https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4236

Kilo v Jarso alias Halima Abala Doge (Environment and Land Appeal E003 of 2025) [2026] KEELC 4236 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEELC 4236 (KLR) Republic of Kenya In the Environment and Land Court at Garissa Environment and Land Appeal E003 of 2025 RO Omondi, J July 9, 2026 Between Hassan Malio Kilo Appellant and Halima Ilesa Jarso Alias "Halima Abala Doge Respondent (An appeal against the judgment and decree issued by the Principal Magistrate, Honorable Jackson Omwange, in Garissa CMELC No. E006 of 2023, dated March 26, 2025) Judgment A. Introduction 1.This judgment stems from an appeal against the judgment and decree issued by the Principal Magistrate, Honorable Jackson Omwange, in Garissa CMELC No. E006 of 2023, dated March 26, 2025. In this case, the Appellant served as the Defendant and Counterclaimant, while the Respondent was the Plaintiff. 2.The Respondent invoked the lower Court’s jurisdiction by way of a Plaint dated May 25, 2023, seeking two (2) substantive reliefs:a.A declaration that the Plaintiff is the rightful owner of all that property known (sic) Commercial Plot TRCG/MDG/C/1415A situated in Madogo shopping centre, Tana River County measuring 50*60 (suit land).b.A Permanent injunction restraining the Defendant by himself, though (sic) his family members, servants, agents or persons acting on his instructions from encroaching, entering, fencing, clearing, vegetation or in any way interfering with the Plaintiff’s quiet possession of all that property known as Commercial plot TRCG/MDG/C/1415A situated in Madogo shopping centre, Tana River County measuring 50*60 (suit land). 3.It was the Respondent’s case that she purchased the suit property from the legal owner, Rupiya Korbesa Omar, on November 16, 2015, for Kshs 60,000/-, and that she executed a duly witnessed sale agreement for the purchase. 4.In response, the Appellant filed a Defence and Counterclaim dated June 13, 2023. The Appellant essentially refuted the claims in the Respondent’s Plaint and asserted that Plot TRCG/MDG/C/1415A is within his plot No. TRCC/J28/VOL.VIII/(577), located in the Madogo Town Development Plan, Zone 52, measuring 100 ft by 50 ft, which was allocated to him by the defunct County Council of Tana River on June 26, 2001. Consequently, he counterclaimed for an order that:a.This honorable court be pleased to grant a permanent injunction restraining the Plaintiff by herself, through her family members, servants, agents or persons acting on her instructions from encroaching, entering, fencing, clearing vegetation, constructing or any way interfering with all that property known as TRCC/J28/VOL.VIII/(577) located at Madogo zone 52 of the Madogo Town Development Plan measuring 100ft by 50ft in Tana River County belonging to the defendant. 5.The trial court, after hearing the Appellant and the Respondent, together with their witnesses, determined that “the Defendant did not adequately prove that the Plaintiff’s plot lies within his” and further that “the Plaintiff has proved her case on a balance of probabilities, whereas the Defendant has not proved his counterclaim.” 6.Consequently, the learned Principal Magistrate declared the Respondent the rightful owner of Plot No. TRCG/MDG/C/1415A and issued a permanent injunction restraining the Appellant from interfering with the Respondent’s quiet possession and ownership of the said plot. Additionally, the learned Principal Magistrate dismissed the Appellant’s Counterclaim with costs to the Respondent. 7.Aggrieved and dissatisfied with the judgment and decree of the learned Principal Magistrate, the Appellant filed a Memorandum of Appeal dated April 25, 2025, appealing the decision on the following five (5) grounds.1.The Learned trial Magistrate erred both in Law and in fact in failing to appreciate that the Appellant herein acquired the suit property in 2001 measuring 50ft by 100ft and it defeats logic for the respondent to acquire part of the same land measuring 50ft by 60ft without proper documentation from the ministry of lands.2.The Learned trial Magistrate erred both in Law and in fact in failing to appreciate that when the court is faced with two probabilities, it can only decide the case on a balance of probability, if there is evidence to show that one probability was more probable than the other and in this case the Appellant herein probability (sic) was more probable.3.The learned trial magistrate erred both in law and in fact when he failed to consider the fact that it is only the Appellant herein who called officers from ministry of lands and physical planning and community conflict and land dispute resolution committee headed by ward administrator who are on the ground and know everything on the ground.4.That the Learned Principal Magistrate erred in fact and in law in making a finding that the Respondent herein proved her case on the balance of probability despite abundant reasons and/or reasons to the contrary presented before him by the Appellant and his witnesses and documentations presented.5.The Learned trial Magistrate erred both in fact and in law in failing to apply the applicable law before him, instead relying on irrelevant decisions such as Giella v Cosman (sic) Brown that only apply in an interlocutory application. 