https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4180

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA** **ELCLA NO. E003 OF 2025** **BERNARD MURIITHI GICHOBI ………………………………. APPELLANT** **VERSUS** **JOSEPH MAINA MUNENE …………………………………. RESPONDENT** **JUDGMENT** ***(Being an appeal against the Judgment and decree of the Hon. L.W. Kabaria, PM, delivered on 3rd January 2025 in Gichugu MCELC Case No. E004 OF 2021)*** **Introduction:** 1. This appeal arises from the judgment of the **Principal Magistrate's Court** at **Gichugu (Hon. L. W. Kabaria, PM)** delivered on **20th December 2024**, in **MCELC No. E004 of 2021**. In that judgment, the learned trial magistrate found inter alia that the respondent had proved ownership of **Plot No. Lock-Up No. 17, Mushagara Market**; that the appellant had failed to establish any lawful basis for his continued occupation thereof, and consequently ordered his eviction after sixty (60) days together with costs of the suit. **Background and Pleadings***:* 1. The respondent had commenced the suit by a plaint dated 12th February 2021 seeking for primarily an order for the eviction of the appellant from **Plot No. Lock-Up No. 17, Mushagara Market,** together with costs. His case was that the suit premises had originally been allocated to his father, Mauricio Munene Murage, who subsequently transferred the allocation to him with the approval of the County Government of Kirinyaga. He pleaded that although the appellant remained in occupation of the premises, such occupation was without his consent, and despite repeated requests to vacate, the appellant had refused to surrender possession, thereby depriving him of the use and enjoyment of his property. 1. The appellant entered an appearance and filed a statement of defense dated 15th March 2021, and inter alia denied the respondent's claim and asserted that his late mother, Njoki Gichobi, had purchased one-half of **Lock-Up No. 17** from the respondent's father on 12th September 2013 for a consideration of **Kshs. 70,000/=,** of which **Kshs. 50,000/=** had allegedly been paid, leaving a balance payable upon transfer. According to the appellant, his mother died before subdivision and transfer could be completed, and, consequently, one-half of the suit premises belonged to her estate. 2. At the hearing, the respondent testified that his father had never sold the suit premises, but had merely permitted the appellant's late mother to erect a temporary business structure thereon. He maintained that after expressing interest in acquiring the premises, his father caused the allocation to be transferred into his name in 2020. He disputed the authenticity of the agreement relied upon by the appellant, pointing out that it bore an incorrect baptismal name, an incorrect identity card number, and lacked his father's signature. He further testified that although his father had accommodated the appellant's late mother by allowing her to operate a temporary business structure, neither she nor the appellant had ever acquired any proprietary interest in the suit premises. 1. Upon cross-examination, the respondent acknowledged that the appellant and, before him, his late mother had occupied the premises for many years with his father's permission. He also admitted that he had written a demand letter and an eviction notice, though neither document was produced in evidence. He further conceded that the demolition notice dated 2nd September 2020 was addressed to him rather than the appellant, explaining that the error originated with the County Government. 2. The appellant testified that the suit premises had initially belonged to Mauricio Munene Murage, but maintained that his late mother had acquired an interest therein. During cross-examination, however, he conceded that the property remained registered in Mauricio's name until its subsequent transfer to the respondent; that he had no evidence of any application seeking transfer of the allocation to his mother; that his mother had never demanded transfer during her lifetime; and that the agreement relied upon contained discrepancies in the vendor's identity card number and signature, the author of which he could not identify. 3. After the respondent reopened his case, the appellant gave further evidence in which he departed from his pleaded defence. He stated that his late mother had purchased a General Kiosk from one Njiru Mugo and asserted that the General Kiosk was distinct from **Lock-Up No. 17**. He maintained that he had no claim over **Lock-Up No. 17** and contended that the respondent had failed to establish that the premises he occupied formed part of the respondent's property. 4. The respondent likewise reopened his case and called Stephen Wambugu, the County Surveyor, who testified that both parties were claiming the same physical ground, but under different descriptions. According to the surveyor, a General Kiosk and a Lock-Up were fundamentally different County allocations. Whereas a General Kiosk was a temporary, unnumbered, and non-transferable allocation that attracted no ground rent, and could be reallocated by the County Government at any time, a Lock-Up was a permanent, numbered allocation capable of transfer and permanent development upon payment of the requisite ground rent. He further explained that the demolition notice issued by the County Government related to a temporary kiosk standing on **Lock-Up No. 17**. Although he acknowledged that a letter dated 4th July 2022 contained an error by suggesting that a General Kiosk had been transferred, he clarified that the relevant County minutes related only to the addition of parties, and not to any transfer of ownership. The appellant did not attend court to cross-examine the surveyor. 