Dambala v Jirma (Environment and Land Appeal E004 of 2025) [2026] KEELC 4656 (KLR) (22 July 2026) (Judgment)

Dambala v Jirma (Environment and Land Appeal E004 of 2025) [2026] KEELC 4656 (KLR) (22 July 2026) (Judgment) Neutral citation: [2026] KEELC 4656 (KLR) Republic of Kenya In the Environment and Land Court at Isiolo Environment and Land Appeal E004 of 2025 JO Mboya, J July 22, 2026 Between Hawo Dambala Appellant and Gorbole Dambala Jirma Respondent (Being an Appeal form the Judgment of the Honourable Willy Kipkoech – P M in Moyale MCELC No. E007 of 2024 delivered on 04.03.2026) Judgment 1.The dispute culminating into the subject appeal pits a brother against a sister. On one hand, the brother [now the Respondent] posits that the disputed property belongs to one Dambala Jirma [deceased] and who was their father, while the Appellant, posits that the suit property, was purchased by her [Appellant’s] husband, namely; Roba Guyo, who thereafter gave out the property to her [Appellant] as Maher [dowry] upon divorce. To this end, the Appellant contends that the suit property does not form part of the estate of their deceased father, as espoused by the Respondent. 2.The nature of the dispute and the intrigue[s] surrounding the same, bring to light the emotional attachments, that Kenyans have on land. It is quite interesting. It is similarly, fascinating. At time[s], it puzzling. But, yes, Land is sensitive. 3.Be that as it may, the facts of this case bring[s] to mind the observation in the case of Githinji & 29 others v Kenya Urban Roads Authority & 7 others [2019] KECA 706 (KLR). The Court of Appeal [per Ouko P – as he then was] remarked thus:“In Kenya the attachment to land is passionate, emotional and almost fanatical. Nations, neighbours, siblings, spouses and even strangers fight over land. In some instances, the disputes degenerate into bloodshed and death. This Court in Gitamaiyu Trading Company Ltd v Nyakinyua Mugumo Kiambaa Co. Ltd & 11 others Civil Appeal No. 84 of 2013, explained why land is such an important asset thus;“Land, no doubt, is not only the most important factor of production but also a very emotive issue in Kenya. Land remains the most notable source of frequent conflicts between persons and communities.” 4.Before venturing to interrogate and unravel the controversy, it is apposite to put the facts into context. The facts of the matter are: The Respondent herein filed the plaint in the lower court; the Respondent contended that the suit property [unregistered] forms part of the estate of Dambala Jirma Dima [deceased]; the suit property is supposed to be shared by the beneficiaries of the estate; the Appellant herein is a sister of the Respondent; the Appellant is a beneficiary of the estate; and the suit property was the subject of proceedings before the Kadhi; the Appellant objected to the succession proceedings in respect of the suit property; and the Kadhi directed that the question of ownership be determined by the court [ELC]. 5.The Respondent thereafter sought various reliefs. The reliefs sought vide the Plaint dated the 04.04.2024 are:i.A declaration that the suit property known as an unregistered land parcel in Manyatta Location of Moyale sub county measuring 20m by 25m by 19m by 25m and estimated area of 0.05 Ha is the estate of Dambala Jirma Dima available for distribution to his lawful heir in accordance with Islamic law.ii.An order status quo be maintained against the suit property being an unregistered land parcel in Mayatta Location of Moyale sub County measuring 20m by 25m by 19m by 25m and estimated area of 0.05Ha pending the distribution of the same to lawful heirs of the late Dambala Jirma Dima. 6.The Appellant; who was the defendant in the lower court duly entered appearance and thereafter filed a statement of defence. The statement of defence is dated the 31.07.2024. The Appellant denied the contents at the foot of the plaint. In addition, the Appellant posited thus: The suit property was bought/purchased by her Ex-husband; the Ex-husband, namely; Roba Guyo, thereafter divorced the Appellant; the Ex-husband gifted the suit property to the Appellant; the property was gifted as Maher[dowry]; the Appellant is the one who has been in occupation of the suit property; the suit property does not form part of the estate of Dambala Jirma [deceased]; and the Respondent herein has no rights over the suit property. 