant, which gives the plaintiff his cause of complaint.”** **That definition was given by Pearson J. in the case of *Drummond Jackson* vs. Britain Medical Association (1970) 2 WLR 688 at pg 616. In an earlier case, *Read vs. Brown* *(1889), 22 QBD 128,* Lord Esher, M.R. had defined it as:-** **“Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.”** **Lord Diplock, for his part in *Letang vs. Cooper* *[1964] 2 All ER 929* at 934 rendered the following definition:-** **“A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”** **When did the cause of action in this case arise? Put another way, when did the respondents become entitled to complain or obtain a remedy ...”** 1. My answer to issue number one is to the effect that the plaintiff has neither established nor demonstrated any cause of action as against the 2nd defendant. Quite clearly, there is no nexus or correlation between the said parties. In this regard, no liability can accrue as against the 2nd defendant, to warrant being impleaded. 2. I now wish to turn to the second issue, namely; whether the plaintiff has established its case on a balance of probabilities, as against the 2nd defendant. The starting point to interrogating this issue, is by appreciating that the burden of proof lies on the shoulders of claimant. In respect of the instant matter, the claimant is chargeable with the burden of proof. 3. The legal position as pertains to the burden of proof is now well settled. In the case of **Moi v Muriithi & another [2014] KECA 642 (KLR),** the Court of Appeal highlighted the position in the following manner. ***‘It is a firmly settled procedure that even where a defendant has not denied the claim by filing of defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.*** 1. Did the Plaintiff prove her Claim as against the Second Defendant? The Plaintiff had contended that same entered into and executed a Lease agreement with the Second Defendant over and in respect of the Suit Property. Further, it was posited that the Lease agreement was reduced into writing and that same was duly executed by the respective parties. Having made the said assertion, one would have expected the Plaintiff to tender and produce before the Court a copy of the Lease referring to the Plaintiff as the Lessee. 2. However, it is worth pointing out that the Document, which was tendered by and on behalf of the Plaintiff, and which has been relied upon, does not reference the Plaintiff as the Lessee. 3. Suffice it to state that PW1 [ who was the Plaintiff’s sole Witness] tendered Exhibit P5, which is [sic] a Lease Agreement entered into between various Individuals, as the Lessee[s] and [sic] Isiolo Central Farmers, as the Lessor. 4. PW1 conceded during cross-examination that Exhibit P5 does not contain the name of the Plaintiff as the Lessee. This is what the said Witness stated while under cross-Examination by Learned Counsel for the Second Defendant: ***I do confirm that the Last page [the Execution page] of the Agreement does not show that the Plaintiff Company was the One who was entering into the Lease agreement. The document only contains the names of various people. The Name of the Plaintiff is not shown.*** ***……These people are indicated as the Leassee[s] of the Property***. 1. It is the said Document [Exhibit P-5] which the Plaintiff sought to rely upon to demonstrate that same entered into a Lease agreement with the First Defendant. However, it is apparent that the Plaintiff is not the Leasee at the foot of the impugned Lease Agreement. 2. Insofar as the Plaintiff is not indicated or shown to be the Leasee at the foot of the said Document, there is no way, that the Plaintiff herein can purport to reference and rely upon the named document to anchor the claim before the Court. Pertinently, the Plaintiff cannot rely on [sic] a Contract, wherein same was not a party. For good measure, the Doctrine of privity of Contract does apply in respect of the subject matter. 3. Additionally, the Plaintiff contended that the Lease agreement was sanctioned and authorized by the First Defendant. To this end, it was incumbent upon the Plaintiff to tender and produce before the Court evidence of the authorization by the First Defendant. Such authorization could only be communicated *vide* Lawful minute[s] of the First Defendant and not otherwise. However, it is not lost on me that no minutes of the First Defendant authorizing the Lease was ever produced before the Court. 