[2025] KEELC 26 (KLR)

Kirikoni Investments Limited & another v Ngene (Environment and Land Appeal E021 of 2024) [2025] KEELC 26 (KLR) (16 January 2025) (Judgment)

Neutral citation: [2025] KEELC 26 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment and Land Appeal E021 of 2024

JO Mboya, J

January 16, 2025

Between

Kirikoni Investments Limited

1st Appellant

Joseph Kibiru Njuguna (Suing on Behalf of the Estate of Philip Njuguna Waruth)

2nd Appellant

and

Jane Wangari Ngene

Respondent

(Being an appeal from the judgment and orders of the Chief Magistrate’s Court at Nairobi (Milimani) of the Hon. Wendy Micheni (CM) dated 16. 2.2024 in Civil Suit 4955 of 2015)

Judgment

Introduction and Background: 1. The Appellants herein are aggrieved and dissatisfied with the judgment and decree rendered/delivered on the 16th day of February 2024. In this regard, the Appellants have proceeded to and filed a memorandum of appeal dated the 22nd day of February 2024.

2. The Memorandum of appeal under reference has highlighted various/ diverse grounds of appeal. For ease of appreciation, the Appellants have highlighted the following grounds:i.That the Hon. Magistrate erred in act and law in holding that a minor could be given a letter of allotment in his name the implication thereof being that a minor has the capacity to enter into a contract.ii.That the Honourable magistrate erred in fact and law in holding that the Respondent's letter of allotment was authentic and therefore bestowed ownership of the suit property on the respondent.iii.That the Honourable magistrate erred in fact and law in finding that the respondent was the registered owner of the suit property by dint of Section 113 of the Registered Land Act (repealed) and Section 27 of the Land Act No. Land Act No. 6 of 2012. iv.That the Honourable magistrate erred in fact and in law in holding that the letter of allotment held by the respondent amounted to the registration of an interest in the lane under section 113 of the Registered Land Act (repealed) and Section 27 of the Land Act No. Land Act No. 6 of 2012.

3. The subject appeal came up for directions on 25. 9.2024 whereupon the advocates for the parties confirmed that the record of appeal was complete. To this end, the court proceeded to and gave directions pertaining to and concerning the hearing and disposal of the appeal.

4. In particular, the court ordered and directed that the appeal be canvassed and disposed of vide written submissions. Furthermore, the court ventured forward and circumscribed the timelines for the filing and exchange of the written submissions.

5. Arising from the directions of the court, the Appellants filed two [2] sets of written submissions dated 28. 11. 2024 and 13. 12. 2024, respectively. The Respondent filed written submissions dated 5. 12. 2024. For coherence, the three [3] sets of written submissions form part of the record of the court.

Parties submissions: a. Appellants submissions: 6. The appellants filed two [2] sets of written submissions dated 28. 11. 2024 and 13. 12. 2024, respectively. The Appellants referenced the pleadings filed by both parties and the evidence tendered before the trial [Chief Magistrate’s] court.

7. In addition, the Appellants proceeded to and highlighted five [5] salient issues for consideration and determination by the court. Firstly, learned counsel for the Appellants submitted that the learned trial magistrate erred in fact and law in finding and holding that a letter of allotment could issue and be granted in favour of a minor. In this regard, it was contended that a letter of allotment constitutes an offer and because same is an offer, such an offer can only be made to and in favour of an adult and not a minor.

8. Furthermore, learned counsel for the appellants has submitted that the impugned letter of allotment was allegedly issued to and in favour of John Kuria {PW 3} when same {PW 3} was aged 14 years. To this end, learned counsel for the Appellants has submitted that the purported letter of allotment was therefore illegal, unlawful and void.

9. To buttress these submissions that a letter of allotment cannot issue to and in favour of a minor, learned counsel for the appellants has cited and referenced various decisions including Reuben Opile Wilson vs Linet Adhiambo Amolo (2022) eKLR and Samuel Mbugua Gachuhi vs City Council of Nairobi and 2 others (2008) eKLR.

10. Secondly, learned counsel for the appellants has submitted that the learned trial magistrate also erred in finding and holding that a letter of allotment like the one tendered and produced by the Respondent conferred legal rights and or interest to and in favour of allottee. In this regard, it was submitted that a letter of allotment merely constitutes an offer by the Government to the allottee. Additionally, it was contended that a letter of allotment by itself does not constitute title to land. In this regard, learned counsel posited that it was therefore erroneous for the learned trial magistrate to find and hold that the Respondent was the lawful owner /proprietor of the suit property.

11. Thirdly, learned counsel for the Appellants submitted that the learned trial magistrate erred in not finding and holding that the Appellants are the lawful owners and proprietors of the suit property. In this regard, learned counsel for the appellants invited the court to take cognizance of the lease dated the 27th day of June 2012 that was entered into and executed by the 1st appellants and the City Council of Nairobi {now defunct}.

12. Fourthly, learned counsel for the appellant has submitted that it was erroneous for the learned trial magistrate to find and hold that the lease in favour of the appellant was fraudulent yet the Respondent had failed to tender and produce any plausible and/ or cogent evidence to demonstrate fraud. In particular, it was submitted that a party who propagates a claim based on fraud is called upon not only to particularly plead fraud, but to specifically prove fraud. In any event, learned counsel for the appellants added that proof of fraud must be demonstrated by production of specific evidence.

13. To vindicate the submissions that the Respondent had neither established nor proved fraud, learned counsel for the appellants has cited and referenced, inter alia, the case of Ndolo vs Ndolo (2008) 1 KLR 742, which underpins the position that fraud must not only be particularly pleaded but must be specifically proved to the requisite standard of proof.

14. Fifthly, learned counsel for the Appellants has submitted that the appeal before court is competent and thus ought to be heard and disposed of on merits. In particular, it has been submitted that though the proceedings in the subordinate court were conducted by the firm of Ikua and Co. Advocates, the said law firm thereafter converted into a partnership culminating into the filing of a notice of change, which was filed in respect of the instant Appeal.

15. Nevertheless, it was submitted that the despite the filing of the notice of change of advocates, the matter herein is still being prosecuted by the same advocate. In this regard, learned counsel has submitted that it was therefore not obligatory to file a consent alongside the notice of change of advocate in the manner posited by Learned Counsel for the Respondent or at all.