7.The suit in the lower court was heard and determined vide Judgment delivered on the 04.03.2026. The learned trial magistrate [Hon. W K Cheruiyot – Principal Magistrate] found and held that the Respondent had duly proved that the suit property was acquired by Dambala Jirma [deceased]. In addition, the learned trial magistrate held that the suit property forms part of the estate of the deceased and thus ought to be distributed in accordance with the relevant succession laws. 8.Conversely, the learned trial magistrate found and held that the Appellant had failed to prove that the suit property was purchased by her [Appellant’s] ex-husband; and that the property was gifted to the Appellant on the basis of maher [dowry]. To this end, the court dis-believed the Appellant. 9.In the end, the learned trial magistrate entered Judgment in favour of the Respondent in terms of the Plaint dated the 04.04.2024. However, the trial court did not award costs, insofar as the disputants are related/family members. 10.Dissatisfied, the Appellant has now approached this court vide Memorandum of appeal dated the 07.03.2026 and wherein same has canvassed various grounds. The grounds underpinning the appeal are:i.That the Honorable Magistrate erred in law and fact by failing to properly analyze and weigh the evidence on record, thereby reaching a conclusion that was inconsistent with the testimony provided by the defence.ii.That the Honorable Magistrate erred in law and fact by shifting the burden of proof to the defendant to prove her title and the validity of her marriage instead of requiring the plaintiff to strictly prove his case on a balance of probabilities.iii.That the Honorable Magistrate erred in law and fact by failing to accurately record and evaluate the witness testimony accordingly, specifically the testimony of DW3, whose evidence supported the Appellant’s claim but was disregarded by court.iv.That the Honorable Magistrate erred in law and fact by failing to apply the doctrine of possession and acts of ownership over the suit property for a duration that confers legal interest.v.That the Honorable Magistrate erred in law and fact by failing to find that the plaintiff had failed to provide any documentary evidence to prove the alleged purchase of the land by the late Dambala Jirma Dima.vi.That the Honorable Magistrate erred in law and in fact by dismissing the Appellant’s claim to ownership based on procedural technicalities regarding the lack of a formal counterclaim, thereby offending the principles of substantive justice. 11.The subject Appeal came up for directions on the 19.05.2026, whereupon learned counsel for the Appellant intimated to the court that same has since filed and served the record of appeal. In addition, learned counsel posited that the record of appeal was complete. To this end, counsel sought directions as pertains to the hearing and disposal of the appeal. Moreover, learned counsel proposed to have the appeal canvassed by way of written submissions. 12.With the concurrence of the learned counsel for the Respondent, the court proceeded to and issued directions. The directions were: The appeal shall be canvassed by way of written submissions; the Appellant shall file and serve written submissions within 14 days from the date of the directions; the Respondent shall file and serve written submissions within 14 days from the date of service; and the Appellant shall be at liberty to file rejoinder submissions [if any] within 7 days from the date of service. 13.The Appellant filed written submissions dated the 25.05.2026 and wherein the Appellant has highlighted five [5] key issues. The issues are: The learned magistrate failed to properly analyze the entire evidence; the learned trial magistrate failed to apply the doctrine of possession; the learned trial magistrate misapprehended and misapplied the law on burden of proof; the learned trial magistrate incorrectly recorded proceedings relating to DW3 ; and the learned trial magistrate wrongfully dismissed the Appellant claim to ownership of the suit property on the basis of technicalities. 14.Regarding the first issue, learned counsel for the Appellant has submitted that the learned trial magistrate failed to properly appraise, evaluate and analyze the evidence that was tendered by the Appellant and thus same arrived at an erroneous conclusion. In particular, it has been submitted that the learned trial magistrate failed to appreciate that the Appellant had been in contineous occupation of the suit property. In addition, it has been submitted that the learned trail magistrate also failed to appreciate that it is the Appellant, who allowed his late brother and family, to occupy the suit property. 15.Additionally, it has been submitted that the father of the parties [both Appellant and the Respondent] died in the year 1994 and if, the suit property belonged to the deceased, then the succession proceedings ought to have been taken earlier. For good measure, it has been submitted that there was no justification for the Respondent to delay in commencing the succession, if the suit property, truly belonged to the deceased. 