https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3555

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ISIOLO** **ELC APPEAL E027 OF 2025** HUSSEIN KOCHORE LERIPEN ……………………………..APPELLANT VERSUS ABDURRAHMAN KOCHORE………………………….1ST RESPONDENT JUMA ABDULRAHMAN KOCHORE………………….2ND RESPONDENT ***[Being an appeal from the Judgment and Decree from Hon. Christine Wekesa - SPM delivered on the 09.09.2025 in Marsabit ELC No.E003 of 2021]*** **JUDGMENT** 1. The appellant herein *[who was the plaintiff in the lower court]* filed the plaint dated the 15.12.2020. The appellant contended that plot number 90- Marsabit [hereinafter referred to the suit property] was lawfully gifted unto him by one Bahati Kochore [now deceased]. The appellant further contended that upon the suit property being gifted unto him, he [appellant] entered upon and took possession thereof. 2. Additionally, the appellant posited that he proceeded to and developed the suit property by constructing assorted residential and commercial house/stalls on the suit property; and that the premises that were constructed on the suit property were leased out to various tenants. Moreover, the appellant contended that same received rents from the premises standing on the suit property upto and including February 2019, when it is stated that the premises on the suit property were razed down by fire. 3. Furthermore, the appellant posited that insofar as the suit property had been gifted unto him by his mother [Bahati Kochore- deceased], the suit property lawfully belongs to him. To this end, the appellant contended that he had lawful rights to and in respect of the suit property. 4. Be that as it may, the appellant posited that the respondent herein illegally and unlawfully trespassed onto the suit property; blocked the tenants from entering onto the suit property; and have deprived the appellant of his lawful rights to the suit property. Moreover, it was contended that the 1st respondent, who is an elder brother of the appellant, proceeded to and obtained grant of letters of administration in respect of the estate of Bahati Kochore [deceased] by way of fraud. 5. Flowing from the foregoing, the appellant sought a myriad of reliefs at the foot the plaint dated 15.12.2020. The reliefs were various and numerous. Suffice it to state that the appellant invited the lower court to find and hold that the suit property was duly gifted to him; and thus the appellant was entitled to the suit property. In addition, the appellant sought a vesting order; eviction; permanent injunction; special damages; general damages; and mense profits. 6. The respondents herein duly entered appearance and filed a statement of defence the respondents also filed a counter claim. In particular, the respondent posited that the suit property lawfully belongs to Bahati Kochore [now deceased]; the suit property was never gifted to the appellant; the appellants possession of the suit property was based on family arrangements; the appellant’s claim to the suit property are misconceived; the suit property forms part of the estate of the deceased; and appellant does not have any exclusive proprietary. 7. Based on the foregoing, the respondents invited the court to find and hold that the appellant had not established his claim to the requisite standard. In this regard, the respondents implored the court to dismiss the appellant’s suit; allow the counter claim; and to award costs to the respondents. 8. The suit in the lower court was heard and disposed of vide judgment dated 09.11.2025 and wherein the learned trial magistrate [Hon. Christine Wekesa- SPM] found and held that the appellant had not established his claim or entitlement to the suit property. In addition, the trial magistrate held that the suit property formed part of the estate of Bahati Kochore [deceased] and thus would only be dealt with in accordance with the law of succession. 9. It is the said judgment and consequential decree which has aggrieved the appellant and thus provoking the subject appeal. The appellant has filed the memorandum of appeal dated the 30.09.2025, which is argumentative; lengthy; repetitive; and prolix in nature. Be that as it may, the grounds of appeal are reproduced as hereunder: 10. *The Honourable Magistrate erred in land and fact by holding that the suit property [Plot No. 90] situated within Marsabit Town is part of the estate of the deceased and not a gift inter vivos from the Appellant’s deceased mother to the Appellant despite clear evidence, binding precedents and law to the contrary.* 11. *The Honourable Magistrate erred in law by failing to properly analyze and understand the elements of the gift inter vivos and thereby arriving at an illegal, unconstitutional, absurd and patently unjust judgment.* 12. *The Hon. Magistrate erred in law by holding that none of the family members witnessed the gift to the plaintiff when there is no such requirement in law.