6.In his Memorandum of Appeal, the Appellant sought the following two (2) reliefs:i.This appeal be allowed with costs and;ii.The Judgment delivered by the Principal Magistrate on the 26th March, 2025 be set aside and be substituted with another order dismissing the Respondent (sic) plaint dated 25th May 2023. 7.The appeal came before Gicheru J for directions on November 26, 2025, who directed the Appellant to file and serve a paginated hard copy of the Record of Appeal within 30 days. 8.The matter was mentioned before Kibunja J on February 24, 2026, to confirm compliance with the directions of Gicheru J dated November 26, 2025. The parties confirmed that the Record of Appeal had been filed and served, and Kibunja J directed that the Appeal be canvassed by way of written submissions. B. Parties Submissions Appellant’s Submissions 9.The Appellant filed and served written submissions dated March 10, 2026, together with a list of authorities dated the same day. He restated the grounds of appeal set out in the Memorandum of appeal in his submissions and framed two issues for determination, to wit, whether the appeal is meritorious and who bears the cost of the appeal. Grounds 1 through 4 of the Memorandum of Appeal were consolidated into the first issue, whereas the Appellant did not submit on the fifth ground. i. Whether the Appeal is Meritorious 10.On whether the appeal is meritorious, the Appellant submitted that the burden was on the Respondent to prove her case on a balance of probabilities and that she failed to do so. The Appellant further asserted that the Respondent never called any officer from the Department of Lands to substantiate her position, yet the learned Principal Magistrate entered judgment in her favor. 11.Comparatively, the Appellant asserted that he presented two witnesses who affirmed his ownership of the suit property. Additionally, three other witnesses, comprising two officers from the office of the Ward Administrator of Madogo Ward and one officer from the Department of Lands and Physical Planning, attested to the authenticity of the documents submitted by the Appellant. 12.The Appellant relied on Kirugi & Another v Kabiya & 3 Others [1987] KLR 347 and Kanyungu Njogu v Daniel Kimani Maingi [2000] eKLR to advance the position that, in civil cases, a plaintiff must prove his claim against the Defendant on a balance of probabilities. The Appellant further relied on the notorious case of Selle & Another v Associated Motorboat Co. Ltd 1968 EA 123 to urge the court to reassess and reconsider the evidence on record and reach its own conclusion. 13.In view of the foregoing, the Appellant implored the court to find that his appeal is merited and to award him costs. Respondent’s Submissions 14.In response to the Appellant’s submissions, the Respondent filed and served submissions dated March 20, 2026, together with a list of authorities dated the same day. The Respondent consolidated the grounds in the Memorandum of Appeal into three issues and invited the court to determine whether the Appeal is meritorious, whether the trial court erred in law and fact, and who should bear the costs of the Appeal. i. Whether the Appeal is Meritorious 15.The Respondent submitted that she had adequately discharged the legal burden of proof and relied on Kirugi & Another v Kabiya & 3 Others [1987] KLR 347 for the proposition that the burden is always on the Plaintiff to prove his case on a balance of probabilities and that she had discharged the burden placed upon her by producing documentary evidence establishing her interest in the suit property. 16.In response to the Appellant’s assertion that the trial court failed to find the Appellant’s case as more probable than that of the Respondent, the Respondent cited the case of Place Investment Limited v Geoffrey Kariuki Mwenda & Another [2015] eKLR and argued that denial alone is not sufficient to rebut a claim; the Appellant must present evidence to substantiate his case on a solid evidentiary basis. 17.The Respondent countered the Appellant's assertion that he had called government officials in support of his claim to the suit property by submitting that the officials' evidence was not based on any pleadings filed by the Appellant in court. To support this assertion, she relied on the case of Independent Electoral Boundaries Commission and Another v Stephen Mutinda Mule & 3 Others [2014] eKLR. ii. Whether the Trial Court Erred in Law and Fact 18.The Respondent submitted that there was no basis to interfere with the trial court’s finding because the Appellant failed to demonstrate that the learned Principal Magistrate misapprehended the evidence, considered irrelevant matters, and failed to consider relevant evidence. 19.She relied on the case of United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd [1985] KLR 898 to argue that “an appellate court will not interfere with findings of fact unless they are based on no evidence or wrong principles.” 