16.Secondly, learned counsel for the Appellant has submitted that the learned trial magistrate ignored and disregarded the doctrine of possession. In particular, it has been submitted that the learned trial magistrate, failed to appreciate that the Appellant had exercised exclusive possession and acts of ownership over the suit property. In this regard, it has been posited that the learned trial magistrate failed to appreciate that possession confers legal interests and rights. 17.To buttress the foregoing submissions, learned counsel for the Appellant has cited and referenced the holding in the case of Benja Properties Limited v Syedna Mohammed Sahed and 4 others [2015] eKLR; and Bandi v Dzomo and 76 others [civil appeal number 16 of 2020], respectively. 18.Thirdly, learned counsel for the Appellant has submitted that the learned trial magistrate misapprehended and misapplied the principle relating to burden of proof. It has been submitted that the learned trial magistrate shifted the burden of proof to the Appellant, yet it is the Respondent who had filed the suit. Learned counsel has contended that the burden of proof lay on the Respondent, to prove that the suit property belonged to Dambala Jirma [deceased] and thus formed part of the estate. 19.The next issue that has been canvassed by learned counsel for the Appellant, touches on and concerns the recording of the proceedings. Learned counsel for the Appellant has submitted that the recorded proceedings showed that DW3 indicated that the Appellant used the money, which she had been given on the basis of ‘maher’ [dowry] to buy the suit plot. However, it has been argued that the witness statement, which had been adopted, did not align with the said testimony. The learned trial magistrate has been accused that same may not have correctly, captured/recorded the testimony of the witness. 20.Furthermore, it has been submitted that the testimony of DW3, constitutes a complete departure from the evidence contained at the foot of the witness statements, which had [sic] been adopted by the Witness. 21.Finally, it has been submitted that the learned trial magistrate also erred, in dismissing the Appellant’s claim pertaining to ownership of the suit property, on the basis of a technicality. In particular, it has been submitted that the learned trial magistrate elevated procedural technicalities, in such a manner as to defeat substantive justice. 22.Further, and in addition, it has been submitted that the Appellant had tendered credible evidence to show ownership and possession of the suit property, and thus her entitlement to the suit property, ought not to have been dismissed merely because same had not filed a counter claim. 23.Flowing from the foregoing, learned counsel for the Appellant has submitted that the appeal beforehand is meritorious. In this regard, the court has been invited to find and hold that the appeal ought to be allowed. Moreover, the court has been implored to set aside the Judgment of the lower court; and to dismiss the Respondent’s suit. 24.The Respondent filed written submissions dated the 26.06.2026 and wherein same has highlighted five [5] key issues. The issues are: The Respondent duly proved his case on a balance of probabilities; the Appellant did not prove the gift of the property [maher]; the testimony by the Appellant and her witnesses, was riddled with contradictions; and the Appellant herein is canvassing the issue of adverse possession [doctrine of possession] which was not raised before the trial court. 25.Learned counsel for the Respondent has thereafter submitted that the learned trial magistrate correctly evaluated the totality of the evidence on record and arrived at the correct conclusion. In particular, it has been submitted that the evidence that was tendered by the Appellant did not rebut the evidence showing that the suit property belonged to the deceased. Moreover, it has pointed out that the Appellant did not demonstrate how the suit property was gifted to her vide ‘maher’. 26.Premised on the foregoing, learned counsel for the Respondent has invited the court to find and hold that the appeal before the court, is bereft of merits and thus same ought to be dismissed. 27.Having reviewed, the record of appeal; the grounds of appeal; the evidence that was tendered before the lower court [both oral and documentary]; the Judgment of the lower court; and upon considering the submissions by/on behalf of the respective parties, three [3] key issues emerge for determination. The issues are: Whether the Respondent duly proved that the suit property belonged to Dambala Jirma [deceased] and thus forms part of the estate; Whether the Appellant proved her entitlement to the suit property or otherwise; and What reliefs [if any] ought to issue. 