* 13. *The hon. Magistrate erred in law and fact by relying on appearance of facts rather than factual material evidence before here by wrongly holding that the appellant was utilizing the suit property for more than 30 years as “it appeared the same was family arrangement which all siblings were comfortable with.* 14. *The Hon. Magistrate further erred in law and fact in that there was no documentary evidence that the plaintiff was in possession because of the alleged family arrangements which all siblings were comfortable with.* 15. *The Hon. Magistrate erred in fact by misrepresenting the 1st Respondent as siblings and family in her analysis and thereby set the erroneous foundation for her biased and wrong conclusion of a family arrangement. Through which the appellant got possession of the suit property.* 16. *The honorable magistrate further erred in law in that it was only the deceased wo had the power to gift and dispossess the appellant of the gifted property and not the amorphous entity referred to as the family siblings.* 17. *The honorable magistrate erred in law and fact by failing to the take into account the fact that 1stRespondent is a convicted criminal in respect of the fraudulent acquisition of the grant of a letter of administration to the estate of the deceased which grant was subsequently revoked by the High Court.* 18. *The honourable magistrate erred in law and fact by being manifestly biased and unjust for accepting and basing her entire decision on a false narrative of a convicted criminal 1st respondent reproduced as truths and thereby rewarded fraud.* 19. *The honorable magistrate erred in law and in fact by ignoring mountain of evidence of persistence fraudulent and illegal conduct on the part of the 1st respondent thereby arrived at a grossly unjust decision.* 20. *The honorable magistrate erred in law and fact by failing to take into account relevant fact such as notoriety of the fact that an unwritten gift of an unregistered land from a parent to a child within marginalized and largely illiterate communities is common place and need not be in writing for it to be completed and valid.* 21. *The honorable magistrate erred in law and fact by failing to appreciate that burden of proof is not static but shifts from one party to another in the cause of the proceedings.* 22. *The honorable magistrate erred in law and violated the constitution and right to property of the appellant by abdicating her constitutional duty to develop the law to the extent it does not give effect to the right and fundamental freedom by the insisting on documentary evidence of a gift made as far as back as 1980s from a parent to a child in marginalized, largely illiterate society that deal with each other on the basis of trust instead of the looking at other legally established material elements that proves intention to gift.* 23. *That hon. Magistrate erred in law and fact by taking into account hearsay evidence of the defendant’s witness and thereby arrived at an evidently unjust judgment.* 24. *The hon. Magistrate erred in law and fact by failing to consider, analyze and take into account the evidence of circumstances under which the respondent obtained possession of the suit property despite acknowledging the uncontested fact that the plaintiff had been in uninterrupted possession and occupation and developed the suit property for over 30 years before the hostile take over by the respondent.* 25. *The honorable magistrate erred in law and fact by failing to conduct impartial analysis of evidence and material facts and instead focused on disproving the appellant’s case as though she was respondents sitting as an arbiter.* 26. *The honourable Magistrate erred in law and fact for acknowledging the uninterrupted 30 years ownership and occupation of the suit property by the appellant but failing to provide verifiable factual and legal basis under which he was and is being disposed.* 27. *The honorable magistrate erred in law and fact by failing to take into account relevant factor and evidence in particular that the 1st respondent had been found guilty, convicted and sentenced for fraud relating to the suit property which is a material fact on how the respondents obtained possession of the suit property in the first place.* 28. *The honorable magistrate erred in law by failing to provide the legal basis that allowed a convict [1st respondent] to remain in possession of the same through fraudulent means.* 29. *The hon. Magistrate erred in law and fact thereby occasioned and facilitated miscarriage of justice by the contradictorily allowing the respondents to remain in possession and benefit from the suit property with the same time holding that the suit property is part of the estate of the deceased to be dealt with in accordance with in accordance with the law of succession.* 30. *The hon. Magistrate erred in law and fact by holding that the suit property is registered in the name of the deceased when there is no evidence of a valid and legally recognized registration document presented before court.* 31. *The Honourable magistrate erred in law by failing to properly consider interests of justice and the lawful rights of the appellant and the grave prejudice and the injustice caused to the appellant by her decision.