1. Upon evaluating the evidence, the learned trial magistrate found inter alia that the respondent had established ownership of **Lock-Up No. 17;** that the appellant had failed to demonstrate any lawful basis for his continued occupation; that the appellant's evidence was internally inconsistent, noting that, on the one hand, he claimed that his late mother owned part of **Lock-Up No. 17**, while, on the other hand, he asserted that she merely had an interest in a General Kiosk; that the appellant lacked legal capacity to advance any proprietary claim on behalf of his deceased mother's estate in the absence of letters of administration. The court consequently entered judgment for the respondent and granted the eviction orders sought. 2. Aggrieved by that decision, the appellant preferred the present appeal vide the memorandum of appeal dated 17th January 2025, raising five (5) grounds, which for the purpose of this appeal are summarized as follows: 1. That the learned trial magistrate erred by finding that the respondent had proved ownership of and entitlement to exclusive possession of Lock-Up No. 17 despite the evidence on record; 2. That the learned trial magistrate erred by failing to properly evaluate the evidence concerning the identity and location of **Lock-Up No. 17** vis-à-vis the General Kiosk claimed by the appellant, thereby improperly shifting the burden of proof to the appellant; 3. That the learned trial magistrate erred by failing to appreciate the appellant's claim founded upon his late mother's alleged proprietary interest; and * 1. That the learned trial magistrate erred by granting eviction orders notwithstanding the respondent's alleged failure to comply with the mandatory provisions of **Sections 152A to 152F of the Land Act.** 1. The Court directed that the appeal be canvassed through written submissions. **Summary of submissions:** 1. The learned counsel for the appellant filed written submissions dated 19th August 2025. On the first four grounds of appeal, counsel submitted that the learned trial magistrate failed to properly evaluate the evidence regarding the identity and location of the suit property. Counsel argued that the respondent and the appellant were laying claim to different parcels, as the respondent was claiming ownership of **Lock-Up No. 17,** while the appellant's claim related to a General Kiosk allegedly purchased by his late mother, Njoki Gichobi, from one Njiru Mugo. It was submitted that the documentary evidence produced by the appellant, including the County Council minutes and the extract relating to the General Kiosk, established his late mother's interest in the General Kiosk, and demonstrated its location. Counsel contended that the County Surveyor merely distinguished a Lock-Up from a General Kiosk, but failed to ascertain whether the two referred to the same physical location or to establish the location of **Lock-Up No. 17.** It was therefore argued that the trial court improperly relied on the surveyor's evidence while disregarding the appellant's documentary evidence, including the alleged sale agreement and County Council records, which, according to counsel, established an equitable interest in favour of the appellant's late mother. Counsel further submitted that the respondent had failed to discharge the burden of proving his case on a balance of probabilities, and that the trial court impermissibly shifted that burden to the appellant. 1. On the issue of eviction, counsel submitted that the respondent failed to comply with the mandatory requirements of **Section 152E of the Land Act** before instituting the suit. It was argued that the demolition notice relied upon by the respondent was neither addressed to the appellant nor constituted the statutory ninety-day eviction notice contemplated under the **Act**. Relying on the cases of ***Atik Mohamed Omar Atik & 3 Others versus Joseph Katana & Another* (2019) eKLR and *Kenya Assemblies of God Trustees & Another versus Obuya & 5 Others (20241 KEELC 4368 KLR)*,** counsel submitted that compliance with the statutory notice requirements was mandatory, and that the trial court therefore erred in granting eviction orders. Counsel urged the Court to allow the appeal with costs. 1. The learned counsel for the respondent filed written submissions dated 6th October 2025 in opposition to the appeal and submitted that the respondent had established ownership of **Lock-Up No. 17** through the approved transfer from his father, and that the appellant's occupation of the premises was initially by permission granted to his late mother. Counsel argued that the appellant's own pleadings and evidence acknowledged occupation of the suit property, and that his subsequent assertion that he occupied a distinct General Kiosk was inconsistent with his pleaded case. Counsel further submitted that the appellant's continued payment of ground rent and his receipt of the County Government's demolition notice were consistent only with occupation of **Lock-Up No. 17,** and undermined his contention that he occupied a different property. Counsel therefore maintained that the learned trial magistrate correctly rejected the appellant's defence. 1. On the issue of eviction, counsel submitted that, having proved ownership of the suit premises, the respondent was entitled to protection of his proprietary rights, and to recover possession from an unlawful occupier. Reliance was placed on **Sections 152A, 152E and 152F of the Land Act,** as well as the case of ***Julius L. Marten versus Caleb Arap Rotich (2021) keelc 195 (klr)*,** for the proposition that the respondent was entitled to seek eviction through the court process. Counsel further submitted that the appellant lacked the requisite locus standi to assert any proprietary rights allegedly vested in his deceased mother's estate, in the absence of a grant of representation. The Court was accordingly urged to dismiss the appeal with costs. 