4. Thirdly, it is also worthy to recall that the Witness posited that the Plaintiff paid rents to and in favour of the First Defendant. In this regard, PW1 referred to various receipts, including Exhibits P7,P8 and P9, respectively. Nevertheless, it is worth noting that the said receipts show/ indicate the issuer as ‘Isiolo Central Farmers’; and not Isiolo Farmers Cooperative Society Limited, which is the First Defendant herein. 5. It suffices to state that the Witness [PW1] was at pains to explain the correlation between [sic] Isiolo Central Farmers, on one hand; and Isiolo Central Farmers Cooperative Society Limited. However, there is no gainsaying that the two entities are separate and distinct. In any event, no evidence was tendered by the Plaintiff’s Witness to aver that the entities are one and the same. Absent, evidence to that effect, the Court cannot proceed on the basis of [sic] assumption; speculation; or hypothesis. It is not the duty of the court to make assumption[s]. On the contrary, Courts of Law are guided by evidence. No less. No more. 6. The other aspect that merits consideration relates to the Mpesa Statement which was produced as Exhibit P4. The Witness testified and indicated that the Statement bore the name of one, ALI ABDI HUSSEIN. Furthermore, it was indicated that the said ALI ABDI HUSSEIN is one of the people who executed the Lease Agreement [Exhibit P5]. 7. Additionally, the Witness testified that the Mpesa Statement showed that the Monies were being remitted to the cell-phone number of one, Fatuma Dahir, and not to the account of the First Defendant. Though, the Witness stated that the said Fatuma Dahir was the Chairperson of the First Defendant, no evidence was tendered to show that the said person had been authorized by the First Defendant to [sic] receive rents on behalf of the First Defendant. 8. Barring repetition, it is important to underscore that the First Defendant is a body corporate, which only acts on the basis of minute[s] and resolutions. The First Defendant has no mouth and hence, it behooved the Plaintiff herein to demonstrate that the receipient of the monies was indeed authorized. This was not done. 9. Other than the foregoing, I also wish to state that no evidence was tendered that the monies, which were indicated to have been remitted to the Mpesa Number of Fatuma Dahir, if at all, were remitted to or paid out to the First Defendant, so as to bind the First Defendant. 10. Perhaps, the Plaintiff ought to have called the said Fatuma Dahir to attend court and give evidence on its behalf. This did not happen. In this regard, I wish to state that the court has not basis/ ground, to authenticate that the monies [if at all] were ever remitted to the First Defendant. 11. Finally, and on this issue, I wish to address the question as to whether the Lease agreement was proved, or otherwise. I have addressed the aspects, showing that the Plaintiff was not the Lessee. However, assuming for the sake of argument[s] only, that the name of the Plaintiff had been contained in the Lease Document, there is the question of proof the Lease Document. 12. To begin with, there is no gainsaying that the production of a Document, by and of itself, does not constitute proof of the Document. Production/ admissibility, is the starting point. The person who has produced the Document, is then called upon to prove the Document, as pertain[s] to execution; and veracity. 13. In the case of **Kenneth Mwige Nyaga versus Austi Kiguta [2015] eklr,** the Court of Appeal highlighted the legal position in the following manner: ***18.The mere marking of a document for identification does not dispense with the formal proof thereof. How does a document become part of the evidence for the case? Any document filed and/or marked for identification by either party, passes through three stages before it is held proved or disproved. First, when the document is filed, the document though on file does not become part of the judicial record. Second, when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document. Third, the document becomes proved, not proved or disproved when the court applies its judicial mind to determine the relevance and veracity of the contents – this is at the final hearing of the case. When the court is called upon to examine the admissibility of a document, it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the Court would look not at the document alone but it would take into consideration all facts and evidence on record.*** ***19. The marking of a document is only for purposes of identification and is not proof of the contents of the document. The reason for marking is that while reading the record, the parties and the court should be able to identify and know which was the document before the witness. The marking of a document for identification has no relation to its proof; a document is not proved merely because it has been marked for identification.