16. Additionally, learned counsel for the appellants has submitted that the question of the filing of the notice of change of advocates was addressed by the court prior to the issuance of the directions. In this respect, it has been submitted that the issue of the notice of change and the validity thereof cannot be revisited at this stage, same having been dealt with vide the proceedings of the court made on the 11th day of November 2024.

17. Other than the foregoing, learned counsel for the appellants also submitted that the issue being raised and canvassed by the Respondents herein is a procedural question and technicality. In any event, it has been contended that such a procedural technicality ought not to be deployed to defeat the rights of the appellants to be heard in accordance with the provisions of Article 50 of the constitution 2010.

18. Finally, learned counsel for the Appellants has submitted that it was equally erroneous for the learned trial magistrate to have found and held that a minor can be registered to own land. To this end, it was submitted that a minor lacks the legal capacity to hold interest in land and that such interests [if any] can only be held by a minor albeit through a trustee and not otherwise.

19. Premised on the forgoing submissions, learned counsel for the appellants has submitted that the impugned judgment by the learned trial magistrate is replete with several errors of commission and omissions. In this respect, the court has been invited to find and hold that the appeal before hand is merited and thus ought to be allowed.

b. Respondent’s submissions: 20. The Respondent’s filed written submissions dated 5th day of December 2024; and wherein the Respondent raised five [5] salient issues for consideration and determination by the court. First and foremost, the Respondent contended that the appeal beforehand is incompetent and thus same ought to be struck out. To this end, it was submitted by counsel for the respondent that the appeal herein arises from the proceedings of the Chief Magistrate’s court wherein the advocate who appeared for the appellants {who were the defendants} was the firm of M/s Ikua and Partners Advocates.

21. Nevertheless, learned counsel for the Respondent has submitted that the record of appeal beforehand has been filed/lodged by the firm of M/s. Ikua and Nyambane advocates, which is a different law firm from the one which acted for the appellants in the lower court. In this regard, counsel contended that it was incumbent upon the incoming {new advocates} to seek for and obtain leave of the court before filing a notice of change. However, it was posited that no such leave was ever sought for and or obtained.

22. On the other hand, learned counsel submitted that it was also incumbent upon the new/incoming advocate to procure and obtain a consent from the outgoing advocates and thereafter file the consent alongside the notice of change of advocates.

23. Be that as it may, learned counsel for the Respondent has submitted that the new/incoming advocate proceeded to and filed a Notice of change of advocate and thereafter file the record of appeal, albeit without complying with the mandatory provisions of Order 9 Rule 9 of the Civil Procedure Rules, 2010.

24. Arising from the foregoing, learned counsel for the Respondent has therefore invited the court to find and hold that the record of appeal and by extension the appeal beforehand, is incompetent on account of having been filed by a stranger; and thus ought to be struck out.

25. Secondly, learned counsel for the Respondent has submitted that the learned trial magistrate was right in finding and holding that a minor can own and be registered as the owner/proprietor of a landed property. Nevertheless, counsel submitted that such registration is to be undertaken on behalf of a minor.

26. Additionally, learned counsel for the Respondent submitted that the issuance of a letter of allotment and by extension the registration of a landed property in the name of a minor cannot be rendered void merely and on the basis of the allottee/registered owner, being a minor.

27. In support of the foregoing submissions, learned counsel for the Respondent cited and referenced various provisions including section 113 of the Registered Land Act, Chapter 300, Laws of Kenya {now repealead}: and sections 27 and 47 of the Land Registration Act 2012, respectively.

28. Arising from the foregoing submissions, learned counsel for the Respondent has therefore submitted that the finding and holding by the trial magistrate that the issuance of the letter of allotment to and in favour of PW 3, when same {PW 3} was a minor does not render the letter of allotment unlawful.

29. Thirdly, Learned counsel for the Respondent has submitted that the finding[s] and holding by the learned trail magistrate that the Appellants letter of allotmenet and by extension the lease which was relied on by the appellant[s] was fraudulent is well grounded and sound in law.

30. Consequently and in this regard, learned counsel submitted that the letter of allotment and the lease relied upon by the Appellant[s] were disowned by PW 2, who is a witness who came from the City County Government of Nairobi.

31. It was the further submissions by learned counsel for the Respondent that if the documentation being relied upon and propagated by the appellants are not traceable to the city county of Nairobi, then there is basis to find and hold that the impugned documents were not only fraudulent, but also illegal. In this regard, learned counsel for the Respondent submitted that the finding[s] by the trial magistrate was therefore correct.

32. Thirdly, learned counsel for the Respondent has also submitted that even though the appellants contended to be the registered owners of the suit property, the appellants did not tender and or produce before the court any credible evidence to underpin their claim/entitlement to the suit property. In this regard, counsel contended that the appellants did not establish and or demonstrate their right to and in respect of the suit property.

33. Fourthly, learned counsel for the Respondent has submitted that the learned trial magistrate properly evaluated and appraised the evidence on record and thereafter correctly found that the suit property lawfully belongs to the Respondent. Furthermore, counsel submitted that having found and held that the suit property lawfully belonged to the Respondent, the learned magistrate was at liberty to proceed and award general damages in favour of the respondent.

34. Further and in addition, it was submitted that the award of general damages for trespass in the sum of Kshs.500,000/= only, was well within the discretion of the learned trial magistrate. In this regard, it has been submitted that the contention by the appellants that the award of damages was erroneous is misleading and premised on misapprehension/ misconception of the Law.

35. Pertinently, learned counsel for the Respondent has submitted that by virtue of being the owner of the suit property, the Respondent was entitled to an award of damages, in the event of proven trespass. To this end, learned counsel has invited the court not to interfere with the award of damages.

36. Finally, learned counsel for the Respondent has submitted that the Respondent duly pleaded and thereafter proved fraud to the requisite standard of proof. In any event, it was submitted that the documentation relied upon by the appellants herein could not be traced to the allocating/allotting authority, namely, the City County Government of Nairobi. Consequently and in this respect, Learned Ccounsel submitted that the fact that the documentation by the appellants could not be traced to the allocating authority suffices to demonstrate fraud and illegality.

