Muguli v Onchweri & 3 others (Environment and Land Appeal E016 of 2024) [2026] KEELC 3859 (KLR) (18 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ELC APPEAL NO. E016 OF 2024** **MARCO MUSAMBAI MUGULI…………………………..APPELLANT** **VERSUS** **JOEL ATUTI ONCHWERI……………………………1ST RESPONDENT** **FREDRICK ADIKE KIGENDI………………………2ND RESPONDENT** **KURIA LAND REGISTRAR…………………………3RD RESPONDENT** **THE ATTORNEY GENERAL………………………….4TH RESPONDENT** ***(Being an appeal from the judgment of Hon. Moses Obiero in ELC Case No. 12 of 2019 at the Senior Principal Magistrate’s Court at Kehancha delivered on 13th June 2024)*** **JUDGEMENT** 1. By way of a Further Amended Plaint dated 12th May 2016, the Appellant sought the following orders in the trial court; 2. **A declaration that the plaintiff is the rightful owner of the property known as Bukira/Buhirimonono/3099 measuring approximately 0.216 Ha.** 3. **An order directing that the 3rd Defendant to restore the original Mutation Form by rectifying the acreages of LR No Bukira/Buhirimonono/3099 and 3101 to 0.216 Ha and 0.04 Ha Respectively.** 4. **An order of eviction evicting the 1st Defendant from the plaintiff’s parcel of land LR No. Bukira/Buhirimonono/3099** 5. **An order directing the 1st Defendant to remove or demolish all the buildings built on the plaintiff’s parcel known as Bukira/Buhirimonono/3099.** 6. **A permanent injunction restraining the 1st defendant by himself and/or his agents, servants and assigns from in any way or manner whatsoever interfering with the peaceful occupation, possession user, cultivation, development and or dealing with his parcel of land known as Bukira/Buhirimonono/3099.** 7. **Costs of the suit and interest.** 8. The Plaintiff pleaded that in the year 2004 he purchased a parcel of land measuring 50ft wide by 200 ft. forming part of Bukira/Buhirimonono/2560 at Kshs. 85,000 from Jethro Adika Kagedi (Deceased) and a further 175ft by 500 ft. forming part of the same parcel for Kshs. 260,000/-. Further, that the 2nd defendant applied to the Land Control board to sub divide the land into 32 portions and the 2nd defendant was to transfer to the plaintiff his portion of land measuring 0.216 Ha. He subsequently became registered as the proprietor of Bukira/Buhirimonono/3099. He averred that the 1st defendant trespassed onto the land and destroyed his property. He listed the particulars of fraud and urged the court to allow the suit as prayed. 9. The defendants filed a joint statement of defence dated 29th October 2012 where they denied the allegations in the Plaint. Further, they stated that the plaintiff is the one who obtained the title deed to Bukira/Buhirimonono/3099 fraudulently, and proceeded to list the particulars of fraud by the Plaintiff. They prayed that the court dismiss the suit. The 2nd defendant also filed a statement of defence denying having filed or signed the joint statement of defence and denied the contents of the plaint. 10. The Plaintiff testified as PW1 and the defendant called 2 witnesses in support of its case. 11. The trial court then found that the plaintiff had succeeded in terms of prayers a and b of the Plaint. The Plaintiff was declared the rightful owner of Bukira/Buhirimonono/3099 and directed the 2nd defendant to restore the original mutation form by rectifying the acreages of Bukira/Buhirimonono/3099 and 2101 as 0.16Ha and 0.04 Ha respectively. 12. Being dissatisfied with the decision of the trial court, the Appellant instituted the present appeal vide a Memorandum of Appeal dated 5th July 2024 premised on the following grounds; 13. **The Learned trial magistrate erred in law and in fact in deciding the case against the weight of the evidence on record.** 14. **The learned trial Magistrate erred in law and fact in failing to take into account material facts and taking into account matters that ought not to be considered thereby reaching a wrong decision in law.** 15. **The Learned Magistrate erred in law and in fact and ended up misdirecting himself by failing to consider the fact that a surveyor was not called to testify in the matter yet one of the key issues in dispute was that of the exact acreage of the disputed land.** 16. **The learned Magistrate erred in law and fact and ended up misdirecting himself by holding that the correct acreage of the parcel of land known as Bukira/ Buhirimonono/3099 to be 0.216Ha.** 17. **The Learned Magistrate erred in law and in fact and ended up misdirecting himself by failing to appreciate the, Land Registrar's testimony as to the exact measurement of the 1st Respondent's parcel of Land known as Bukira/Buhirimonono/3099.** 18. **The Learned Magistrate erred in law and in fact and ended up misdirecting himself as he disregarded the Land Registrar's acknowledgment of an error in the initial title deed issued to the 1st Respondent and the Land Registrar's request for the 1st Respondent to submit his copy of the title for rectification at the Land Registry, which the 1st Respondent refused to comply with.