1. The issues arising in this appeal for the court’s determinations are as follows: 1. *Whether the respondent proved, on a balance of probabilities, that he was entitled to exclusive possession of* ***Plot No. Lock-Up No. 17, Mushagara;*** 2. *Whether the appellant had the requisite legal capacity to assert the proprietary interest allegedly vested in his deceased mother's estate.* 3. *Whether the learned trial magistrate properly evaluated the evidence relating to the identity and location of the suit premises* 4. *Whether the eviction order was properly granted in light of the provisions of* ***Sections 152A to 152F of the Land Act.*** 2. Having carefully considered the grounds on the memorandum of appeal, record of appeal, the learned counsel’s submissions, the superior court decisions cited, the court has come to the following findings: 1. This being a first appeal, this Court is enjoined to reconsider, re-evaluate, and re-analyze the evidence tendered before the trial court, and draw its own independent conclusions. In undertaking that exercise, however, the Court must bear in mind that it neither saw nor heard the witnesses testify and should therefore accord due allowance to the advantage enjoyed by the trial court in assessing the demeanour and credibility of those witnesses. An appellate court will not ordinarily interfere with findings of fact unless it is demonstrated that the trial court failed to take into account particular circumstances or probabilities, misapprehended the evidence, applied wrong principles of law, or reached findings that are plainly unsupported by the evidence on record. The duty of a first appellate court was succinctly stated in the case of ***Selle & Another versus Associated Motor Boat Co. Ltd & Others [1968] EA 123,*** where the Court held inter alia that a first appeal is by way of retrial and that the appellate court is not bound necessarily to follow the trial court's findings of fact if it appears that the trial court failed to appreciate the weight of the evidence or acted on wrong principles. * 1. The first four grounds of appeal may conveniently be considered together, as they challenge the trial court's findings regarding ownership of the suit property, its identity and location, and the burden of proof. The law is settled that the legal burden of proof rests upon the party who asserts the existence of a fact. **Sections 107 and 109 of the Evidence Act, Chapter 80 of Laws of Kenya**, places upon a claimant the obligation of establishing, on a balance of probabilities, the facts upon which his claim is founded. That legal burden remains throughout the proceedings, although an evidential burden may shift depending on the state of the evidence adduced. In the present case, the respondent's claim was straightforward. He pleaded that **Lock-Up No. 17, Mushagara**, had initially been allocated to his father, Mauricio Munene Murage, who subsequently transferred the allocation to him with the approval of the County Government of Kirinyaga. He further asserted that although the appellant had initially occupied the premises through the permission granted to his late mother, he had declined to vacate after that permission was withdrawn. * 1. To support that claim, the respondent produced the County Government records evidencing the transfer of **Lock-Up No. 17** into his name and testified that his father had never sold the property to the appellant's late mother. He challenged the authenticity of the sale agreement relied upon by the appellant, pointing to material discrepancies in the alleged vendor's name, identity card number, and signature. His evidence was that the appellant's late mother had merely been permitted to erect a temporary business structure on the premises pending future development by his father. 2. The appellant, on the other hand, did not present a consistent defence. In his statement of defence, he pleaded that his late mother had purchased one-half of **Lock-Up No. 17** from the respondent's father in 2013, and that transfer had not been completed before her demise. That pleading was an express acknowledgment that the property in dispute was indeed **Lock-Up No. 17**. However, during the reopened hearing, the appellant departed from that position altogether. He testified that his late mother had instead purchased a General Kiosk from one Njiru Mugo and maintained that the General Kiosk was distinct from **Lock-Up No. 17**. He went further and expressly stated that he had no claim over **Lock-Up No. 17**, contending that the respondent had failed to demonstrate that the premises he occupied formed part of that lock-up. * 1. The significance of that departure cannot be understated. A party is bound by his pleadings, and although evidence may explain or clarify pleaded facts, it cannot be used to introduce a substantially different case. The appellant's pleaded case was founded upon an alleged purchase of one-half of **Lock-Up No. 17** from the respondent's father. His subsequent evidence that he occupied an entirely different property described as a General Kiosk was not merely an elaboration of that pleading but a material departure from it. The learned trial magistrate was therefore entitled to evaluate the inconsistency in determining the credibility and probative value of the appellant's evidence. 2. The inconsistency was further compounded by the appellant's own admissions, where during cross-examination, he inter alia acknowledged that **Lock-Up No. 17** had always remained in the name of Mauricio Munene Murage, until its transfer to the respondent; that his late mother never obtained a transfer of the property during her lifetime; that he had no evidence of any application seeking such transfer before the County Council; that the alleged sale agreement contained discrepancies in the vendor's identity card number and signature; and that he could not identify either the author of the agreement or one of the persons appearing therein as a witness. Those admissions substantially weakened the evidential value of the appellant's claim that his late mother had acquired a proprietary interest in the suit property. 