https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10702

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL APPEAL NO. E032 OF 2024** **JOHN MUTHOKA MULANDI………………………………………..APPELLANT** **VERSUS** **ROSE KAVELE MWANIA…………………………………………..RESPONDENT** **JUDGMENT** 1. This is an appeal against the judgment of the Honourable B.A. Luova delivered on 19 January 2024 in Machakos Small Claims Court Civil Suit No. E846 of 2023, which dismissed the Appellant's claim. 2. The Appellant sued the Respondent alleging that on 18 October 2022, the Respondent's goats trespassed onto his land, Parcel No. Kathonzweni/Kitise/1803, and destroyed his fruit trees. 3. The Appellant alleged that following intervention by the Area Assistant Chief and the Village Elder, the parties allegedly entered into a written agreement on 25 October 2022, under which the Respondent agreed to compensate the Appellant Kshs. 160,000, payable in two instalments of Kshs. 60,000 by 30November 2022 and Kshs. 100,000 by 30 April 2023. 4. The Respondent allegedly failed to honour the agreement, prompting the suit. 5. The Respondent denied liability, maintaining that her goats could not have entered the Appellant's fenced property and denying that she entered into or signed the compensation agreement. 6. She contended that any alleged damage required assessment by an agricultural officer before compensation could be discussed. 7. The trial court dismissed the claim, prompting the present appeal. 8. The Appellant contends that the learned trial magistrate erred by determining issues of trespass beyond the jurisdiction of the Small Claims Court, requiring an agricultural officer's assessment report despite the claim being founded on enforcement of a settlement agreement, failing to properly evaluate the evidence, relying on matters not pleaded or proved, thereby dismissing the claim. 9. The trial proceeded on documentary evidence pursuant to section 30 of the Small Claims Court Act. 10. The Appellant relied on his title deed, the written agreement dated 25 October 2022, and the evidence of five witnesses, namely: the former Area Assistant Chief, the Village Elder, and three eyewitnesses. 11. The Appellant submitted that their evidence was substantially consistent that they found twenty-two goats belonging to the Respondent feeding on the Appellant's fruit trees. 12. They testified that the Respondent's herdsman identified the goats as belonging to the Respondent, that the Respondent was contacted and later arrived at the farm, acknowledged ownership of the goats, assessed the damage, and removed the goats from the Appellant's property together with one of the witnesses. 13. The witnesses further testified that the Area Assistant Chief convened a meeting on 25 October2022, where the Appellant initially demanded Kshs. 670,000/- as compensation. 14. That, following negotiations, the parties agreed on Kshs. 160,000/-, payable in two instalments at the Respondent's request. 15. According to the Appellant's witnesses, the Area Assistant Chief reduced the agreement into writing, and it was signed by all those present, including the Respondent and her witness, Charles Mbaluka./- 16. The evidence of the Area Assistant Chief on the negotiations and execution of the agreement was corroborated by the Village Elder, John Bosco Muthiani Maulili and Joshua Mutinda Mbatha./- 17. The Respondent, Charles Mbaluka and her herdsman denied that the goats entered the Appellant's farm or caused any damage, relying on photographs showing that a chain-link fence and lockable gates enclosed the property. 18. They also referred to previous disputes between the parties to demonstrate strained neighbourly relations. 19. The Respondent maintained that she requested an assessment by an agricultural officer before any discussion on compensation and denied signing the agreement, while her witnesses similarly denied knowledge of the alleged settlement. 20. The Appellant submitted that he discharged the burden of proof under sections 107, 108 and 109 of the Evidence Act by proving his case on a balance of probabilities. 21. He argued that the consistent testimony of five witnesses established that the Respondent's goats trespassed onto his land, damaged his fruit trees, and that the Respondent acknowledged ownership of the goats and participated in resolving the dispute. 22. He further submitted that the Respondent's reliance on the existence of a chain-link fence did not displace the direct eyewitness evidence and that her insistence on an agricultural assessment implicitly acknowledged that damage had occurred. 23. Regarding the agreement, the Appellant submitted that the Area Assistant Chief, the Village Elder, Johnbosco Muthiani Maulili and Joshua Mutinda Mbatha consistently testified that the Respondent and her witness executed the agreement after negotiations. 24. He submitted that the Respondent herself admitted that all those persons attended the meeting and offered no explanation why the Area Assistant Chief, the Village Elder and the other independent witnesses would falsely implicate her. 25. The Appellant further submitted that neither the Respondent nor Charles Mbaluka alleged that the signatures appearing on the agreement were forged or reported any alleged forgery to the Directorate of Criminal Investigations. 