** 19. **The Learned Magistrate erred in law and fact by and ended up misdirecting himself in failing to acknowledge that the 1st Respondent provided no evidence to support his claim that the mutation dated 3.2.2012 was altered to show that his parcel, Bukira/Buhirimonono/3099, measured 0.07Ha instead of 0.216Ha.** 20. **The Learned Magistrate erred in law and in fact in arriving at his decision consequently causing miscarriage of justice.** 21. The parties then filed submissions on the Appeal **Appellants’ Submissions** 1. Learned Counsel for the Appellant submitted that the instant appeal revolves around whether the trial court correctly determined the acreage of BUKIRA/BUHIRIMUNONO/3099, absent concrete technical proof. That the essence of the provisions of Section 18 and 19 is to allow the expert in matters to do with boundaries and acreage to handle the dispute in the first instance. Even if the court decides to entertain the matter, it cannot be competent to adjudicate the matter to the end as it will still require to fall back to the expertise of the Land Registrar. 2. Counsel urged that where the boundaries have not been fixed in accordance with sections 18 and 19 of the Land Registration Act, the court lacks jurisdiction to adjudicate the matter. This principle underpins the Appellant’s position that the trial court acted without jurisdiction to fix acreage without prior boundary determination by the Land Registrar. It is also important for the court to let the office of the Land Registrar proceed to meet its legal obligations. 3. Counsel restated that brief facts of the case and identified the key issues for determination. Counsel cited the case of Synergy Industrial Credit Ltd v Oxyplus International Ltd & 2 Others (2021) eKLR and submitted that the 1st Respondent’s admission that both parties purchased from the same vendor and were involved in the subdivision process should have guided the trial court to accept the Appellant’s version, corroborated by the Land Registrar. Reliance was placed on Michael Otieno Oloo v Homa Bay Land Registrar & 2 Others [2022] KEELC 1145 (KLR), f Maria T. Chebiego v Kimutai Kangogo Sawe & 18 Others [2020] KEELC 460 (KLR) and Chebet v Korosi & 2 Others (Civil Appeal 60 of 2020) [2023] KEHC 25446 (KLR). He additionally cited Njeru (Suing through Her Power of Attorney Wilfred Njogu Njeru) v Majani (Env & Land Case 231 of 2018) [2023] KEELC 18726 (KLR) and Magak & 2 others v Achieng & 3 others [2023] KEELC 19847. 4. Counsel urged that the evidential standard for fraud was reaffirmed in the case of Ndolo v Ndolo [1996] KECA 209. Additionally, he cited Mrao Ltd v First American Bank of Kenya Ltd [2003] eKLR on equity. He submitted that the 1st Respondent’s refusal to surrender his title for rectification despite a lawful notice from the Land Registrar offends this maxim and disentitles him to equitable relief. 5. Counsel urged that applying the principles in the case of Ochieng v Were [2025], and in the case of Magak v Achieng [2023], this Court should find that the trial magistrate acted without jurisdiction, relied on no expert evidence, and disregarded statutory rectification procedure. That the court should either allow the appeal in its entirety; set aside the judgment and orders of the lower court delivered on 13th June 2024; and Reinstate the Appellant’s acreage as per the original title, 0.07 Ha, for parcel Bukira/Buhirimonono/3101; Declares that any dispute regarding acreage or boundaries be remitted to the Land Registrar, Kuria, for technical determination under Sections 18-19 of the LRA; and Awards costs of this appeal and the lower court proceedings to the Appellant. **1st Respondents’ submissions** 1. Counsel urged that the Trial Court was entitled, both in law and fact, to scrutinize the credibility and authenticity of documentary evidence placed before it. That the mutation form relied upon by the Land Registrar was visibly altered on the acreage entries, a fact that the Trial Court expressly noted in its judgment. The court was therefore justified in treating the document with caution. 2. Counsel urged that it is trite law that courts are not bound to accept documentary evidence merely because it originates from a public office, especially where: 1. The document shows signs of alteration; 2. The maker is unable to explain the discrepancies; and 3. The original document is not produced without justification, 3. Counsel submitted that the Land Registrar, despite being the custodian of land records, failed to produce the original mutation form used during subdivision, yet no explanation was tendered for its absence. This failure went to the root of the probative value of the evidence. That the Trial Court therefore correctly held that it could not rely on a document whose integrity had been called into serious question. The Appellant’s attempt to sanitize the mutation form on appeal amounts to inviting this Honourable Court to re-evaluate credibility findings, a function reserved for the trial court. 