28.Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a first Appeal. By virtue of being a first Appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first instance. The court is obligated to review the evidence and determine whether the finding and conclusion arrived at by the trial magistrate accord with the evidence on record and the legal principles. 29.The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding and conclusion of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principle, which vitiates the findings of the Trial Court. 30.Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. It is a jurisdiction that cannot be exercised for the mere asking. In addition, it cannot be invoked at will. Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya, regulates its exercise. 31.The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first Appeal, has been the subject of various court decisions. In the case of Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR). The Court of Appeal expounded on the scope of the jurisdiction. The court stated thus:“ 46.We also wish to be guided by the reasoning of this court in the case of Mwana Sokoni v Kenya Business Limited (1985) KLR 931 page 934,934 thus:-“Although this court on Appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence on a first Appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping v Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters v Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a 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 has had the advantage of seeing and hearing and the witnesses.” 32.Recently, the Court of Appeal revisited the jurisdictional remit in the case of Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR). The Court highlighted the principle in the following manner:“We have considered the Appeal, and this being a first Appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court, but of course, where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the Civil Procedure Act, which requires a first appellate court to re-evaluate, reassess, and reanalyse the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows: “Apart from the classes of case in which the powers of the Court of Appealare limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.” [see also the decision in the case of County Government of Bungoma & 2 others v JOO & 2 others [2024] KECA 1377 (KLR) and County Government of Narok v Ntutu & 2 others [2026] KECA 880 (KLR) – [paragraphs 56 and 57 thereof]” 33.Bearing in mind the principles enunciated in the decisions [supra], I am now well poised to revert to the subject matter and to address the thematic issues highlighted elsewhere hereinbefore. I beg to start with the first issue, namely; Whether the Respondent duly proved that the suit property belonged to Dambala Jirma [deceased] and thus forms part of the estate. 34.The Respondent herein, is the one who approached the lower court contending that the suit property belonged to and formed part of the estate of Dambala Jirma [now deceased]. To the extent that the Respondent raised the said assertions, same [Respondent] bore the burden of proving the assertions. Simply put, the Respondent was chargeable with the burden of proof. 35.In the case of Moi v Muriithi & another [2014] KECA 642 (KLR), the Court of Appeal reiterated and reaffirmed the legal position pertaining to burden of proof 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.” 36.Did the Respondent prove his case to the requisite standard? The Respondent testified before the lower court and elaborated the manner in which the suit property was acquired by Dambala Jirma [now deceased]. In addition, the witness also highlighted the position that the deceased and his wife, lived on and resided upon the suit property. Furthermore, the Respondent testified that the Appellant herein was also residing on the suit plot, before she was married, or better still, given out in marriage. 37.It was the further testimony that the Appellant later divorced her husband and returned to the suit property, before she was later remarried. The testimony by the Respondent, pertaining to ownership of the suit property, was corroborated by five other witnesses. The witnesses included PW3, who is a son of the Appellant. 38.In particular, PW3 narrated that upon his birth, same was taken to reside with his grandfather [Dambala Jirma ] on the suit plot. The witness added that he grew up on the suit plot and he knew that the suit plot belonged to his grandfather. 