20.Concerning the allegation that the learned trial Magistrate erred in law and fact by failing to apply the pertinent legal provisions and erroneously relying on the decision of Giella v Cassman Brown, the Respondent contended that the final judgment was founded upon substantive evidence rather than on the principles governing the grant of an interlocutory injunction. 21.Consequently, on the authority of Mbogo & Another v Shah [1968] EA 93, the Respondent invited this court not to interfere with the exercise of discretion by the learned Principal Magistrate because the Appellant had not demonstrated that the court misdirected itself or acted on wrong principles. iii. Who Should Bear the Cost of the Appeal 22.In the upshot, the Respondent asked the court to dismiss the Appeal in its entirety, with costs, and to uphold the trial court's finding. C. Issues For Determination 23.Having comprehensively reviewed the Record of Appeal, and more specifically so, the five grounds of appeal explicit in the Memorandum of Appeal, the pleadings filed by parties before the trial court, documentary evidence and witness testimony, the Judgment of the court, and the submissions of the parties, the following two issues emerge for determination:i.Whether the learned Principal Magistrate erred in finding that the Respondent proved her case to the required standard?ii.Who should bear the costs of the appeal? D. Determination And Analysis Applicable Principles 24.This is a first appeal, and the duty of this court is now a well-trodden path, repeatedly restated in a plethora of authorities that have gained notoriety. To this end, the locus classicus, Selle & Another v Associated Motorboat Co. Ltd 1968 EA 123 readily comes to mind. Sir Clement de Lestang V-P at page 126, pertinently observed:…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 witnesses 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 on the demeanor of a witness is inconsistent with the evidence in the case generally. 25.In Peters v Sunday Post Ltd [1958] EA 424, Sir Kenneth O’Connor, P., articulated the applicable principles on a first appeal as follows:...it is strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon the evidence should stand. But this is a jurisdiction which should be exercised with caution. It is not enough that the appellate court might itself have come to a different conclusion... 26.These instructive and hallowed principles have been elaborated in many other cases, including Abok James Odera T/A A. J Odera & Company Advocates vs J. P. Machira T/A Machira & Company Advocates [2013] eKLR and Mitchell Cotts v Omar (Civil Appeal 76 of 2017) [2023] KEHC 23424 (KLR.) 27.Given its obligation on a first appeal, as explained above, this court now moves to the two issues outlined herein. i. Whether the learned Principal Magistrate erred in finding that the Respondent Proved Her Case to the Required Standard? 28.As already indicated, the Respondent was the Plaintiff in the claim before the trial court. In paragraph six of her Plaint, she avers that on or about April 2023, “the Defendants without any color of right attempted to move into the suit land claiming ownership and proceeded to start construction on the said parcel of land”. 29.She avers in paragraph eight of her Plaint that a month later, sometime in May 2023, the Appellant again accessed the suit property and “attempted to commence construction on the suit land by digging up a foundation and bring (sic) other building material such as sand and timber.” 30.To substantiate her ownership of the suit property, the Respondent filed a List and Bundle of Documents dated May 25, 2023, containing four documents that appear between pages 19 – 23 of the Record of Appeal. She produced and relied on these documents. 31.What story do these documents tell? Exhibit 1 on the list is a letter dated January 1, 2016, from the Tana River County Government confirming that the unsurveyed commercial Plot TRCG/MDG/C/1415A, measuring 60 ft by 50 ft, is registered in the Respondent’s name. It acknowledges receipt of payments from the Respondent for plot applications, registration fees, and rental charges. 32.Exhibit 2 is a payment receipt dated January 16, 2001, in the sum of Kshs 16,000/- for application registration, possibly from the County Government, since some parts were illegible. Exhibit 3 on the aforesaid list is a Sale Agreement dated January 16, 2015, executed between the Plaintiff and one Rupiya Korbesa Omar. It was witnessed, among others, by one Abubakar S. Garacha, as the seller’s witness, and who also testified in support of the Plaintiff’s case as PW5. This agreement discloses that the Respondent paid Kshs 60,000/- as consideration for the purchase of the suit property measuring 50 X 60ft. 33.Exhibit four, appearing on page 23 of the Respondent’s list of documents, is a letter dated June 26, 2001, from the defunct County Council of Tana River, addressed to the Appellant. Though difficult to read, the letter, in substance, approves the Appellant’s application for a plot in zone 52 of the Madogo Town Development Plan, measuring 50 ft by 100 ft, and acknowledges receipt of application and registration fees. 34.Curiously, though, the letter dated June 26, 2001, is qualified by way of an interlineation on its face dated February 2, 2002, in the words “The plot was pegged on 15/02/2002 But the size of the plot measures (40 X 60 feets)”. 