26. The Appellant challenged the trial magistrate's finding that the Respondent merely signed an attendance list at the top of the document and that the substantive terms were inserted later. 27. He argued that this conclusion was unsupported by any pleading or evidence, as the Respondent's case was simply that she never signed the agreement. 28. He further submitted that no law requires agreements to be signed at any particular part of a document and that the magistrate improperly speculated on matters not raised by the parties. 29. The Appellant also argued that the Respondent's execution of her witness statement by thumbprint, while the agreement bore a handwritten signature, appeared to be an attempt to distinguish her signature from that appearing on the agreement. 30. The Appellant further submitted that once the parties voluntarily negotiated and executed the settlement agreement, there was no legal requirement for an agricultural officer's assessment because the parties had already compromised the dispute. 31. Relying on National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR, he argued that parties are bound by the terms of their agreements unless fraud, coercion or undue influence is pleaded and proved, none of which was alleged in this case. 32. He therefore maintained that the Respondent was in breach of the agreement by failing to pay the agreed compensation and urged the appellate court to set aside the judgment and enter judgment for Kshs. 160,000./- 33. The Respondent opposed the appeal and submitted that the adjudicator's judgment was sound, properly grounded on the evidence, and disclosed no error of law warranting interference. 34. She submitted that under the Small Claims Court Act, the appellate court's jurisdiction is limited to questions of law and relied on Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR and Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR on the distinction between matters of fact and matters of law. 35. The Respondent further submitted that the proceedings were conducted under section 30 of the Small Claims Court Act, requiring the court to determine the matter solely on the pleadings, witness statements and documentary evidence filed. 36. She argued that parties are bound by their pleadings and that the Appellant could not depart from his pleaded case through submissions or evidence inconsistent with the pleadings. 37. In support, she relied on Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR and Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR. 38. The Respondent also submitted that the Appellant failed to satisfy the requirements of Rule 5(2)(c) of the Small Claims Court Rules and that the adjudicator correctly dismissed the claim on that basis. 39. While maintaining that she never agreed to compensate the Appellant before the Area Assistant Chief, she submitted that although she did not dispute the signature appearing on the document, the concluding paragraph containing the alleged agreement appeared to have been inserted after the signatures had been appended. 40. She further argued that the document could not be treated as an official agreement prepared by the Area Assistant Chief because it bore neither his official stamp nor signature. 41. According to the Respondent, once she challenged the authenticity of the document, the Area Assistant Chief failed to file any supplementary statement clarifying the alleged discrepancies. 42. The Respondent further submitted that the signatures appearing at the top of the document did not correspond with the substantive text appearing below and that the trial magistrate correctly found that the document bore the appearance of an attendance register rather than a binding agreement. 43. She relied on Achuku v South Nyanza Sugar Company Ltd [2025] KEHC 6762 (KLR) and William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526 to argue that the Appellant had not demonstrated that the trial court relied on irrelevant considerations or misdirected itself in law. 44. She also relied on Ngang'a & Another v Owiti & Another (2008) 1 KLR (EP) 749 for the proposition that submissions are not evidence and cannot replace proof. 45. Finally, the Respondent submitted that the Appellant failed to discharge the burden of proof under sections 107 and 108 of the Evidence Act and urged the Court to dismiss the appeal with costs. 46. I have considered the Memorandum of Appeal, the record of appeal, the rival submissions by the parties, and just like the adjudicator, I have identified two issues for determination, viz: whether there is an agreement between the parties that is binding on the Respondent and whether the Appellant proved his case. 47. Being an appeal from the Small Claims Court, the court's jurisdiction is limited to questions of law. 48. The Appellant has alleged that the adjudicator determined issues separately from the case pleaded and that she exercised a jurisdiction she did not have, that is, jurisdiction to determine matters reserved for the Environment and Land Court. I am satisfied that these are issues of law that properly ground the appeal. 