3. The appellant nevertheless faults the trial court for relying on the County Surveyor's evidence, contending that the surveyor merely distinguished a Lock-Up from a General Kiosk without establishing that both referred to the same physical location. That contention is not based on the availed evidence and I am unable to agree with it. 4. The surveyor testified that, based on the County Government records available to him, both parties were claiming the same physical ground, albeit under different descriptions. He explained the distinction between a General Kiosk and a Lock-Up, stating that whereas a General Kiosk was a temporary, unnumbered allocation incapable of transfer and not recorded for the purposes of ground rent, a Lock-Up was a permanent, numbered allocation capable of transfer and of permanent development. He further testified that the demolition notice issued by the County Government related to the temporary kiosk standing on **Lock-Up No. 17**, and clarified the apparent error in the County letter dated 4th July 2022, explaining that the relevant County minutes concerned the addition of parties and not the transfer of ownership. * 1. Significantly, the appellant did not attend court to cross-examine the surveyor. Consequently, the surveyor's explanation of the County records and the distinction between the two forms of allocation remained unchallenged. While uncontroverted evidence is not accepted mechanically, its evidential weight is inevitably enhanced where the opposing party elects not to test it through cross-examination or produce contrary expert evidence. In the circumstances of this case, the learned trial magistrate cannot be faulted for attaching considerable weight to that evidence. 2. The appellant also contended that the respondent failed to prove the precise location of **Lock-Up No. 17**. That argument overlooks the totality of the evidence. The respondent produced documentary evidence demonstrating the allocation of **Lock-Up No. 17,** while the surveyor explained that the temporary General Kiosk occupied by the appellant stood on that very lock-up. Against that evidence, the appellant offered no survey evidence, map, or County records demonstrating that the General Kiosk occupied a different parcel of land. His assertion that the two were separate locations, therefore, remained unsupported by any evidence. 3. I am unable to agree with the submission that the learned trial magistrate shifted the burden of proof to the appellant. The respondent discharged his initial legal burden by producing evidence of the allocation and transfer of **Lock-Up No. 17**, and by explaining the circumstances under which the appellant's late mother came into occupation. Once the respondent established his claim on prima facie basis, an evidential burden arose requiring the appellant to substantiate his competing claim. The learned trial magistrate did not require the appellant to prove the respondent's case, but rather made a finding that the appellant's evidence had failed to displace it. That conclusion was entirely consistent with the principles governing the burden of proof under the **Evidence Act.** 4. Upon my own independent evaluation of the entire pleadings and evidence record, I am satisfied that the respondent proved, on a balance of probabilities, that he was the person entitled to the possession of **Lock-Up No. 17, Mushagara**. I am equally satisfied that the learned trial magistrate properly analyzed the evidence concerning the identity of the suit premises, and cannot be faulted for rejecting the appellant's inconsistent and unsupported defense. Consequently, the first four grounds of appeal fail. 5. There is no dispute that the appellant's defence was premised, in part, on the assertion that his late mother had acquired an interest in the suit property before her death. However, there is no evidence that the appellant had obtained a grant of representation in respect of his late mother’s estate. The respondent's suit was not brought against the appellant in any representative capacity. Rather, he was sued in his personal capacity as the person alleged to be unlawfully occupying the suit premises. Likewise, the appellant did not file a counterclaim seeking to enforce any proprietary or contractual rights on behalf of his late mother's estate. His case was simply that his occupation was lawful by reason of the interest allegedly acquired by his late mother. In those circumstances, I do not consider the question of a grant of representation to be determinative of the dispute before the trial court. 