37. Arising from the foregoing submissions, learned counsel for the Respondent has therefore implored the court to find and hold that the appeal on behalf of the Appellants is devoid of merits and thus same {appeal} ought to be dismissed with costs.

c. Issues for determination: 38. Having reviewed the entire record of appeal, the proceedings and judgment of the trial court and upon taking into consideration the submissions filed by the respective parties, the following issues emerge [crystalize] and are thus worthy of determination;i.Whether the appeal beforehand is incompetent for want of compliance with the provisions of order 9 rule 9 of the civil procedure rules, 2010; or otherwise.ii.Who between the Appellants and the Respondents is the legitimate owner of the suit property.iii.Whether the finding[s] by the learned trial magistrate pertaining to fraud has against the appellants was well grounded and legally tenable.iv.Whether the award of general damages to and in favour of the Respondent was lawful and legitimate.d.Jurisdiction of posture :

39. The Appeal beforehand is a first appeal arising from the judgment and decree of the Chief Magistrates’ court. By virtue of being a first appeal, it suffices to state that the jurisdiction of this court to interfere with the judgment and decree of the magistrates’ court is circumscribed and limited under the law. Notably, the judge does not have a freehand and or unfettered liberty to interfere with the judgment and decree of the magistrate’s court.

40. Put differently, the jurisdiction of the judge to interfere with the judgment and decree of the magistrate’s court is limited to instances where the decision being challenged was arrived at without due regard to the evidence on record: arrived at without proper assessment of the law; arrived at in contravention of the established principles of the law or better still, where the decision is perverse to the evidence on record.

41. The circumscribed nature and scope of the jurisdiction of the first appellate court while dealing with an appeal from the magistrate’s court has been elaborated upon in a plethora of decisions. To this end, it suffices to cite and reference the holding of the court in the case of Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."

42. Likewise, the extent and scope of the Jurisdiction of the first appellate court was also elaborated upon in the case of Abok James Odera T/A A.J Odera & Associates versus John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, where the court held thus;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”

43. Again, in Peters versus Sunday Post Limited (1958) EA 424, the Court of Appeal for Eastern Africa, considered the scope of the jurisdiction of the appellate court while entertaining an appeal. For coherence, Sir Kenneth O’ Conner, P; stated as follows 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”

44. Duly guided by the exposition of the law and the ratio decidendi espoused/ highlighted in the decisions cited in the preceding paragraphs, it is now apposite to revert to the instant matter and consider the various issues highlighted for determination.

e. Analysis and determination : Issue Number One [1]: Whether the appeal beforehand is incompetent for want of compliance with the provisions of Order 9 Rule 9 of the Civil Procedure Rules or otherwise. 45. Learned counsel for the Respondent has submitted that he memorandum of appeal filed herein was drawn and filed by M/s Ikua and partners advocates while record of appeal is drawn and filed by the firm of M/s. Ikua and Nyambane Partners advocates. In this regard, Learned counsel for the Respondent has submitted that the firm that filed the memorandum of appeal is separate and distinct from the firm that filed the record of appeal.

46. Owing to the fact that there is a distinction between the firm that filed the memorandum of appeal and the one that lodged the record of appeal, learned counsel for the Respondent submitted that that distinction renders the entire appeal incompetent.

47. Additionally, learned counsel for the Respondent has submitted that even though the firm of M/s Ikua and Nyambane Partners advocates, thereafter moved and filed a Notice of change of advocate, the impugned notice of change of advocate was filed without leave of the court.

48. Similarly, it has been contended that the filing of the Notice of change was not preceded by a consent executed between the outgoing advocate[s] and the incoming advocate[s] in the manner provided for vide Order 9 Rule 9 of the Civil Procedure Rules,2010.

49. Premised on the foregoing, learned counsel for the Respondent has therefore invited the court to find and hold that the firm of advocates who filed the record of appeal is therefore a stranger to the proceedings. Consequently and in this regard, Learned counsel has implored the court to strike out the appeal.

50. On behalf of the appellants, it has been submitted that the firm of M/s Ikua and Nyambane Partners filed the notice of change of advocates in accordance with the law. In particular, it has been submitted that there was no basis for the incoming advocate to seek for and obtained leave before filing of a notice of change of advocate in so far as there is no judgment so far entered in respect of the appeal before hand.

51. Additionally, learned counsel for the appellants has also submitted that the provisions of Order 9 Rule 9 of the Civil Procedure Rules, 2010; which have been cited and highlighted by learned counsel for the R espondent ought not to be deployed to hamper the right of a party to access and partake of justice. In this respect, counsel has invited the court to endeavor to and render substantive justice as opposed to relying on procedural technicalities. Instructively, Learned Counsel for the Appellants has referenced the provisions of Article 159[2][d] of the Constitution, 2010.

52. Having considered the rival submissions by and on behalf of the parties I beg to take the following position.

53. Firstly, it is common ground that the appeal before hand was filed by the firm of M/s Ikua and Partners advocates. Pertinently, it is the same Law firm who had acted for the appellants in the subordinate court.

54. In so far as the said Law firm of M/s Ikua and Partners were the ones who acted for the appellants in the subordinate court, the said firm was at liberty to proceed and file the memorandum of appeal for and on behalf of the appellants. For good measure, the memorandum of appeal filed by the firm of M/s Ikua and Partners advocates, was filed by a recognized agents for and on behalf of the appellants. [See the provisions of Order 9 Rule 1 of the Civil Procedure Rules, 2010]

55. At any rate, it is imperative to state and underscore that an advocate who was retained in the primary suit,[ in this case, the suit before the suit magistrates court] is deemed to be the advocate for the designated party for all purposes including an appeal, if any, filed. [see Order 9 Rule 13 of the Civil Procedure Rules, 2010]

56. Secondly, there is no gainsaying that no judgment has since been entered in respect of the appeal. Pertinently, a judgment was only entered in respect of the suit/matter before the chief magistrate’s court. Nevertheless, there is no gainsaying that the suit before the Chief Magistrate’s court is a separate and distinct cause from the appeal before hand.

57. To the extent that the appeal before hand is a separate and distinct cause from the suit/matter giving rise to same, the Appellants advocates herein were at liberty to file and serve a notice of change of advocates without seeking for and or obtaining leave of the court. Notably, the provisions of Order 9 rule 9 of the civil procedure rules, 2010; which have been cited and referenced by the Respondents herein do not apply to the obtaining circumstances.