35.This interlineation is signed by an undisclosed official. I find the date of February 2, 2002, in the interlineation, on which the plot was “pegged,” to be material because it was made only eight (8) months after June 26, 2001, when the Appellant is said to have acquired his portion. This was about 14 years prior to the Respondent’s interest in the suit property, which she traces to the Sale Agreement dated November 16, 2015. 36.This interlineation has a bearing in answering the question whether the learned Principal Magistrate erred in finding that the Respondent proved her case to the required standard. 37.This is because at this stage, the court is persuaded that the entire dispute between the Appellant and the Respondent is more about boundary and less about title to the specific portions each party claims. The dispute turns on the plot size to which either party is ultimately entitled, and this case rises or falls with the interpretation of the interlineation in the letter dated June 26, 2001, addressed to the Appellant. 38.As becomes clear in this analysis, the letter dated June 26, 2001, is not contested. The Appellant produced the selfsame letter dated June 26, 2001, as Exhibit 1 on page 56 of his list of documents dated June 13, 2023, which contained 9 other exhibits. The letter produced by the Appellant, though less legible than the copy submitted by the Respondent, bore the aforementioned interlineation. 39.In consequence, the letter dated June 26, 2001 grants the Appellant a plot measuring 50 ft by 100 ft in the first instance, but the interlineation thereon, claws back that grant and limits the plot size granted to the Appellant to “40ft X 60ft,” which I believe is an erroneous reference to 40ft X 50ft, the portion that logically remains, assuming that the portion of 50ft X 60ft claimed by the Respondent is excised from total plot size of 50ft X 100ft between the parties. 40.An analysis of the letter of June 26, 2001, discloses an inherent conflict within it in that the typed text grants the Appellant a plot measuring 50 ft by 100 ft on the one hand, whereas the handwritten words “The plot was pegged on 15/02/2002 But (sic) the size of the plot measures (40 X 60 feets)” takes away that grant by limiting the size of the Appellant’s plot. 41.Was it the intention of the officials who registered plot No. TRCC/J28/VOL.VIII/(577) in favor of the Appellant to circumscribe the plot size to 40ft X 50ft instead of the initial 50ft X 100ft indicated in the letter dated June 26, 2001? 42.To resolve the conflict between the printed text and the handwritten words, the Latin maxim scriptura manualis praevalet impresse (handwriting prevails over printing) is instructive. The Supreme Court of India, in D.M. K Abraham & Co. v State of Kerala & Anor, 6 MANU/SC/1146/2009, Ashvini Kakde 8/27, observed in this respect as follows:“10.If a contract consists of a printed form with cyclostyled amendments, typed additions and deletions and handwritten corrections, an endeavour shall be made to give effect to all the provisions. However, in the event of apparent or irreconcilable inconsistency, the following rules of construction will normally apply :(i)The cyclostyled amendments will prevail over the printed terms;(ii)The type-written additions will prevail over the printed terms and cyclostyled amendments;(iii)Hand written corrections will prevail over the printed terms, cyclostyled amendments and typed written additions. The above rules have evolved from the well known maxim of construction that "written, stamped or typed additions, when inconsistent with the printed terms, would normally prevail over the printed terms" and proceeds on the assumption that the printed form contained the original terms, and changes thereto were incorporated by the cyclostyled amendments, followed by changes by type-written additions and lastly the hand written additions. The logical explanation for such assumption is this: The printed form contains standardized terms to suit all contracts and situations. It is not drafted with reference to the special features of a specific contract. When such a standard form is used with reference to a specific contract, it becomes necessary to modify the standard/general terms by making additions/alterations/deletions, to provide for the special features of that contract. This is done either by way of an attachment of an annexure to the standard printed form, incorporating the changes, or by carrying out the required additions/alterations/deletions in the standard form itself. Such additions/alterations/deletions are done by typing/stamping/hand. We may refer to the following oft-quoted enunciation of the legal position by Lord Ellenborough in Robertson v. French [1803- 13] All ER Rep.350 with reference to printed form of contract with hand-written additions :(emphasis mine)....... that the words super added in writing are entitled, nevertheless, if there should be any reasonable doubt on the sense and meaning of the whole, to have a greater effect attributed to them than to the printed words, inasmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning and the printed words are a general formula adapted equally to their case and that of all other contracting parties on similar occasions and subjects". 