39.PW3 went further and posited that the suit plot does not belong to the Appellant. However, the witness added that the Appellant, is merely being pushed by her other children,[Siblings of PW3], to pursue the suit property. The witness averred that the Appellant’s claim, relating to the suit property, is not honest. 40.Other than the witnesses who testified on behalf of the Respondent; and whose testimony, was not impeached, the Appellant’s own witnesses conceded that Dambala Jirma [deceased] and his wife, resided on the suit plot. DW1 stated thus:“My grandfather and my grandmother were living on the land. My grandfather is Dambala Jirma. They were living in the kitchen. The main house was reserved for my uncle. My grandfather is called Dacko and Nune Dambala.” 41.Additionally, the Appellant herself also reiterated the fact that her father [Dambala Jirma] and her mother also resided on the suit property. The witness DW4 stated thus:“The people who have lived in the property since it was purchased are my parents. I do not have any document of transfer of the suit land” 42.Though the Appellant had claimed that the suit property, was purchased by her ex husband [Roba Guyo], the Appellant did not tender any evidence as to how, her own parents came to live on the suit property, if same was bought by her Ex-Husband, presumably after she was married to same. Similarly, the Appellant did not tender any evidence to contradict the assertions that before she was married, same [Appellant ] was residing on the suit plot. Surely, the Appellant’s ex-husband, could not have bought the suit property long before he married the Appellant. 43.Moreover, it is also important to point out that the Appellant herein procured a letter from the chief dated the 21.02.2024; and which letter was tendered in evidence on behalf of the Appellant. The contents of the letter under reference are crystal clear. The letter affirms that the suit property comprised of part of the estate of the deceased. 44.In my humble view, evidence abound to demonstrate that the suit property indeed belonged to Dambala Jirma [now deceased]. It is because the suit property belonged to the deceased, that his children, including the Appellant lived/resided thereon. I am convinced that the Respondent proved his case to the requisite standard. 45.I now wish to deal with the next issue. The next issue relates to whether the Appellant proved her entitlement to and in respect of the suit property. The Appellant’s testimony is quite interesting. To begin with, the Appellant testified that the suit plot was bought by her ex-husband, namely; Roba Guyo. However, the Appellant did not tender any evidence to that effect. In any event, the Appellant conceded that she does not now when the suit property was [sic] bought. 46.Furthermore, the Appellant testified that the suit property, which she does not know when same was bought, was ultimately gifted to her on the basis of Maher [dowry], upon being divorced by her ex-husband. However, the Appellant did not place before the court any evidence, that the suit property was so gifted. I beg to remind myself that it is the Appellant who had raised the issue of maher [dowry], as the basis of ownership of the suit property. The Appellant was thus chargeable with the burden of proof. The Appellant failed to discharge the burden. [See Section 109 of the Evidence Act, Chapter 80 Laws of Kenya]. 47.Other than the deficiencies, which plague the testimony of the Appellant, it is also worthy to note that the Appellant’ own witness [DW3] contradicted the Appellant. This is what DW3 stated.“The plot belongs to the defendants. I lived in the plot for 60 years. I got my children in the said plot. I do not know how the plot was acquired. She bought the land using her dowry”. 48.While under cross examination DW3 stated thus:“The late Dambala is my father in law. When I got married, he was there with my mother in law. Later after they got ill, they were taken elsewhere where they both died. That was at Dambala’s place. They stayed there for about a year. The defendant used dowry to purchase the land. She was awarded dowry in form of money. I do not know how much money was paid as dowry.” 49.The testimony, which has been referenced above, contradicts the testimony that was tendered by the Appellant. Similarly, the evidence of DW3 discredits the position taken by the Appellant. 50.Learned counsel for the Appellant has appreciated the contradiction[s] on the testimony of DW3. However, learned counsel has posited that the contradiction[s], may have been caused by the incorrect recording of the evidence by the trial magistrate. In addition, it has been posited that because the witness was testifying in Borana language and which was thereafter, being interpreted, there is a possibility that the evidence of DW3 was misapprehended, nay, mis-recorded. 