* 32. *The Honourable Magistrate’s decision in manifestly bad in law and fact, sets a dangerous precedent and should not be allowed to stand.* 33. The subject appeal came up for directions on the 19.03.2026 whereupon counsel for the appellant intimated to the court that the record of appeal had been duly filed and served. In addition, learned counsel posited that the record of appeal was complete. Furthermore, counsel invited the court to give directions pertaining to and concerning the hearing and disposal of the appeal. 34. With the concurrence of the learned counsel for the respondents, 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 21 days from the date of the directions; the respondents shall be at liberty to file and serve submissions within 21 days from the date of service; and the appellant shall be at liberty to file and serve rejoinder submissions [if any] within 7 days from the date of service. 35. The appellant filed two sets of written submissions. The first set of the submission is dated the 07.04.2026. The 2nd set [rejoinder submissions] is dated 19.05.2026. The appellant has raised and canvassed five key issues. The issues are: Whether the court erred in the analysis of the law and evidence on the validity of the gift inter vivos; whether the court failed to properly analysis the law and the evidence presented; whether the court erred in law and fact by holding that the suit property is registered in the name of the deceased; whether the respondent and lawfully in possession and administration of the suit property; and whether the appellant’s right to the suit property was violated or otherwise. 36. Regarding the first issue, learned counsel for the appellant has submitted that the learned trial magistrate misapprehended; misconceived and misapplied the law as concerns gift inter vivos. In particular, it was submitted that learned trial magistrate failed to appreciate that the appellant had tendered evidence to show that the suit property previously belonged to Bahati Kochore [deceased]; that the deceased lawfully gifted the suit property to the appellant; the intention to gift the suit property was apparent; the gift was duly accepted by the donee; the donee entered upon and took possession of the gift ; the gift was duly delivered to the appellant. 1. In addition, it has been submitted that gift inter vivos, need not be reduced into writing. Learned counsel for the appellant has contended that a gift inter vivos can be make orally and provided that there is evidence of intention; acceptance and delivery, then the donee [in this case the appellant] was entitled to partake of and benefit from the right flowing from the gift. 2. Moreover, it has been submitted that the holding by the learned trial magistrate that the appellant did not prove the existence of a valid gift inter vivos, was based on misapprehension of the law. It has been contended that the law does not require a mandatory element that the gift must be registered. 3. With the regard to the 2nd issue, it has been submitted that the learned trial magistrate also failed to properly evaluate the evidence that was tendered and which evidence showed that the 1st respondent had committed various acts of forgery and fraud. Additionally, it was submitted that the evidence of fraud was apparent and included the forgery of the appellant’s signature in the form of consent that was used to procure the grant of letters of administration. 4. The next issue that has been canvassed by learned counsel for the appellant relates to whether the suit property is/was registered in the name of the deceased. It has been submitted that the learned trial magistrate misapprehended the evidence on record and thus arrived at an erroneous conclusion. In any event, it was submitted that the learned trial magistrate failed to take into account the evidence that the appellant had been in possession of the suit property for more than 30 years. Furthermore, it was posited that the occupation for more than 30 years, without interruption was sufficient to prove that the appellant indeed assumed delivery of the suit property. 5. The fourth issue which has been canvassed by the appellant concerns the legality or otherwise of the respondents occupation of the suit property. it has been submitted that the 1st respondent forged the signature of the appellant and thereby used same to procure a fraudulent grant of letters of administration in respect of the estate of Bahati Kochore [deceased]. In addition, it has been submitted that the 1st respondent thereafter pretended that the suit property formed part of the estate of the deceased; and was thus subject to his administration. 6. Moreover, it has been submitted that the 1st respondent has since been arrested; charged and convicted of forging the appellant’s signature of the succession form [form of consent],which was used to procure the illegal grant of letters of administration. 