58. In this respect, it is imperative to take cognizance of the holding of the Court in the case of Waterfront Holdings Limited v Kandie & 2 others (Civil Appeal 88 of 2019) [2023] KECA 1223 (KLR) (6 October 2023) (Judgment); where the Court of Appeal stated and hels thus:We have considered the issues raised in this appeal. Before we deal with the merits of this appeal, the 1st Respondent has raised two issues touching of the competency of the appeal. The first issue is that that there is no appeal pending before the Court as the Appellant did not comply with the mandatory provisions of Order 3 Rule 9 of the Civil Procedure Rules, 2010 since the current advocates for the Appellant, Ms Gikandi & Co. Advocates came on record after judgement had been entered and neither sought leave of the court to do so nor obtained the consent of the advocates who were on record in the High Court.It is however not contended that there was another firm of advocates on record before this Court prior to the said firm of Gikandi & Co. Advocates coming on record. This Court has had an occasion to deal with that issue in Bahati Temo & Others v. Swafiya Abdalla & Another Mombasa Court of Appeal Civil Application No. E005 of 2019 where the decision by Deverell, JA in Shah v. Kenbox Industries Ltd [2005] 1 KLR 822 was cited in which he expressed himself as hereunder: “It is doubtful whether a single judge can make a finding that notices of appeal or other documents listed in rule 51(2), which have not been struck out as being invalid, are nevertheless to be treated by him to be nullities when acting as a single judge for the purposes of an application for extension of time…Whereas there is a specific reference in rule 5(2)(a) and (b) to the necessity for the existence of a Notice of Appeal having been given or lodged, there is no such requirement expressed in rule 4. It would therefore seem that there is no reason why the Judge should consider himself as lacking jurisdiction as a single judge to make orders extending time for the filing of a Notice of Appeal in a situation where either no Notice of Appeal has yet been filed or where the Notice of Appeal, which has been filed is defective…Rule 22 of the Court of Appeal Rules deals with appearances. There is a distinction between “appearance” and “signing”. The former deals with the presence in Court or chambers at the hearing of an appeal or application while the latter deals with execution of formal documents such as notices of appeal and notices of motion etc. There is no provision in the Rules importing into the Court any of the Civil Procedure Rules relating to change of advocates. There is no reference in rule 22 or 23 to the advocate on record in the Superior Court having to be the advocate for the appellant for the purpose of signing the Notice of Appeal or any application in relation to the appeal until changed in accordance with rule 23…Rule 76(2) does not deal with the authority to sign but only deals with the address for service of the notice of Appeal. The rule expressly states that the address for service may be that of an advocate who has not been retained for the purposes of the appeal. The expression “be considered the advocate of the party” enables the other party to treat the former advocate as still having authority to take any steps in relation to the matter. But these words do not prevent a new advocate who has been authorised and instructed by his client so to do and in respect of whom there has been compliance with Order 3 (9A), from validly performing that task. Provided that he has actual authority then his authorised actions are not rendered void by this provision. He has signed the notice of appeal “on behalf of the appellant” which is the only relevant requirement in rule 74(6).Therefore the Notice of Appeal and a Notice of Motion in the Court of Appeal can be signed by any advocate who has, as a matter of fact, the authority of the intended appellant to sign the notice irrespective of whether or not the advocate is or is not on the record, or considered the advocate of the party in the High Court.”

59. In the same case, this Court adopted with approval of the decision by Musinga, JA in Mary Nchekei Paul v Francis Mundia Ruga [2019] eKLR where the Learned President of this Court expressed himself as hereunder:“This Court has its own rules of procedure, the Court of Appeal Rules, and the cited provisions of the Civil Procedure Rules are therefore inapplicable. Rule 23 of the Court of Appeal Rules that addresses the issue of change of advocate states as follows:-“SUBPARA (1)Where a party to any application or appeal changes his advocate or, having been represented by an advocate, decides to act in person or, having acted in person, engages an advocate, he shall, as soon as practicable, lodge with the Registrar a notice of the change and shall serve a copy of such notice on the other party or on every other party appearing in person or separately represented, as the case may be.(2)An advocate who desires to cease acting for any party in a civil appeal or application, may apply by notice of motion before a single Judge for leave to so cease acting, and such advocate shall be deemed to have ceased to act for such party upon service on the party of a certified copy of the order of the judge.” M/s G.M. Wanjohi Advocates never acted for the applicant in this matter, they represented her before the trial court. The application before me was filed by C.M. King’ori Advocates. It is a fresh application and so the said advocates are properly on record. If the application had been filed by M/s G.W. Wanjohi Advocates then M/s C.M. King’ori Advocates would have been required to comply with rule 23 of the Court’s Rules but that is not the case.”

60. The Court concluded that:“Though these decisions were made by the single judges of this Court we hold the view that the opinions expressed therein is the correct legal position. An advocate who has been instructed to commence legal proceedings in this Court does not require to file a notice of appointment of advocate or notice of change of advocates the proceedings herein being fresh proceedings which are commenced under the Court of Appeal Rules, just like the advocate filing a plaint or any other originating pleadings in the High Court.”

61. Furthermore, the Court ventured forward and stated thus:The rationale for the reluctance by this Court to apply the Civil Procedure Rules hook, line and sinker was expressed by this Court in Rafiki Enterprises Ltd. v Kingsway Tyres & Automart Limited Civil Application No Nai 375 of 1996 where the Court expressed itself as hereunder: “The provisions of the Civil Procedure Act do not apply to the Court of Appeal and the reason(s) for that is not difficult to understand. The Court of Appeal has its own rules of procedure and those rules cater for virtually all situations which may arise during the hearing of an appeal. It is accordingly not necessary for the Court of Appeal to have recourse to the provisions of the Civil Procedure Act and the rules made thereunder. Nor can the provisions of section 3 of the Appellate Jurisdiction Act be of assistance to the applicant. Those provisions merely set out the jurisdiction of the Court of Appeal and cannot provide the basis for making the kind of orders the applicant seeks from us.”

62. In the premises and borrowing from the ratio decided in the foregoing decision, I come to the conclusion that the Appeal herein is a separate and distinct cause/ matter, separate from the proceedings in the Chief Magistrates Court and hence there was no need to seek for and obtain Leave of the Court before filing/ lodging the Notice of Change of Advocates.

63. Thirdly, the issue and necessity to file a Notice of change of advocates by and on behalf of the Appellants arose in the course of the proceedings. In particular, the court considered the request for the filing of a notice of change of advocate to reconcile the proceedings on record. For good measure, the court took full cognizance of the fact that the memorandum of appeal was filed by the firm of M/s Ikua and Partners Advocates; whereas the record of appeal was filed by the firm of M/s Ikua and Nyambane Partners Advocates and thus creating a level/ degree of confusion.