*** ***20. Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit, it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an unauthenticated account.*** ***21. In Des Raj Sharma -v- Reginam (1953) 19 EACA 310, it was held that there is a distinction between exhibits and articles marked for identification; and that the term “exhibit” should be confined to articles which have been formally proved and admitted in evidence. In the Nigerian case of Michael Hausa -v- The State (1994) 7-8 SCNJ 144, it was held that if a document is not admitted in evidence but is marked for identification only, then it is not part of the evidence that is properly before the trial judge and the judge cannot use the document as evidence.*** ***22. Guided by the decisions cited above, a document marked for identification only becomes part of the evidence on record when formally produced as an exhibit by a witness. In not objecting to the marking of a document for identification, a party cannot be said to be accepting admissibility and proof of the contents of the document. Admissibility and proof of a document are to be determined at the time of production of the document as an exhibit and not at the point of marking it for identification. Until a document marked for identification is formally produced, it is of very little, if any, evidential value.*** 1. Did the Plaintiff prove the Lease Agreement? The Lease agreement related to [sic] a disposition of an Interest in Land and hence the same was by Law, required to be reduced into writing; be executed by the parties chargeable therewith; and thereafter be attested in terms **Section 3 [3] of the Law of Contract Act, Chapter 23, Laws of Kenya.** 2. Proof of a document, which by Law is required to be attested, is governed by the provisions of **Section[s] 70 and 71 of the Evidence Act, Chapter 80**, **Laws of Kenya.** Such documents can only be deemed as proved and be relied upon as evidence, where one of the attesting Witness[es] has been called to testify; and not otherwise. 3. The provisions of **Sections 70 and 71 of the Evidence Act** [supra] stipulate thus: ***“70. Proof of allegation that persons signed or wrote a document.*** ***If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.*** ***71. Proof of execution of document required by law to be attested.*** ***If a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there is an attesting witness alive and subject to the process of the court and capable of giving evidence:*** ***Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document which has been registered in accordance with the provisions of any written law, unless its execution by the person by whom it purports to have been executed is specifically denied.”*** 1. In respect of the instant matter, it is not lost on me that the Plaintiff only called one Witness, *namely,* PW1. The said Witness testified that he was/ is a Director of the Plaintiff Company. Simply put, the Witness was not an attesting Witness to the Lease agreement. 2. Flowing from the discourse, I come to the conclusion, that the Plaintiff did not tender or produce any iota/ scintilla of evidence, to show that same ever entered into, or executed a Lease agreement with the First Defendant. 3. In the absence of evidence in the conventional manner, I am unable to return a finding that the Plaintiff was a Lawful tenant of the First Defendant, or at all. I repeat that the Plaintiff bore the obligation of proving her Claims. [See the provisions of **Sections 108 and 109 of the Evidence Act, Chapter 80, Laws of Kenya].** 4. I now wish to turn to the final issue for consideration. The Issue is What relief[s], ought to issue, if at all. To start with, it is imperative to state that the Plaintiff has sought a plethora of reliefs. It is therefore apposite to address the same sequentially. 5. Firstly, the Plaintiff has sought an Order of permanent injunction as against the Defendants. While dealing with issue number one, elsewhere hereinbefore, I did point out that the Plaintiff has no cause of action as against the Second Defendant. In this regard, there is no basis upon which an order of [sic] Permanent injunction can issue against the said Second Defendant. 6. Regarding the First Defendant, it is worth pointing out that same is the registered owner of the suit property. In this regard, before an Order of Permanent Injunction can issue against same, the claimant must establish some exceptional and plausible basis for doing so. However, in respect of the instant matter, the Plaintiff has not done so. Quite clearly, the Plaintiff did not prove the existence of any Lawful lease binding upon the First Defendant. 