7. Learned counsel for the appellant has submitted that it is on the basis of the offensive grant of letters of administration that the respondent herein entered upon and took possession of the suit property. nevertheless, it has been submitted that the offensive grant of the letters of administration has since been revoked by the High Court and the respondent have no lawful rights to the suit property. 8. Lastly, learned counsel for the appellant has submitted that the learned trial magistrate failed to protect and preserve the appellant’s property rights to the suit property. In particular, it was submitted that the appellant had acquired lawful rights to the suit property on the basis of gift inter vivos; uninterrupted occupation; and long duration of possession thereof. Furthermore, it has been submitted that the learned trial magistrate failed to appreciate and internalize the import of **Article 40 of the Constitution, 2010.** 9. Flowing from the foregoing, learned counsel for the appellant has invited the court to find and hold that the appellant tendered credible evidence to demonstrate that the suit property was gifted to him; and that the appellant is entitled to exclusive possession and occupation to the exclusion of the respondents. To this end, the court has been invited to find and hold that the impugned judgment is wrought with errors of commission and omission. 10. Flowing from the foregoing, the court has been implored to allow the appeal; set aside the impugned judgment and to hold that the appellant duly proved his claim to the suit property. simply put, the court has been invited to make a decision that the appellant is the lawful owner of the suit property; and thus entitled to exclusive possession. 11. The respondent filed written submissions dated the 11.05. 2026 and wherein same has highlighted and canvased three key issues. The issues canvassed are: The appellant herein was divested of the requisite locus standi to mount and maintain the suit in the lower court; the lower court was devoid of jurisdiction to entertain the suit which essentially touched on a succession claim and the judgment of the learned trial magistrate was/is well grounded. 12. With respect to the first issue, learned counsel for the respondent has submitted that the suit property belonged to and was registered in the name of Bahati Kochore [deceased]. Insofar as the suit property was registered in the name of the said deceased, it was submitted that the appellant herein could not file or maintain the suit in the lower court without having been issued with the grant of letters of administration. It was posited that the appellant was devoid of locus standi. 13. The next issue that has been raised is to the effect that the reliefs sought by the appellant, touched on and concerned the estate of a deceased person. To this end, it was submitted that the said reliefs could only be pursued vide a succession cause and not in respect of a civil suit. Moreover, it was submitted that there is in existence a succession cause which had been filed by the 1st respondent and wherein the claim beforehand ought to have been canvassed. 14. The counsel for the respondent has also submitted that even though the grant which had been issued in the name of the 1st respondent had been revoked, the revocation did not terminate or dismiss the succession matter. In particular, it was contended that the succession cause remains open. 15. Finally, learned counsel for the respondent has submitted that the learned trial magistrate correctly appreciated the totality of the evidence that was tendered before her and thereafter correctly evaluated the evidence. It has been posited that the finding by the learned trial magistrate that the suit property formed part of the estate of Bahati Kochore [deceased] is unassailable. 16. Premised, on the foregoing, learned counsel for the respondent has submitted that the appeal beforehand is devoid of merits and thus same ought to be dismissed. In addition, the court has been invited to award the costs of the appeal to the respondents. 17. Having reviewed the record of appeal; the memorandum of appeal; the totality of the evidence on record and upon consideration of the written submissions filed by/on behalf of the respective parties, two issues crystalize for determination. The issues are: Whether the appellant was seized of the requisite locus standi to file/mount the suit in the lower court; and whether the appellant duly established and proved the claim based on gift inter vivos or otherwise. 18. 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. 19. 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 principal which vitiates the findings of the trial court. 20. 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. 21. 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 versus 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 versus 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 versus 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*** 19. 