64. Owing to the observations by the court [details in the preceding paragraphs] learned counsel for the appellants proceeded to and filed a notice of change of advocate. Instructively, the request/application by the learned counsel for the appellants to file and serve a notice of change was not opposed by the Learned Counsel for the Respondent. In this regard, it suffices to underscore that the Respondent acceded to the application and the consequential orders made by the court.

65. In my humble albeit considered view, if learned counsel for the Respondent was aggrieved by the orders of the court which allowed the appellants to file and serve a notice of change of advocates in the instant matter, then it behooved learned counsel for the Respondent to appeal against [sic] the said orders. Nevertheless, there is no gainsaying that no appeal was ever filed against the orders of the court issued on the 15. 10. 2024, which underpin the filing of the Notice of change of the advocates.

66. Having not filed any appeal against the orders and directions that allowed the filing of the notice of change of advocates, the Respondent herein cannot now turn around and contend that the appeal before hand is incompetent. Quite clearly, the objection by the learned counsel for the Respondent is not only misconceived, but same is an afterthought.

67. Thirdly, it also worthy to recall that learned counsel for the Respondent participated in the taking of directions as pertains to the appeal beforehand. In any event, it is not lost on the court that learned counsel for the Respondent even supplied/availed legible copies of pleadings and documents to the advocates for the appellants to facilitate the compilation of the record of appeal.

68. Additionally, it is also important to point out that when the instant matter came up for directions on 11. 11. 2024, learned counsel for the Respondent intimated to the court that the record of appeal was complete. In addition, counsel stated that same {counsel for the Respondent} was not taking any objection as to the jurisdiction of the court as pertains to hearing the appeal.

69. In my humble view, if learned counsel for the Respondent was truly convinced and convicted that the appeal was incompetent, then it behooved learned counsel for the Respondent to take the objection prior to and before the giving of directions. [see the provisions of order 42 rule 13 (2) of the civil procedure rules 2010]

70. Suffices to underscore that no such objection was taken. In this regard, the Respondent herein cannot now be heard to revert and contend that the appeal is incompetent. Instructively, learned counsel for the Respondent forfeited the right to take such an objection. Simply put, the right to canvass and raise the objection based on the competence of the appeal was lost in accordance with the provisions of Order 42 Rule 13[2] of the Civil Procedure Rules, 2010.

71. Fourthly, it is also imperative to draw the attention of learned counsel for the Respondent to doctrines of estoppel, acquiescence and waiver. By taking part in the directions of the court on the 11. 11. 2024 and by confirming that the record of appeal was complete, learned counsel for the Respondent waived any objection as pertains to the competence of the appeal.

72. To buttress the legal import and implication[s] of the doctrines of estoppel, waiver and acquiescence, it suffices to cite and reference the holding in the case of 748 Air Services Limited v Theuri Munyi [2017] eKLR; where the Court of Appeal stated as hereunder:Estoppel is not easy to define in legal terminology. In his customary innovativeness, Lord Denning in the case of McIlkenny vs Chief Constable of West Midlands, [1980] All ER 227 gave the history of its evolution from French origins and compared it to a house with many rooms. Let us hear him:"..we have so many rooms that we are apt to get confused between them. Estoppel per rem judicatum, issue estoppel, estoppel by deed, estoppel by representation, estoppel by conduct, estoppel by acquiescence, estoppel by election or waiver, estoppel by negligence, promissory estoppel, proprietary estoppel, and goodness knows what else. These several rooms have this much in common: they are all under the same roof. Someone is stopped from saying something or other, or doing something or other, or contesting something or other. But each room is used differently from the others. If you go into one room, you will find a notice saying 'estoppel is only a rule of evidence. If you go into another room you will find a different notice: 'estoppel can give rise to a cause of action'. Each room has its own separate notices. It is a mistake to suppose that what you find in one room, you will find in the others."

73. The Court went further and stated thus:“The rooms we shall enter in the matter before us is estoppel by conduct and estoppel by election or waiver. Waiver is an intentional relinquishment or abandonment of a known right or priviledge. In the case of Banning vs Wright (1972) 2 All ER 987, at page 998 the House of Lords stated thus:-"The primary meaning of the word waiver in legal parlance is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted. A person who is entitled to a stipulation in a contract or of a statutory provision may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waivers are not always in writing. Sometimes a person's actions can be interpreted as a waiver - waiver by conduct".

74. Closer home in the case of Sita Steel Rolling Mills Ltd vs Jubilee Insurance Company Ltd [2007] eKLR the Court stated thus:“A waiver may arise where a person has pursued such a course of conduct as to evince an intention to waive his right or where his conduct is inconsistent with any other intention than to waive it. It may be inferred from conduct or acts putting one off one's guard and leading one to believe that the other has waived his right.”

75. Similarly, the Court ventured forward and stated as hereunder;The Court also did explore at some length the issues of waiver, estoppel and acquiescence in the Serah Njeri Mwobi case (supra) and we adopt its analysis in respect of waiver and estoppel by conduct, thus:-"The doctrine of waiver operates to deny a party his right on the basis that he had accepted to forego the same rights having known of their existence. The doctrine of estoppel operates as a principle of law which precludes a person from asserting something contrary to what is implied by a previous action or statement of that person. See Seascapes Limited vs Development Finance Company of Kenya Limited, [2009] eKLR. The words waiver, estoppel and acquiescence have also been defined by the Halsbury's Laws of England, 4th Edition, Volume 16. At page 992 waiver has been defined as follows:-“Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may sometimes resemble a form of election, and sometimes be based on ordinary principles of estoppel, although, unlike estoppel, waiver must always be an intentional act with knowledge. A person who is entitled to rely on a stipulation existing for his benefit alone, in a contract or of a statutory provision, may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted on it is sufficient consideration. Where the waiver is not express it may be implied from conduct which is inconsistent with the continuance of the right... The waiver may be terminated by reasonable but not necessarily formal notice unless the party who benefits by the waiver cannot resume his position, or termination would cause injustice to him?.”

76. To my mind, the submissions by and on behalf of Learned counsel for the Respondent as pertains to the competence or otherwise of the instant appeal are not only pre-mature and misconceived, but same are legally untenable.

77. In a nutshell, my answer to issue Number One [1] is threefold. Firstly, the Appeal beforehand is a separate and distinct cause and hence it was not necessary for the Appellants New/ incoming Advocates to seek for and/ or obtain Leave before the filing of the Notice of Change of Advocates.