6. The real issue was whether the evidence adduced by the appellant established a lawful basis for his continued occupation of the suit premises. As already found under the first issue above, the appellant failed to establish that the alleged transaction conferred any legally enforceable interest capable of defeating the respondent's claim for possession. Accordingly, while the trial court raised the issue of a standing when it observed that *“the defendant emerges as not having a stand as to the capacity in which he is occupying the property…”* and reiterated by the respondent on appeal, I find that the appeal does not turn on that question. The respondent's claim succeeded because the appellant failed to establish a lawful entitlement to remain in occupation of the suit premises, and not because he lacked capacity to defend the suit. 7. The appellant's final ground of appeal challenges the eviction order on the basis that the respondent did not comply with the mandatory provisions of ***Section 152E* of the Land Act** before instituting the suit. It was submitted that although the respondent referred to a demand letter and an eviction notice during his testimony, neither document was produced in evidence, and the demolition notice relied upon was admittedly addressed to the respondent rather than the appellant. Consequently, the appellant argued that the suit was premature and that the trial court ought not to have granted an eviction order. The respondent, on the other hand, submitted that, having established ownership of the suit premises, he was entitled to seek recovery of possession through court proceedings. ***Section 152E* of the Land Act** requires a proprietor of private land who seeks to remove a person alleged to be in unlawful occupation to serve that person with a written notice of not less than three months before the intended eviction. The provision further prescribes the contents of the notice and requires service upon the relevant administrative and police authorities. The purpose of the provision is to ensure that an occupier is afforded adequate notice and an opportunity to seek legal redress before being removed from the land. * 1. From the record, the respondent admitted during cross-examination that he had issued both a demand letter and an eviction notice, but did not produce either document before the trial court. He also acknowledged that the demolition notice dated 2nd September 2020, which formed part of his documentary evidence, was addressed to him and not to the appellant, which error he attributed that on the part of the County Government. On the evidence presented, therefore, there was no proof that the appellant had been served with the statutory notice contemplated under **Section 152E***.* That omission however, does not necessarily invalidate the entire proceedings. * 1. The respondent approached the court to establish his proprietary rights and to seek a lawful order for recovery of possession. The appellant was served with the suit documents, entered an appearance, filed a defence, participated fully in the proceedings, testified, recalled witnesses, challenged the respondent's evidence and prosecuted the present appeal. The dispute over ownership and occupation was therefore determined through a judicial process that fully accorded the appellant the right to be heard. In my view, the absence of proof of a statutory notice under **Section 152E** did not disentitle the respondent from seeking the court's determination of his proprietary rights or from obtaining a decree for recovery of possession of the suit property after establishing his claim. Rather, the statutory safeguards under **Sections 152E and 152F** are intended to regulate the manner in which an eviction is carried out to ensure that it is humane, orderly, and consistent with the constitutional protections of dignity, fair administrative action, and due process. The court's decree does not dispense with those statutory obligations, and any eviction undertaken in execution thereof must still comply with the applicable provisions of the **Land Act**. * 1. In the present case, the learned trial magistrate did not direct that the appellant be evicted forthwith. Instead, the court suspended the eviction for sixty days. Although that period is not a substitute for compliance with the statutory procedure where it is applicable, I am not persuaded that the omission complained of, rendered the judgment itself erroneous or deprived the court of jurisdiction to determine the parties' competing proprietary claims. Accordingly, I find no basis for interfering with the trial court's decision on this ground. The respondent having established his entitlement to possession of the suit premises, the order for eviction was properly issued, subject to compliance with the applicable provisions of the **Land Act** at the stage of its enforcement. 2. Therefore, having independently re-evaluated the pleadings and entire evidence on record, I am satisfied that the learned trial magistrate properly directed herself on both the facts and the law, in finding that the respondent had established, on a balance of probabilities, that he was the lawful allottee and person entitled to possession of **Plot No. Lock-Up No. 17**, **Mushagara.** The appellant failed to establish any legally enforceable proprietary interest in the suit premises and could not, in the absence of a grant of representation, competently rely upon rights allegedly vested in his deceased mother's estate. Further, I find no basis for disturbing the order of eviction, save to emphasize that its execution must be undertaken in accordance with the applicable provisions of the **Land Act**. Accordingly, I find and hold that the appeal lacks merit * 1. In view of the provisions in **Section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya** that costs follow the event unless where for good reasons the court orders otherwise, and there being no such reasonable cause in this matter, the appellant will meet the costs of the respondent. 1. Having arrived at the foregoing determinations in this appeal, the court finds and orders as follows: 1. **That the appeal is without merit and is dismissed in its entirety.** 2. **That the learned trial magistrate judgement of 3rd January 2025, and the decree arising therefrom, is hereby confirmed.** 3. **The appellant will pay the respondent’s costs.** Orders accordingly. **DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 8TH DAY OF JULY 2026** **S. M. Kibunja** **ELC JUDGE** **In the presence of:** Appellant – Ms Ndwiga for Magee Respondent – Mr. Mwagiru Kinyua/Charles - Court Assistant **S. M. Kibunja** **ELC JUDGE**