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)** 1. *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](https://new.kenyalaw.org/akn/ke/act/1924/3)*, which requires a first appellate court to re-evaluate, reassess, and reanalyze 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 Appeal are 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 County Government of Bungoma and another versus J O O and another [2024] KECA; and County Government of Narok versus Livingstone Kunini Ntutu [2026] KECA, respectively].* 2. Back to the issues for consideration. I beg to start with the first issue, namely: Whether the appellant was seized of the requisite locus standi to mount and maintain the suit in the lower court or otherwise. Learned counsel for the respondents has taken issue with the appellant’s legal capacity to file the suit in the lower court. 3. According to the counsel for the respondent’s the suit property; which the appellant claimed, belonged to and was registered in name of Bahati Kochore [deceased]. To this end, it was posited that the appellant could not purport to file/originate the suit without having obtained grant of letters of administration in accordance with the provisions of **Section 82 of the Law of Succession Act, Chapter 160 Laws of Kenya.** 4. Despite the foregoing contention by/on behalf of the respondent, it is worthy to recall and reiterate that learned counsel for the respondent had raised and canvassed a preliminary objection pertaining to and concerning the locus standi of the appellant. The preliminary objection was heard and determined vide ruling rendered on the 22.04.2021. For good measure the preliminary objection was dismissed. 5. The respondents herein were at liberty to file/lodge an appeal [if at all] against the ruling that dismissed the preliminary objection. However, there is no gain saying that no such appeal was raised or prosecuted. It then means that the respondents were content with the findings and conclusion vide the ruling rendered on the 24.04.2021. 6. To my mind, the respondent can not now sneak back to court and purport to re-agitate the question of locus standi in this appeal. The raising of the question of locus standi by the respondents, constitutes and attempt to appeal against and impugn the ruling of the lower court dated 24.04.2021, in respect of which there is no appeal. I am afraid that the ground touching on and concerning lack of locus standi and by extension lack of jurisdiction by the lower court are misconceived and legally untenable. 7. At this juncture, it is important to reference the provisions of Section 68 of the **Civil Procedure Act, Chapter 21, Laws of Kenya.** The Section stipulate thus: ***68. Appeal from final decree where no appeal from preliminary decree:*** ***Where any party aggrieved by a preliminary decree does not appeal from that decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.*** 1. The next issue relates to whether the appellant herein proved/established his claim to the requisite standard or otherwise. To start with, it is common ground that the appellant bore the burden of proving the various assertions/allegations that were adverted to in the body of the plaint. In particular, the appellant bore the burden of proving: that the suit property was gifted to him by Bahati Kochore [deceased]; that the gift inter vivos [if at all] met the requisite threshold; that the gift inter vivos was perfected; and that the respondents, particularly, the 1st respondent has no lawful right to the suit property. 2. The appellant posited that the suit property was gifted unto him. nevertheless, it is not lost on me that the appellant did not tender or adduce or cogent; concrete; or compelling evidence to demonstrate that the suit property was ever gifted to him. Suffice it to point out that the appellant did not procure the attendance of any witness [if at all] who witnessed the property being gifted unto him. surely, if there was ever a gift in favor of the appellant, then the giftor [Bahati Kochore] would have done so either in the presence of some clan members; or the rest of her children, taking into account that the deceased was blessed with 10 children inclusive of the appellant. 3. Furthermore, it is my humble position that the giftee of the suit property, which is immovable in nature, could not have been done in secrecy. In any event, there was need for the appellant to prove the existence of the gift inter vivos. 4. Additionally, it is common ground that the suit property is immovable in nature. Where a giftor seeks to gift away an immovable property, during his/her lifetime, then the giftor ought to reduce the gift into writing; or to perfect the transfer of the property into the name of the intended giftee. However, in respect of the instant matter there was no deed in writing; no transfer instruments was ever registered; and no agreement was tendered. Worse still, the purported gift inter vivos was made [if at all] in the presence of no witness. 