51.Additionally, learned counsel for the Appellant has also submitted that the testimony of DW3, is at variance with her written statement. In fact, learned counsel has conceded that there is a complete departure, from the witness statement. Counsel has thereafter, attempted to explain the probabilities, that may have caused the contradictions, nay, departure. The endeavors to explain what is touted as departure, but which are material contradictions, is not informed by any evidence. Suffice it to state that if any clarification, was to be undertaken, same could only be undertaken vide evidence. 52.It is also common ground that submissions, by the learned counsel or parties themselves, no matter how colourful, cannot substitute evidence. In this case, the contradictions were evidentiary in nature. Same therefore could not be clarified or justified by way of submissions. Simply put, the submissions by learned counsel cannot take away the magnitude of the contradictions. 53.Additionally, it is not lost on me that the lower court, just like this court, are courts of records. To this end, what guides the subject appeal is the record of the lower court. The record comprises of the manuscript [the proceedings as taken by the trial court] and the typed proceedings, which are ordinarily certified for purposes of verification. I wish to state that as an appellate court, I cannot proceed on speculation, hypothesis, or probabilities. Mine is to review the record and interrogate the evidence. 54.Be that as it may, the bottom line is that the evidence that was tendered by the Appellant and her witnesses, are inherently contradictory. The evidence is devoid of credibility. The evidence is lacking in consistency. The evidence is clearly devoid of probative value. To this end, the learned trial magistrate was correct in his analysis and evaluation. Moreover, the conclusion that the evidence was contradictory, is well grounded. 55.The guidelines and parameters for discerning the credibility of a witness; and the probative value [if any] to be attached to such evidence, was illuminated by the Court of Appeal in the case of General & another v Hussein & 3 others [2025] KECA 1022 (KLR). The court stated thus:“The Law of Evidence, in all its complex glory, naturally revolves around two cardinal things: facts and proof. It is these two that combine to form evidence, which the court may or may not accept as showing the merit or otherwise of a party’s case. Some facts are however more important than others and it is not just expected but demanded that these facts be proved by the party seeking to rely on them. Section 3 (2) & (3) of the Evidence Act provides as follows: 2. A fact is proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it exists. 3. A fact is disproved when, after considering the matters before it, the court either believes that it does not exist, or considers its nonexistence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does not exist. 40.Section 107 (1) of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Sub-Section (2) of the said provision provides that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. In terms of Section 108 of the Evidence Act, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side”. 56.In a nutshell, it is my finding and holding that the Appellant did not prove her assertions. For the avoidance of doubt, it is one thing to make an assertion, and another to prove the assertion. Suffice it to state that the law of evidence is regulated by facts which are proven and not bare assertions. 57.Before concluding on this appeal, there are two sub issues, which require a short mention and discussion. The first issue, turns on the endeavor by the Appellant to introduce the doctrine of [sic] possession at this stage of the appeal. It is instructive to point out that the Appellant did not canvass the doctrine of possession before the lower court. To this end, learned counsel for the Appellant cannot now introduce the doctrine of possession [whether Seisin or adverse possession] for purposes of determination before this court. 