https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3199

**REPUBLIC OF KENYA** **IN TH ENVIRONMENT AND LAND COURT AT THIKA** **ELC APPEAL E032 OF 2025** **HANNAH WANJIRU NJUGUNA ……………..……….........…….. APPELLANT** **VERSUS** **BESTRICE WANGARI GAKERE …………………......……. 1ST RESPONDENT** **MICHAEL NJOROGE GAKERE …....……………………… 2ND RESPONDENT** **JUDGMENT** 1. This appeal emanates from the Judgment of Hon. M.W Kurumbu Principal Magistrate in Thika Magistrate’s Court MCE& L Case No. E056 of 2019), delivered on 19th August 2024. 2. In the said suit, the Appellant filed suit against the Respondents claiming that they had trespassed upon and constructed structures on her land parcel known as L.R Number RUIRU WEST BLOCK 1 (GITHUNGURI) 562 otherwise represented by certificate number B 3058 and ballot number 562 issued by Githunguri Constituency Ranching Company Limited. She sought a permanent injunction against the Respondents, an eviction order and General Damages for trespass as well as costs of the suit. 3. In their very brief Defence, the Respondents stated that they were strangers to the averments contained in the Plaintiff’s suit. 4. After hearing both parties the trial magistrate dismissed the Appellant’s suit on the grounds that she had failed to prove her case to the requisite standard. 5. It is against the said judgment that the Appellant filed the instant appeal citing various Grounds of Appeal as set out in the Memorandum of Appeal. 6. This being a first appeal section 78 of the Civil Procedure Act mandates this court to re-evaluate, re-assess and re-consider the evidence that was adduced before the trial court and arrive at its own findings. 7. In the case of **Selle and Another v Associated Motor Boat Company Ltd & Another (1968) E.A 123,** the court held as follows: *“This court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court is by way of a re-trial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence re-evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”* 8. The same principle has been elaborated in later decisions. In **Ng’ati Farmers’ Co-Operative Society Ltd v Ledidi & 15 Others [2009] KLR 331**, the Court reiterated that: *“An appeal to this Court from a trial by the High Court is by way of re-trial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that, this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witness and should make due allowance in that respect. In particular, this Court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”* 9. The above -mentioned authorities establish a consistent thread. A first appellate court is enjoined to undertake a fresh and independent evaluation of the evidence on record, draw its own conclusions therefrom, and only interfere with the findings of the trial court where it is apparent that such findings are not supported by the evidence, are based on a misapprehension of the material, or are otherwise plainly wrong. At the same time, the Court must remain within the confines of the record and exercise due caution, particularly in matters where the trial court had the advantage of observing the witnesses. 10. Having carefully considered the judgment, the Grounds of Appeal, the entire proceedings as well the submissions of both the Appellant and the Respondent, the following issues arise for determination. 1. *Whether the trial magistrate arrived an erroneous decision as a result of failing to call the directors of Githunguri constituency Ranching Company Limited.* 2. *Whether the trial magistrate overly relied on the evidence of the Respondents.* 3. *Whether the appeal should be allowed.* 11. The Appellant having filed suit against the Respondents, It was incumbent upon her to adduce sufficient evidence to prove her case. As correctly pointed out by the trial magistrate, the Plaintiff ought to have called the Chairman of Githunguri Constituency Ranching Company Limited to produce and explain the documents and relating to the suit property but she failed to do so. Section 108 of the Evidence Act places the burden of proof upon the person who would fail if no evidence was adduced on either side. See the case of **Rentco East Africa Limited v Dominic Mutua Ngonzi (2021) eKLR.** **12.** In the instant case neither the Appellant nor the Respondent has a title deed to the suit property. The Appellant produced documents indicating that her late husband purchased the suit property vide Clearance certificate number B 3053 dated 16.11.2018. **13.** On the other hand, the Respondent produced a certificate number 2090 dated 19th May 1989. The Respondent further established that she has been residing on the suit property since 1989. The Appellant’s husband who died in 2016 was aware that the Respondent and her late husband were residing on the suit property but the never took any action to evict them. **14.** I am satisfied that the trial magistrate carefully considered the evidence of both parties before arriving at her decision. **15.** Based on the foregoing evidence, the trial magistrate correctly arrived at the finding that the Appellant had failed to prove her case on a balance of probabilities. I therefore find no reason to interfere with the judgment of the lower court. 16. Consequently, the appeal is dismissed with costs to the Respondent. **Dated, signed and delivered virtually at Thika this 25th day of May 2026** **J. M ONYANGO** **JUDGE** In the presence of Mr. 1. Mr. Tumu for Mr. Kanyi for the Appellant 2. No appearance for the Respondent Court Assistant: Hinga