49. The adjudicator determined that the document that the Appellant presented before court as an agreement was not an agreement but the Assistant Chief’s record, more specifically an attendance register. 50. The adjudicator chose to believe the Respondent’s account over that of the Appellant and his witnesses, who included the Assistant Chief. 51. The adjudicator justified her decision on several observations: she wondered why, at the top of the document, it was worded “to summon accused on Tuesday 25/10/22 at 8.00 a.m), why, she wondered, would the parties who were meant to witness the agreement sign before the agreement itself is recorded and fail to sign after the agreement has been recorded? 52. The adjudicator concludes that those glaring ambiguities led her to conclude that the document was an attendance register for the meeting at the Chief’s office, which has some writings added without the concurrence of the Respondent, and that is why the agreement was not executed at the bottom as is expected. 53. The Adjudicator concluded that the document was not an agreement capable of being enforced against the Respondent. 54. Before I delve into the document, I wish to state that I agree with the Appellant that the dispute before the Adjudicator was not one for damages arising from trespass to property, a jurisdiction in which that court is deficient in but one of enforcement of an alleged agreement. 55. The considerations of the statement of claim and the relief sought before the trial court make that abundantly clear. 56. I will therefore confine myself to that sole issue. As a first appellate court, this Court is required to re-evaluate the evidence and draw its own independent conclusions while bearing in mind that it did not have the advantage of seeing or hearing the witnesses. 57. The starting point is that there is a document adduced as evidence by the Appellant/Claimant in support of his claim that there was an agreement between the parties for payment of Kshs 160, 000/- in two instalments for damage occasioned to the Appellant by the Respondent’s goats on the Appellants' property. 58. The author of the document testified before court to his authorship and testified to the authenticity of its contents. He wasn’t the sole witness, but four other witnesses gave evidence on similar lines, all of whom were in attendance when the document was made and reduced into writing. 59. The document on the face of it states exactly what the Appellant is alleging, that is, the Respondent agreed to pay the Appellant kshs 160,000/- in two instalments in consideration of the damage suffered by the Appellant, occasioned by trespass into the Appellant’s property by the Respondent’s goats. 60. The document has the signature of all the persons said to have attended the meeting, their respective national identification numbers and their names written in full. 61. The witnesses who testified in court all gave compelling evidence on the circumstances that led to the meeting where the alleged document was authored. At no point in the proceedings did the Respondent deny signing the document. 62. I have stated enough to demonstrate that the Appellant at that point has adduced sufficient evidence which, if not successfully rebutted by the Respondent, would entitle him to the relief sought. In short, the onus of proof had shifted from the Appellant to the Respondent. 63. The Respondent called only one witness apart from herself who was in attendance at the meeting, who agreed with the Respondent’s version of the facts, that is, there was no agreement between the parties for the payment of kshs 160,000/-. 64. The Respondent’s witness testified that there was a need for an assessment before such agreement could be made on the issue of compensation. 65. The Respondent suggested that the part providing for the terms of the agreement may have been added after the meeting and that may explain why it was below the signatures. 66. At this stage of consideration, I note that whereas the Appellant had discharged the initial burden of proof, the Respondent’s onus is now dependent on believability between the version of facts presented by her and her one witness, against that of the Appellant and his four witnesses. I remind myself that the case is to be determined on the preponderance of probability, what I would christen the 50 plus one percent rule, meaning whoever pushes the needle beyond the 50 % mark wins the case. 67. Looking at the totality of all the circumstances surrounding the case as a whole, I find the testimony of the Assistant Chief and that of the Appellant more probable than that of the Respondent for the following reasons; 68. There is no reason whatsoever that I can glean from all the evidence on record in this matter that would in the slightest way justify any animus by the Assistant Chief towards the Respondent that would make him fabricate an agreement in the terms set out in the document. 