58.The obtaining jurisprudence is trite. No new issue, which was not canvassed before the trial court can be raised before the appellate court for the first time. The only exception is where the issue touches on jurisdiction. In the case of Afrison Export Import Limited & another v National Land Commission & 9 others [2026] KECA 1257 (KLR), the Court of Appeal highlighted the position thus:Time without number, the Supreme Court has reiterated the principle that an issue not taken up by the parties before the court below does not fall for determination by the court appealed to. In that regard we will only cite two decisions from the Supreme Court. In Mahamud v Mohamad & 3 Others; Muktar (Interested Party) [2019] KESC 70 (KLR), it was held that: “I agree and it follows that, if there is no determination by the Court of Appeal on an issue which is now before us, how then will the correctness of the “decision” by the superior Court be tested? With regard to the exercise of our jurisdiction under Article 163(4)(a) of the Constitution, how would a litigant fault the Court of Appeal on the basis of a particular interpretation or application of the Constitution? It is those lingering questions that lead me to the more persuasive conclusion that, in the absence of a determination by the Court of Appeal on a specific matter, no “appeal” can properly fall before the Supreme Court in exercise of its appellate jurisdiction save where the non-determination is itself the question placed before this Court in which case, the considerations would be completely different. This is because, the appellate jurisdiction of this Court is predicated upon specific findings by the Court of Appeal.”93.And, in Petition No. E018 of 2023 - Republic v Joshua Gichuki Mwangi, though a decision arising from a criminal matter, the Court stressed that: “The record also shows that issue of constitutionality of the sentence was raised for the first time before the Court of Appeal and introduced by way of submissions by counsel representing the Respondent. Having combed through the Record of Appeal and proceedings, we note that the constitutionality of the Respondent’s sentence was also not raised either before the trial court or the High Court. The Respondent having failed to raise the issue of the constitutionality of the mandatory minimum sentence imposed on him in his appeal before the High Court, it is obvious to us that he was precluded from addressing the issue on appeal before the Court of Appeal. 59.Simply put, the attempted introduction of the issue of the doctrine of possession, is contrary to the established position of the law. It is unacceptable. 60.The next sub-issue touches on the contention that the Appellant’s ownership rights to the suit property was dismissed, merely because the Appellant had not filed a counter claim. In addition, it has been contended that the dismissal of the Appellant’s claim, for lack of a counter claim, constituted a legal technicality. 61.My short answer to this issue, is to the effect that the learned trial magistrate was right. There is no way the Appellant could partake of or procure any positive relief, without a counter claim. Moreover, the holding touching on the absence of a counter claim, was not a legal technicality. It was a substantive question, which impacts on jurisdiction. 62.Without belaboring the point, it suffices to reference the decision in Emuria v Sambu & 2 others [2025] KECA 1033 (KLR). The Court of Appeal stated thus:“A court of law should at all times determine the issues that are before it by way of pleadings and should not award prayers that are not sought, which do not settle the dispute and which only adds fuel to the dispute, like in the appeal before us.”[See also Presbyterian Foundation v Kibera Siranga Self Help Group Nursery School [2023] KECA 371 (KLR) – paragraphs 37 -39, thereof]. 63.I am afraid, the submissions by the learned counsel for the Appellant, are premised on misapprehension. Quite clearly, the Appellant could not purport to procure a positive order in the absence of a counterclaim. Conclusion 64.It was incumbent upon the Appellant to demonstrate to the court that the impugned Judgment was characterized by or riddled with, errors. In addition, it was incumbent upon the Appellant to point out the misapprehensions [if any] in the Judgment. Sadly, the Appellant failed to demonstrate any infraction[s] or error[s] in the Judgment. 65.It is common ground that this court can only interfere with the Judgment of the trial court, on circumscribed grounds. The grounds must be established and proven. However, in this case, no basis has been espoused. Simply put, the Appellant has failed the test in Mwangi & another v Wambugu [1984] KECA 13 (KLR). Final orders: 66.Flowing from the foregoing, the final orders that commend themselves to the court are:i.The Appeal be and is hereby Dismissed.ii.The Judgment of the lower court delivered on the 04.03.2026 and the consequential decree, be and are hereby affirmed.iii.Costs of the appeal be and are hereby awarded to the Respondent.iv.The costs in terms of clause [iii] shall be agreed upon and in default, be taxed in the conventional manner. 67.It is so ordered. DATED, SIGNED AND DELIVERED AT ISIOLO THIS 22ND DAY OF JULY, 2026OGUTTU MBOYA, FCIARB; CPM [MTI].JUDGEIn the presence of:Court Assistant: Zakayo/Mukami.Professor Hassan Nandwa for the Appellant.Mr. Behailu for the Respondent.