7. I beg to state that an Order of Permanent injunction, like the one sought by the Plaintiff, does not issue for the *mere asking.* For coherence, there must be some Legal foundation. 8. The next relief which has been sought by the Plaintiff relates to Mesne Profits. The Plaintiff has prayed for Mesne profits in the sum of Kes. 250,000 Only from the Date of commencement of the Lease dated the 30/10/2023. The said figure has been indicated or captured at the foot of the reliefs. However, the same has not been pleaded and particularized in the body of the Further amended Plaint or at all. 9. It is difficult to appreciate how the Plaintiff reached or arrived at the figure that has been sought. Nevertheless, what I wish to state is that a Claim for Mesne Profits is akin to Special Damage[s] and hence the same must not only be pleaded, but particularized. It is only once same is so pleaded that the Party can venture forward and adduce evidence towards proving the Claim. 10. In the case of **Karanja Mbugua & another v Marybin Holding Co. Ltd [2014] KEELC 378 (KLR)**, the court held that *Mense profits* are akin to special damages. The court further underscored the need to specifically plead *Mense profits*. 11. The court stated thus: ***“This court is alive to the legal requirement that mesne profits, being special damages must not only be pleaded but also proved, as shown by the provisions of Order 21, Rule 13 of Civil Procedure Act. The said provisions state as follows with regard to a decree for possession and mesne profits. [see also the holding of the court of appeal in Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees [2020] KECA 536 (KLR)”*** 1. The other claim relates to recovery of the sum of Kes. 1, 400, 000 Only, which is indicated to be the rents that were paid to the First Defendant. The said claim is premised on the various receipts that were tendered before the Court and marked as Exhibits P7, P8, and P9, respectively. However, PW1 admitted that the said receipts did not emanate from the First Defendant. On the contrary, evidence abound that same were issued by [sic] Isiolo Central Farmers. 2. The foregoing being the position, it then means that the claims, if any, can only be raised as against the said organization; and not the First Defendant. The claim in question is misdirected and legally untenable. 3. The next Claim relates to the prayer for General Damages; Exemplary Damages; and punitive Damages. Firstly, it is important to point out that the Plaintiff’s, if any, lay in breach of contract against the person who [sic] leased the premises unto her. Damages in contract are ascertainable and quantifiable. Same are not at large. In this regard, the claim for general damage[s] is not awardable. 4. With regard to the claim for Exemplary/ Punitive Damages, all that I wish to state is that the Plaintiff did not meet, or satisfy the threshold set/ canvassed in the case of **Municipal Council of Eldoret versus Titus Gatitu Njau [2021] Eklr**. The claim has been mounted in *vacuum.* **Conclusion:** 1. It is the Plaintiff who had approached the Court contending that same had entered into a Lawful Lease agreement with the Plaintiff. In this regard, the Plaintiff bore the burden of proving its case. However, the Plaintiff failed to tender evidence towards proving its case. 2. Moreover, it was incumbent upon to the Plaintiff to lay before the Court evidence to show that same duly executed Lease agreement; and to prove its execution, in accordance with the Law. This was not one. 3. Pulling the threads together, it is my finding that the Plaintiff’s case was not proved to the requisite Standard. The suit before the Court is therefore a candidate for Dismissal. **Final Orders**: 1. Consequently, and in the premises, the final Orders that commend themselves unto the Court are: 2. ***The Plaintiff’s Suit be and is hereby Dismissed.*** 3. ***Costs of the Suit be and are hereby awarded to the Defendant.*** 4. ***The Costs in terms of Clause [b] shall be agreed upon, and in default, be taxed in the conventional manner.*** 5. It is so Ordered. **DATED, SIGNED AND DELIVERED AT ISIOLO THIS 07TH DAY OF JULY, 2026** **OGUTTU MBOYA, FCIArb; CPM [MTI].** **JUDGE** In the presence of: Court Assistant: Zakayo/ Mukami. Mr. Phillip Wambugu for the Plaintiff. Mr. A. K Mwangi; and Mr. Caleb Mwiti for the 2nd Defendant. Mr. Jarso for the 1st Defendant.