43.The authority of the above cases is also amplified in Chitty on Contracts1 as follows:1H.G. Beale (ed), Chitty on Contracts, vol 1 (28th edn, Sweet & Maxwell 1999) para 12-068Printed and written clauses. Where the contract is contained in a printed form with writing superadded, the written words, if there should be any reasonable doubt about the sense and meaning of the whole, are to have greater effect attributed to them than the printed words, inasmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning, and printed words are a general formula adapted equally to their case and that all other contracting parties upon similar occasions and subject. Nevertheless, it is open to the parties to stipulate in their printed conditions of contract that written provisions appended to the printed form are not to override, modify or affect in any way the application or interpretation of that which is contained in the printed conditions, and effect must then be given to such a stipulation even though this is contrary to the ordinary rule (citations omitted). 44.I find that the import of the handwritten interlineation in the letter dated June 26, 2001, from the defunct County Council of Tana River is that it allocated the Appellant plot No. TRCC/J28/VOL.VIII/ (577), measuring only 40 ft X 50 ft, not 100 ft X 50 ft. 45.I carefully examined and analyzed other documents produced by the Appellant on his list dated June 13, 2023, which contained 9 exhibits. Exhibit 1 was the letter from the defunct County Council of Tana River dated June 26, 2001, which I have addressed at great length. Exhibits 2, 3, 4, 5, 6, and 7 are largely irrelevant to the question of who is entitled to what size of which plot. I will therefore refrain from delving into them. Similarly, the Appellant filed a supplementary list of documents dated September 12, 2023, containing one exhibit that was not material to the question at hand. 46.Exhibits 8 and 9 on the Appellant’s list, dated June 13, 2023, are, however, material. Exhibit 8 is a letter dated January 7, 2020, written by the Ward Administrator, Madogo, who attempted, in my view, but failed, to resolve the boundary dispute between the Appellant and the Respondent. It details a site visit undertaken to confirm the dimensions of both plots with a view to resolving the dispute. The letter makes the following pertinent observations:After the site visit we found that Hassan Malio Kilo the original measurement were 100fts by 50 fts but the new measurements were 97fts by 58fts, while Halima Abala Doge , the original measurement were 60fts by 50fts but the new measurement shows 48fts by 60fts. The new measurements were not showing the exact measurement from the original measurement. 47.The letter notably fails to explain the variance in plot size purportedly discovered during the site visit. Further, it does not explain who undertook the plot measurements or the level of their expertise. It, however, makes the following significant observations:After liasing (sic) the office of the land physical planning and Madogo public health office we got the information that Hassan malio kilo Ref;TRCC/J.28/VOL.VIII(577) file is in their record file system neighbouring Abdig Mohammed Issak Ref;TRCC/J.28.VOL.VIII(576).The Office of land physical planning reject the reference the reference given to Halima Abala Doge state that Ref:TRCG/MDG/C/1415A does not exist in the land physical planning reference file office.ConclusionThe office concluded that:Mr. Hassan Malio Kilo being the only owner of the said plot which measures 100ft by 50ft with a legal document from the office of the Council since 26th June 2001 and the office of the land physical planning recognize on same matter. 48.The correspondence from the Ward Administrator dated 7 January 2020 is hearsay because it purports to convey a finding from the Madogo land and physical planning office, even though the physical land planner did not testify in the case. More fundamentally, however, the letter is contradictory and contains inconsistencies. It acknowledges the existence of two plots and assigns specific measurements to each, despite potential inaccuracies in those measurements. Nonetheless, in terms of size, it ultimately grants both plots to the Appellant and determines that the Respondent’s plot does not exist. 49.I am neither persuaded nor bound by the finding of the Ward Administrator’s letter, and I find that the letter serves more to obscure rather than clarify the question of plot size. Consequently, it cannot serve as a basis for concluding that the Appellant proved his entitlement to a plot measuring 50 ft by 100 ft. 50.Exhibit 9, in the Appellant’s list of documents, is material to explaining how the Appellant’s plot may have gone from 100 ft X 50 ft to 40 ft X 50 ft. It consists of minutes of resolutions from the Community Conflict and Resolution Committee, which heard both the Appellant and the Respondent on January 2, 2023, and May 22, 2023. 