78. Secondly, the Notice of Change of Advocate was duly and lawfully filed. In any event, there is no gainsaying that there is no Judgment, which has been entered in respect of the Appeal yet and which could bring into action the import of Order 9 Rule 9 of the Civil Procedure Rules, 2010.

79. Thirdly, the question and issue of the Notice of Change of Advocates was underpinned by the Proceedings undertaken on the 11th day of November 2024; and which proceeding[s] and orders have not been appealed against.

Issue Number Two [2]: Who between the appellants and the respondents is the legitimate owner of the suit property. 80. Suffice to state that the dispute beforehand touches on and concerns ownership over and in respect of Plot No. 280 Kariobangi south river; also known as LR No. 12062/860 Kariobangi South/Nairobi. For good measure, the suit plot is being claimed by both the appellants herein on one hand; and the Respondent on the other hand.

81. According to the appellants, the suit plot was duly allocated to the first appellant vide letter of allotment dated 18. 6.1996. Furthermore, the appellants have also stated that thereafter same[ Appellants] were issued with a lease duly executed by the city council of Nairobi [now defunct].

82. Premised on the letter of allotment dated 18. 6.1996 and the lease dated 27. 6.2012; the appellants contend that the suit property lawfully belong to them. Owing to the foregoing, the appellants implored the trial court [Chief Magistrates Court] to file and hold that same were the legitimate owners/proprietors of the suit property.

83. On the other hand, the Respondent contends that the suit property was sold unto her [Respondent] by PW 3, namely, John Kuria Njeri. Furthermore, the Respondent contends that upon purchase of the suit property, the vendor (PW 3) availed to the Respondent various documents including the letter of allotment issued in 1997, beacon certificate and rates payment receipts.

84. Other than the foregoing, the Respondents also contended that prior to and before purchasing the suit property, same went to the city council of Nairobi [now defunct] and verified the records pertaining to the suit property. In this regard, the Respondent averred that the records at the city council of Nairobi [now defunct] confirmed that the suit plot belonged to and was registered in the name of PW 3.

85. Be that as it may, it is important to recall that the Respondent procured the attendance of one Mr. Ndegwa Ochoi who testified as PW 2. The said witness [PW2], intimated to the court that the same is the chief officer planning. In addition, the witness testified and produced assorted documents, confirming that the Suit Property belonged to the Respondent herein.

86. Additionally, PW 2 testified before the court that the documents presented by the Respondents form part of the records obtaining at the city council of Nairobi {now defunct. On the contrary PW 2 posited that the documents including the letter of allotment and the lease adverted to by the appellants, are not traceable to the records of the county government of Nairobi.

87. After reviewing the conflicting evidence tendered by and on behalf of the respective parties, the learned chief magistrate came to the conclusion that the suit property belongs to the Respondent. Pertinently, the finding[s] and holding[s] by the learned chief magistrate was underpinned on the evidence of PW 2.

88. Though learned counsel for the appellants has sought to impeach the evidence of PW 2 on the basis that the Letter of allotment being relied upon by the Respondent was issued to PW 3 when same {PW 3} was a minor, there is no gainsaying that the only evidence from the allottee and record keeper of the plot is that of PW 2.

89. To my mind, if the appellants before court were not satisfied with the evidence of PW 2, it behooved the appellants to call/summon a witness from the City County Government of Nairobi. For good measure, the City County Government of Nairobi is reported to be the allottee who generated the letter of allotment being referenced by the appellants.

90. To the extent that the appellants letter was said to have been issued by [sic] the city council of Nairobi {now defunct}, it is imperative to state and underscore that where a contest on the validity of same arises; then the evidence from the allocating authority would be critical and paramount.

91. To this end, I beg to adopt and reiterate the holding of the Court of appeal in the case of Philemon L. Wambia v Gaitano Lusitsa Mukofu, Attorney General & Settlement Fund Trustees (Civil Appeal 115 of 2017) [2019] KECA 157 (KLR) (28 November 2019) (Judgment); where the Court stated thus;The appellant further testified that he was given the letter of allotment from the Nairobi office of the SFT. The SFT witness testified that letters of allotment are issued at the Land Adjudication and Settlement Office located in the District where the settlement scheme is found. It is not in dispute that the appellant did not obtain his letter of allotment from the lands office in Trans Nzoia.The authenticity of the appellant’s letter of allotment is therefore in issue. The legal adage is that he who alleges must prove. In this matter, the appellant has not tendered any evidence to support the counterclaim that his letter of allotment is genuine. When the authenticity and genuineness of the appellant’s letter of allotment was raised, it was incumbent upon the appellant to prove the genuineness of his letter of allotment. As the trial court correctly stated, the appellant ought to have called a witness from the Nairobi Lands Office where he claimed he obtained the letter of allotment. Failure on the part of the appellant to call a witness from the lands office means that he did not prove the counter claim on a balance of probabilities.

92. Other than the letter of allotment which has been relied upon by the appellants to stake a claim to ownership of the suit property, the appellants herein have also referenced the Lease dated 27th day of June 2012; and which is said to have been executed by the city council of Nairobi [ now defunct]. Notedly, the lease under reference underpins the appellants claim/entitlement to the suit property.

93. Arising from the foregoing, it is therefore worthy to interrogate the lease and thereafter to discern whether the same [ Lease under reference] can underpin the claim of ownership to the suit property.

94. To start with, it is worthy to underscore that the lease under reference was allegedly executed by the City council of Nairobi on the 27th day of June 2012;. yet at the time of the purported execution there was a moratarium in operation by virtue of the provisions of section 35 (1) of the Transition to Devolved Government Act 2012. Instructively, the said Act came into operation in March 2012; and hence no local authority, the city council of Nairobi not excepted, could dispose of any asset, albeit without the consent of the Transition Authority[ TA].

95. To the extent that there was in existence a moratorioum in place, any purported disposition of an interest in Land/ Asset[s] including the execution of the impugned lease, was a nullity and incapable of vesting/conferring any title or rights to the appellants.

96. Other than the fact that the impugned lease was executed in contravention of the Provisions of Section 35 of the Transition to Devolved Government Act, 2012; it is also imperative to state that the purported lease is an instrument that must ordinarily be registered in accordance with the provisions of the Land Registration Act 2012 [2016]. However, the lease under reference was neither presented for registration nor was same registered in accordance with the provisions of the law.