5. In case of **In re Estate of The Late Gedion Manthi Nzioka (Deceased) [2015] KEHC 944 (KLR)**, the court [per Nyamweya Judge – as he then was] elaborated on the elements that must be proven before one can establish the existence of a valid gift inter vivos. Furthermore, the learned judge illuminated the requirements where the gift in question touches on and concerns an immovable property. 6. The court stated thus: ***For gifts*inter vivos*, the requirements of law are that the said gift may be granted by deed, an instrument in writing or by delivery, by way of a declaration of trust by the donor, or by way of resulting trusts or the presumption of. Gifts of land must be by way of registered transfer, or if the land is not registered it must be in writing or by a declaration of trust in writing. Gifts* inter vivos*must be complete for the same to be valid. In this regard it is not necessary for the donee to give express acceptance, and acceptance of a gift is presumed until or unless dissent or disclaimer is signified by the donee. See in this regard Halsburys Laws of England 4th Edition Volume 20(1) at paragraph 32 to 51.*** ***In Halsburys Laws of England 4th Edition Volume 20(1) at paragraph 67 it is stated as follows with respect to incomplete gifts:*** ***“Where a gift rests merely in promise, whether written or oral, or in unfulfilled intention, it is incomplete and imperfect, and the court will not compel the intending donor, or those claiming under him, to complete and perfect it, except in circumstances where the donor’s subsequent conduct gives the done a right to enforce the promise. A promise made by deed is however, binding even though it is made without consideration. If a gift is to be valid the donor must have done everything which according to the nature of the property comprised in the gift, was necessary to be done by him in order to transfer the property and which it was in his power to do.”*** 1. Lastly, I wish to point out that even though the appellant called various witnesses, to support his contention that the suit property was gifted to him, none of the witnesses witnessed the gift in question. To my mind, the testimony of the witnesses that were called by the appellant did not go towards proving the crux of the appellant’s case. If anything, the witnesses by the appellant only retorted the information that had [sic] been relayed to them by the appellant. 2. Simply put, the witnesses who testified by and on behalf of the appellant were merely the appellant’s mouth piece. Their evidence did not have any probative value or at all. 3. The obligation of a claimant to place before the court credible evidence in the conventional manner was underscored in the case of **General & another v Hussein & 3 others [2025] KECA 1022 (KLR). The court stated as hereunder:** **39. *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***](https://kenyalaw.org/akn/ke/act/1963/46)***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***](https://kenyalaw.org/akn/ke/act/1963/46)***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***](https://kenyalaw.org/akn/ke/act/1963/46)***, 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.*** 1. Does the suit property form part of the property of the deceased? the appellant had contended that the suit property was gifted to and in his favour by the deceased. however, while discussing the question of gift inter vivos, I have found and held that no evidence has been tendered to that effect. 2. On the contrary, it is common ground that even the appellant herein conceded and acknowledged that the suit property was still registered in the name of the deceased. furthermore, the appellant is on the record seeking a vesting order, to vest the suit property in him. By seeking a vesting order the appellant is conceding that the suit property was registered in the name of some third party. The third party in this case was/is the deceased. 3. Insofar as the suit property was still registered in the name of the deceased, and coupled with the fact that the deceased did not divested herself of the suit property, it then means that the suit property formed part of the free property of the deceased. 4. What constitute the free property of a deceased has been defined in Section 3 of the **Law of Succession Act, Chapter 160 Laws of Kenya**. The Section stipulates thus: ***"free property", in relation to a deceased person, means the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death;*** 1. Are the respondents trespassers? The appellant herein had also contended that the respondents have trespassed onto the suit property by blocking his [appellant’s] tenants from accessing the suit property; and by depriving the appellants of his property rights in respect of the suit property. To succeed on the plea of trespass, it was incumbent upon the appellant to tender evidence before the court to show title to or entitlement in respect of the suit property. sadly, the documentation that were tendered showed that the suit property is still registered in the name of the deceased. 