69. I noted keenly from the record that when the Respondent went to the Assistant Chief’s office at the first instance of summoning, the Assistant Chief sent her away to come with an elder of her choice, which one would hardly expect one with ill motive to do. 70. I also notice the Assistant Chief’s account of him sending someone to attend to the dispute on his behalf when he was otherwise engaged in official business is indicative of his dispassionate disposition on the matter, which one would hardly expect from one who’d falsify a document in the manner suggested by the Respondent. 71. I observe from the Assistant Chief’s written statement and general conduct of the entire dispute that he is structured and methodical in his dealings, which would explain the very wording that the adjudicator found puzzling in the document. 72. My reading of the document is that it was like a ledger that the Assistant Chief kept of the dispute; he begins by recording the complaint and the steps he was taking to resolve it. 73. That explains the words on the top of the page being the first entry on the matter *“ to summon accused on Tuesday 25/10/22 at 8.00 a.m),”* 1. I note that that was recorded on 19/10/25, which means it preceded the events of 25/10/25. 2. And true to that, the evidence on record confirms that the Respondent was summoned by the Assistant Chief as indicated. 3. On 25/10/25, there were oral discussions on the matter as evidenced by the testimony of the various witnesses before an agreement was reached: that would explain the listing down of those in attendance, the taking down of their national identification card numbers and signatures before recording the agreement as discussed. 4. It is to be appreciated that these are lay people not educated on the nuances of contract drafting: to wish away their written agreement based on want of form, which in any event is neither standardized nor legislated, would not be doing justice to the case. 5. It is to be appreciated that the document was not authored by the Appellant, but by a neutral third party; the neutrality of the third party was never an issue and was never challenged at any stage of the proceedings. 6. What of the other side? I find the account by the Respondent less probable and less believable between the two, for the following reasons. 7. That considering the totality of the evidence adduced, at no point in time was liability for the damage caused by her goats in issue, yet she introduces it as such in the case. 8. One would not insist on getting an assessment if one wasn’t past the issue of liability. 9. Even her own witness testified in his statement that he advised her to get an assessment, which is indicative that the parties were past the issue of liability and that what they were engaged in during the meetings before the Assistant Chief was for purposes of agreeing on compensation. 10. The Respondent throughout the proceedings did not dispute her signature and that of her witness. 11. The Respondent’s testimony that she had filed a case against a son of the claimant/Appellant after he attacked her goats and cut them with a panga and that they have not had a good neighbour relationship with the claimant/Appellant serves to explain why the Appellant wouldn’t agree with the Respondent unless, it was in writing, why the Appellant reported to the Assistant Chief and why they got third parties involved in the dispute between them and more significantly why he would do so when he had caught the Respondent in the act ( goats in his property) as narrated in the case. 12. It is equally apparent that the source of their feud was the goats, which I may venture to add may explain the presence of a perimeter fence in the Appellant’s property. 13. I agree with the Appellant’s submission that the issue of the agreement being a record of minutes did not come from either party and was improperly introduced by the Adjudicator. 14. The upshot is that I find that the Respondent failed to dislodge the evidential burden of proof that had shifted to her upon production of proof by the Appellant. 15. The totality of the circumstantial evidence adduced in the case leads to one conclusion that the parties met to discuss compensation and they agreed on the same. The agreement was reduced into writing by the Assistant Chief and was immortalised by both parties in ink. 16. Consequently, I find that the Appeal succeeds; the Appellant proved the existence of an agreement between himself and the Respondent as alleged in the claim before the Honourable Adjudicator. I therefore order as follows; 1. The Appeal is allowed: 2. The judgment of the Honourable B.A. Luova delivered on 19 January 2024 in Machakos Small Claims Court Civil Suit No. E846 of 2023 is hereby set aside and substituted with an order that; 3. Judgment be and is hereby entered for the claimant against the defendant in Machakos Small Claims Court Civil Suit No. E846 of 2023 as prayed. 4. The Appellant shall have costs of the Appeal. Delivered via Microsoft Teams this 16th day of July 2026 at Mombasa High Court **Emmanuel Bitta** **Judge of the High Court** Delivered in the presence of C/A Nechesah Singi for Respondent Munyao for Appellant