97. Furthermore, it is not lost on this court that the lease which has been adverted to and relied upon by the appellants is also an instrument chargeable with stamp duty in accordance with the Stamp Duty Act Cap 480 Laws of Kenya. Nevertheless, the lease document beforehand was never charged with the requisite stamp duty.

98. In my humble albeit considered view, the Lease document tendered and produced before the court was not admissible in law in the first instance. Consequently, the impugned Lease Document ought not to have been admitted in the first place. In this regard, there is no gainsaying that the provisions of sections 19 and 20 of the Stamp Duty Act were contravened.

99. Nevertheless, the fact that the Lease document was tendered and produced before the court does not by itself denote that the lease document was proved and is thus possessed of requisite probative value. Suffices to state that admissibility of documents is one thing, proof of same; and probative value [if any] of the documents is another issue.

100. In Kenneth Nyaga Mwige v Austine Kiguta Civil Appeal No. 140 of 2008 [2015]eKLR, the Court of Appeal stated as hereunder;“18. ….Any document filed and/or marked for identification by either party, passes through three stages before it is held proved or disproved. First, when the document is filed, the document though on file does not become part of the judicial record. Second, when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document.Third, the document becomes proved, not proved or disproved when the court applies its judicial mind to determine the relevance and veracity of the contents – this is at the final hearing of the case. When the court is called upon to examine the admissibility of a document, it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the Court would look not at the document alone but it would take into consideration all facts and evidence on record.[ Emphasis Supplied]19. The marking of a document is only for purposes of identification and is not proof of the contents of the document. The reason for marking is that while reading the record, the parties and the court should be able to identify and know which was the document before the witness. The marking of a document for identification has no relation to its proof; a document is not proved merely because it has been marked for identification.20. Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit, it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an unauthenticated account.

101. In a nutshell, the two [2] sets of a document that were relied upon by the appellants herein to underpin their claim to the suit property do not suffice in the eyes of the law. Pertinently it was incumbent upon the Appellants to meet and satisfy the threshold that was outlined in the case of Hubert L. Martin,Cyril Odemdo & Facet Khaemba versus Margaret J. Kamar,Damaris Lenayara,Eileen Kendagor,Mary Kaparo,Maendeleo Ya Wanawake & Commissioner of Lands (Environment & Land Case 98 of 2012) [2016] KEELC 1092 (KLR) (18 February 2016) (Judgment).

102. For coherence, the court underscored the threshold in the following terms;31. A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root.No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder. With the nature of case at hand, I will need to embark on investigating the chain of processes that gave rise to the two titles in issue as it is the only way I can determine which of the two titles should be upheld.

103. On the part of the Respondent, it is worthy to state that her claim to the suit property is anchored on inter alia a letter of allotment which was hitherto issued to and in favour of PW3; and which was thereafter sold unto her. Even though a letter of allotment does not constitute title to land, but same is precursor/ prelude to obtaining title to land provided that the allottee has duly complied with the terms/ conditions stipulated thereof.

104. The totality of the evidence that was tendered before the court demonstrates that the terms of the letter of allotment being relied upon by the Respondent were complied with and or met. In any event, PW 2 confirmed that the terms were complied with and that the records of the City County Government of Nairobi vindicates the Respondent’s ownership of the suit property.

105. Suffice to state that in my humble view the Respondent herein has not only placed before the court the Letter of allotment and the beacon certificate, but same [Respondent] has ventured forward and procured evidence from the allocating authority to buttress her entitlements to the suit property.

106. At any rate, there is no gainsaying that where there is a contest touching on the validity of two [2] or more title/documents then the allocating authority, in this case the City County Government of Nairobi, would be in a better place to help the court discern which of the competing documents is legitimate.

107. Notably and as pertains to the instant matter, PW 2 testified that the documents propagated and relied upon by the Respondents are the only ones traceable to their records. For coherence PW 2 reiterated and confirmed that the suit property belongs to the respondent.

108. Consequently and in the premises, I beg to state that the findings and holding by the Learned Chief Magistrate relating to ownership of the suit property are unassailable. Simply put, I come to the same conclusion and hence I hereby proclaim that the suit property [disputed Plot] belongs to the Respondent.

Issue Number Three [3]: Whether the finding by the learned trial magistrate pertaining to fraud as against the Appellants was well grounded and legally tenable. 109. Learned counsel for the Appellants has submitted that the finding and holding by the Learned Chief Magistrate that the Appellants letter of allotment and lease were fraudulent, were not based on any plausible or credible evidence. In any event, it has been submitted that the Respondent herein did not adduce any document or evidence to substantiate the allegations based on fraud.

110. Additionally, it has been submitted that proof of fraud requires specific evidence and not mere allegations. In addition, it has been contended that fraud cannot be inferred and hence it behooved the Respondent to place before the court cogent and credible evidence.

111. On the part of the Respondent, it has been submitted that the letter of allotment and the lease document being relied upon by the appellants were not traceable to the records of the City County Government of Nairobi. Furthermore, it has been stated that PW 2 disowned the Appellants’ Documents.

112. According to the Respondent, the documents being relied upon by the appellants could only have been issued by the city council of Nairobi. However, the city council of Nairobi has disowned the impugned document. In this regard, learned counsel for the Respondent has posited that there is evidence fraud.

113. Without belaboring the issue, it is my humble position that the uncontroverted evidence of PW 2 suffices to anchor and underpin a plea of fraud. There is no gainsaying that a letter of allotment and the Lease which were not issued by the authority purported to have issued same, ipso facto, denotes fraud.

114. In the premises, I find and hold that the Respondent was able to establish and prove the claim of fraud. Suffices to posit that the totality of the evidence on record meets and satisfies the statutory threshold highlighted in the decision in the case of Kuria Kiarie & 2 others v Sammy Magera [2018] eKLR; where the Court of appeal stated as hereunder:The law is clear and we take it from the case of Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA. (as he then was) stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” [Emphasis added].

115. As regards the standard of proof, the Court of Appeal in the case of Kinyanjui Kamau vs George Kamau [2015] eKLR expressed itself as follows;-“…It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008) 1 KLR (G & F) 742 wherein the Court stated that: “...We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases...”...In cases where fraud is alleged, it is not enough to simply infer fraud from the facts."