2. Other than showing title or entitlement, the appellant could also succeed on the plea of trespass by demonstrating that same had a right to immediate and exclusive possession of the suit property. however, there is no gainsaying that the 1st respondent is a brother of the appellant; and a son of the deceased. To this end, it is settled that the 1st respondent is no doubt a beneficially of the estate of the deceased and therefore holds beneficial rights over the suit property. 3. In the case of **Doshi v Chemutut & 7 others [2025] KECA 776 (KLR,** the court of appeal underscored the salient features that must be established before the plea of trespass can be proven. The court stated as hereunder: ***Trespass, as stated by this Court in the case of Charles Ogejo Ochieng v Geoffrey Okumu [1995] KECA 169 (KLR), is an injury to a possessory right, and therefore the proper plaintiff in an action of trespass to land is the person who has title to it, or a person who is deemed to have been in possession at the time of the trespass. As for the ingredients of trespass, the Court in William Kamunge Gakui v Eustace Gitonga Gakui (Civil Appeal 16 of 2013) [2014] KECA 39 (KLR) stated that trespass is a violation of the right to possession, and that a plaintiff must prove that he has the right to immediate and exclusive possession of the land. Justice Chemutut did not name Mr. Doshi as a defendant in the suit.*** 1. Was the appellant’s property rights violated? The appellant has complained vide the written submissions that the judgment of the learned trial magistrate has failed to protect his [appellant’s] property rights. Moreover, the appellant has ventured forward and invoked the provisions of **Article 40 of the Constitution, 2010.** 2. To my mind, the appellant herein has not acquired any lawful right and in respect of the suit property. The suit property still belongs to and is registered in the name of Bahati Kochore [deceased]. Insofar as the suit property forms part of the estate of the deceased, the appellant herein can not be heard to say that his property rights have been violated. Suffice it is to state that rights must first be acquired in accordance with the law. 3. In the case of **Nelson Kazungu Chai & 9 others v Pwani University College [2017] KECA 135 (KLR),** the court of appeal discussed the importance of acquiring a right to property. In addition, the court amplified that a right must be acquired before it can be protected**.** 4. The court stated thus: ***A right can only be protected when it exists in reality and not where it remains an illusion or a mere expectation. Right to property is not one of those rights that inhere to every human being upon birth. They are acquired in different ways after one comes into this world. One cannot acquire property rights over another’s property other than in a manner prescribed in law. In this case the appellants’ claim to the suit property was in our view merely aspirational or rhetorical. This is so both under our very progressive Constitution and also under International Law. Indeed other than call in aid International Law, learned counsel Dr. Khaminwa did not cite any specific instrument that the appellants can leverage on to elevate the appellant’s right to practice and enjoy their culture on the respondent’s property over the respondent’s rights under Article 40 of the Constitution. In the absence of any right under the doctrine of legitimate expectation and of any other valid colour of right, the trial court could not have arrived at any other finding. Our conclusion is that the learned Judge arrived at the right decision based on the evidence placed before him, and he cannot be faulted.*** 1. In my humble view, the appellant herein had not acquired any property right to the suit property. His claims to the suit property, remained *inchoate*, subject to the law of succession. **Conclusion:** 1. It is the appellant who had moved the lower court contending that the suit property had been gifted to him. it was therefore incumbent upon the appellant to place before the trial court credible evidence. Sadly, no evidence was tendered by the appellant. The learned trial magistrate was therefore not obligated to return a positive finding in favour of the appellant. In any event, there is no gain saying that assertions must be proven. 2. The appellant failed to prove his assertions. He did not call credible witnesses. His assertions remained on the level of bare allegations. Allegations cannot prove a case. **Final orders:** 1. Flowing from the foregoing analysis the final orders that commend themselves to the court are: * 1. ***The appeal be and is hereby dismissed.*** 2. ***The judgment of the learned trial magistrate dated the 09.09.2025 be and is hereby affirmed.*** 3. ***Costs of the appeal be and are hereby awarded to the respondents.*** 4. ***The costs in terms of clause [iii] shall be agreed upon and in default be taxed in the conventional manner.*** 2. It is so ordered. **DATED, SIGNED AND DELIVERED AT ISIOLO THIS 8TH DAY OF JUNE , 2026.** **OGUTTU MBOYA, FCIArb;CPM[MTI-EA]** **JUDGE** In the presence of: Court Assistant: Mukami/Zakayo Mr. Mamo Huka for the Appellant Mr. Odari for the Respondent