51.The minutes are accompanied by a report of the committee’s findings dated May 22, 2023. All these documents appear between pages 64 and 71 of the Record of Appeal. The report reiterates the Ward Administrator’s letter dated January 7, 2020, previously referred to in my analysis, and concludes that the Appellant’s documents were genuine. 52.The minutes on page 65 of the record highlight the testimony of one Mr. Omar Gasigat, who stated that he is the owner of plot No. TRCC/J. 28. VOL.VIII(576), measuring 100 ft X 50 ft, neighboring the Appellant’s plot No. TRCC/J. 28. VOL.VIII(577). He also stated that his plot and the Appellant’s plot both have the same dimensions and were registered on the same date, June 26, 2001. 53.The explanation on how the Appellant’s plot went from 100 ft X 50 ft to 40 ft X 50 ft, seems to have emerged in the minutes of the Community Conflict and Resolution Committee, where at page 65 of the record, the Appellant explained that his troubles started in 2002 when he was away in Mandera for work as a long-distance driver, and he heard that PW5 before the trial court (Abubakar Salat Goracha) had “cutted (sic) his plot 60 ft X 40 ft and given to Ismail Korbesa)”. Upon his return in 2016, he found the plot fenced. 54.Mr. Omar Gasigat, the Appellant’s aforesaid neighbor, told the committee that the Appellant complained to him that his plot had been reduced to 40 ft X 50 ft and the rest given to another person (Rupia Korbesa, aka Ismail Korbesa), who later sold it to the Respondent. 55.I have held that whereas the Appellant was initially given a plot measuring 100 ft X 50 ft, it was later reduced to 40 ft X 50 ft by reason of the handwritten interlineation on the letter dated June 26, 2001, to the effect that “The plot was pegged on 15/02/2002, but the size of the plot measures (40 X 60 feet)”. It is material that the interlineation refers to 2002, when the Appellant alleges his troubles began. 56.How the variation in plot size from 100 ft X 50 ft to 40 ft X 50 ft occurred was not an issue for determination before the trial court. In paragraph 4 of his defence, the Appellant perfunctorily alleged that the sale agreement relied upon by the Respondent was fraudulent, but beyond mere pleading, the Appellant did not attempt to prove the allegation, let alone to the intermediate standard of above a balance of probabilities but below beyond a reasonable doubt. 57.To allow the Respondent to get the full length and breadth of the 100ft X 50ft plot, more than the official documents which he submitted as proof of his entitlement to the plot permit, would be to occasion an injustice by dispossessing the equally deserving Respondent who has provided documents in evidence which the Appellant did not contradict by way of superior evidence, save a mere claim that he is entitled to the entire portion of the plot measuring 100ft X 50ft. I am unable to make a finding of fraud on the part of the Respondent where the same was neither pleaded, particularized, nor supported by evidence to the required standard before the trial court. 58.As imperfect and rudimentary as the Appellant’s “title” document may be, all it conferred upon the Appellant was a plot size of 50 ft X 40 ft and no more. From its root, the document allocating the Appellant his plot did not contemplate that he would be entitled to a plot of 100ft X 50ft. It is therefore superfluous and unnecessary to inquire into the root of the Respondent’s entitlement because it is separate and distinct from that of the Appellant and, further, the documentary evidence and particularly the letter of June 26, 2001, eliminate any competition between the claims of both the Appellant and the Respondent. 59.I would have exercised greater caution and been less inclined to conclude that the handwritten notes supersede the initial intentions of the parties, as articulated in the typed document, which allocated the Appellant a plot measuring 100ft by 50ft, if the Appellant had provided evidence that such handwritten notes were obtained through fraudulent means. This is not the situation in the present case. 60.On the whole, I find that the Respondent proved her case before the trial court to the required standard of proof on a balance of probabilities. ii. Who Should Bear the Cost of the Appeal? 61.It is trite law that costs follow the event. Consequently, the cost of the Appeal should be borne by the unsuccessful party, who in this case is the Appellant. E. Disposition 62.In view of the foregoing analysis, I do make the following ordersi.The judgment and decree issued by the Principal Magistrate, Honorable Jackson Omwange, in Garissa CMELC No. E006 of 2023, dated March 26, 2025, is upheld.ii.The Appeal herein is devoid of merit and is dismissed.iii.Costs of the Appeal are awarded to the Respondent.Orders accordingly. DATED, SIGNED AND DELIVERED AT GARISSA THIS 9TH DAY OF JULY 2026.DR. OMONDI R. OWINO, FCIArbELC JUDGEDelivered virtually on the teams platformIn the presence of:Mr. Allan Upendo for AppellantMr. Chacha for RespondentMr. Dabar Mohamed, Court Assistant6