Issue Number Four [4]: Whether the award of general damages in favour of the Respondent was lawful and legitimate. 116. Learned counsel for the appellants also contended that the Learned Chief Magistrate erred in law and in awarding the sum of Kshs.500,000/= only, as general damages to the Respondent herein. In particular, it was contended that the award of general damages was erroneous and thus ought to be vacated.

117. Despite the submissions by learned counsel for the appellants, I beg to state that having found and held that the Respondent was entitled to and was indeed the owner of the suit property; same {Respondents} was no doubt entitled to general damages for trespass to atone for the loss suffered during the period of deprivation.

118. Pertinently, general damages for trespass are due and awardable to the owner/proprietor of a landed property which has been trespassed upon by a third party. Instructively, the award of general damages is intended to compensate the owner of the designated property for loss, damage or injury suffered during the period of unlawful deprivation.

119. As concerns the manner of ascertaining the quantum awardable on account of general damages, it suffices to state that such damages are at large. In this regard, the award is largely dependent on the discretion of the court taking into accountinter-alia, the nature of the injury, the size of the property trespassed upon, the location of the property and finally the duration of deprivation.

120. In the case of Kenya Power & Lighting Company Ltd v Ringera & 2 others (Civil Appeal E247 & E248 of 2020 (Consolidated)) [2022] KECA 104 (KLR) (4 February 2022) (Judgment); the Court of Appeal reviewed various decisions on the principles applicable in ascertaining and awarding damages and stated thus:“The principles both parties have relied upon in their invitation for the Court to decide either way are those enunciated by the predecessor of this Court and either crystallized or restated by this Court which we find prudent to distill and replicate as hereunder:i)Harlsburys Laws of England 4th Edition Vol. 45 at para 26 pg 1503, namely, the owner of the land is entitled to nominal damages where there is no actual damage occasioned to the owner by the trespass, such amounts as will compensate the owner for loss of use resulting from the damage caused by the trespass, reasonable damages are payable where the trespasser has made use of the owner’s land, exemplary damages are payable where the trespassers conduct towards the owner is not only oppressive but also cynical and carried out in deliberate disregard of the right of the owner of the land with the object of making a gain by his/her unlawful conduct, general damages may be increased where the trespass is accompanied by aggravating circumstances to the detriment of the owner of the land.ii)Duncan Nderitu Ndegwa vs. Kenya Pipeline Company limited & Another [2013] eKLR - damages payable for trespass are the amount of diminution in value or the loss of reinstatement of the land with the overriding principle being to put the claimant in the position he was in prior to the infliction of harm.iii)Philip Ayaya Aluchio vs. Crispinus Ngayo [2014] eKLR, - the measure of damages for trespass is the difference in the value of the plaintiffs’ property immediately before and immediately after the trespass or the cost of restoration whichever is less.iv)Ephantus Mwangi & Another vs. Duncan Mwangi [1981 – 1988] I KAR 278, - an appellate court is not bound to accept and act on the trial court’s findings of fact if it appears clearly that the trial court failed to take account of particular circumstances; or probabilities material to an estimate of evidence.b)a Court of Appeal will not normally interfere with a finding of fact by the trial court, unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.v)Kiambu Dairy, Farmers Co-operative Society Limited vs. Rhoda Njeri & 30 Others [2018] eKLR, - the extend of an award of compensatory damages lies in the discretion of the trial court and interference therewith on appeal must be approached with a measure of circumspection and well settled principles.vi)Kemfro Africa Limited vs. Lubia & Another [No. 2] [1987] KLR 30 as approved in Peter M. Kariuki vs. Attorney General [2014] eKLR, - before interference with the quantum of damages awarded by a trial court the appellate court must be satisfied that either the judge in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or short of the above, the award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages payable.vii)Johnson Evans Gicheru vs. Andrew Martin & Another [2005] eKLR, - this Court on appeal will be disinclined to disturb the finding of the trial Judge as to the amount of damages awarded by the trial court merely because if it had tried the case itself in the first instance, it would have awarded either a higher or lesser sumb) justification for reversing a trial Judge on an award of damages only applies where the court is convinced either that the Judge acted upon some wrong principle of law or that the amount awarded was so extremely high or so very low as to make it an entirely erroneous estimate of the damage to which the aggrieved party is entitledviii)Sumaria & Another vs. Allied Industries Limited [2007] 2 KLR I, - an appellate court should be slow in moving to interfere with a finding of fact by a trial court unless it was based on no evidence or based on a misapprehension of the evidence or that the Judge had been seen demonstrably to have acted on a wrong principle in reaching the finding he/she did.ix)Butt vs. Khan [1981] KLR 349, - an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimatex)it must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.vii.Total (Kenya) Limited formerly Caltex Oil (Kenya) Limited vs. Janevans Limited [2015] eKLR, - whether the claim is in contract or tort, the only damages to which an aggrieved party is entitled to is the pecuniary loss;(b)the accruing awardable damages is aimed at putting the aggrieved party into as good a position as if there had been no such breach or interference. In other words, in the position it/he/she was in with regard to the object trespassed upon before the onset of such a trespass;(c)it is meant to cushion the aggrieved party against the expenses caused as a result of the trespass and loss of benefit over the period or the duration of the trespass.

121. Taking into account the principles and guidelines outlined in the decisions [supra], it is my finding and holding that the learned chief magistrate came to the correct conclusion in awarding general damages to and in favour of the Respondents. In any event, I have not discerned any error of principle in the award of General Damages for trespass.

122. Further and in addition, I beg to state that in accessing and awarding general damages in a sum of Kshs.500,000/= only; the learned chief magistrate did not exercise her discretion improperly or injudiciously.

123. For the above stated reasons, I find no basis to warrant an interference with the assessment and award of general damages in favour of the Respondent.

Final Disposition : 124. Having reviewed and analysed the pertinent issues that were canvassed by the respective parties and upon taking into account, the applicable/ relevant law; I come to the conclusion that the appellants herein have neither demonstrated nor established any scintilla of improper/ injudicious exercise of discretion; improper application of the law or error of principle or at all.

125. In the premises, I come to the conclusion that the appeal beforehand, is devoid of merits. Consequently, the final orders that commend themselves to the court are as hereunder:i.The appeal be and is hereby dismissed.ii.Costs of the appeal be and are hereby awarded to the Respondent.

125. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF JANUARY 2025OGUTTU MBOYAJUDGE.In the presence of:Benson – court Assistant.Mr. Ikua for the Appellants.Mr. Nicholas Sumba for the Respondents