4. Counsel urged that under sections 107 and 108 of the Evidence Act, the burden of proof lay squarely upon the Appellant and the Land Registrar to demonstrate that: The Respondent’s land measured only 0.07 Ha; and the mutation form relied upon was authentic and free from interference. That the Trial Court found as a fact that: the acreage entries had been interfered with; and the mutation document was not produced. Counsel submitted that these findings were based on the evidence and demeanour of witnesses, matters which an appellate court is slow to disturb unless shown to be plainly wrong. 5. Further, that the Appellant has not demonstrated that the Trial Court misapprehended the evidence, applied the wrong legal principles, or reached conclusions unsupported by the record. Reliance was placed on Republic v Land Registrar, Uasin Gishu & Another ex parte James K. Kipkemei [2018] eKLR where it was held that the Land Registrar must maintain accurate, credible, and verifiable land records; courts may reject registry documents whose integrity is compromised. Counsel additionally cited Esther Ndegi Njiru & Another v Leonard Gatei [2014] eKLR and Kenneth Nyaga Mwige v Austin Kiguta & 2 Others |2015] eKLR (Court of Appeal) and Patrick Lumumba Kimuyu v Prime Bank Ltd [2018] eKLR among others on matters documentary evidence. 6. Counsel maintained that the determination of the trial court was sound. Counsel urged that the Appellant’s main ground of appeal is that a surveyor did not visit the parcels to establish the acreages on the ground which argument is misconceived both in law and practice. That there is no legal requirement that a surveyor must physically visit land in every dispute involving acreage, particularly where: The dispute revolves around the authenticity of registry documents; and The court is called upon to assess the credibility of official records, not to conduct a fresh survey. 7. Counsel urged that the issue before the Trial Court was not the mathematical calculation of acreage on the ground, but rather which mutation form was genuine and whether the records relied upon by the Land Registrar were credible. A site visit by a surveyor would not cure or validate an altered mutation form, nor would it explain the absence of the original subdivision records. Counsel submitted that the Trial Court correctly confined itself to the evidentiary burden placed upon the Land Registrar and the Appellant to justify the acreage of 0.07 Ha, which burden they failed to discharge. 8. Counsel submitted that it is a well-settled principle that an appellate court will not interfere with findings of fact by a trial court unless: The findings are based on no evidence; The court misdirected itself on the evidence; or the decision is plainly wrong. 9. He cited Selle & another -vs- Associated Motor Boat Co. Ltd. & others (1968) EA 123 and submitted that the Appellant had not satisfied any of the thresholds therein. Instead, the appeal merely invites this Honourable Court to substitute its own view for that of the Trial Court, which is impermissible. 10. Counsel urged the court to dismiss the Appeal in its entirety. **Analysis and Determination** 1. I have considered the appeal, the submissions of the parties and the law. I am of the view that all the eight grounds of appeal can be condensed into one main issue: whether the trial magistrate appreciated the evidence adduced and correctly considered the issues before his hence whether the appeal is merited. To arrive at the finding, this Court has a duty to fulfil. 2. The duty of this court clear as the Supreme Court, the Court of Appeal, this one and others of equal status have restated time and again: being an appellate court of first instance this court must evaluate the evidence afresh and draw its own conclusion even though it did not see the witnesses testify so as to form an opinion on their demeanor, unless specifically recorded. The duty of this court was stated in **Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR**, where the court stated as follows; **“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”** 1. In **Williamson Diamonds Ltd and another v Brown [1970] EA 1**, the court held that: **“The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.”** 1. This was stated in **PIL Kenya Limited v Oppong [2009] KLR 442,** whereit was held that: **“It is the duty…of a first appellate court to analyze and evaluate the evidence on record afresh and to reach its own independent decision, but always bearing in mind that the trial court had the advantage of hearing and seeking the witnesses and their demeanour and giving allowance for that”.** 1. Also, it was restated in in **Selle and another v Associated Motor Boat Company Ltd and others [1968] 1 EA 123** wherein the Court of Appeal held: ***“…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. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence ...”*** 1. It was additionally restated by the Court the of Appeal, in the case of **Susan Munyi v Keshar Shiani (2013) eKLR** stated as follows: **“*As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyse, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions”*** 1. Lastly, in **Gitobu Imanyara & 2 others Vs Attorney General [2016] eKLR** the Court held as follows; ***“An appeal to this Court from a trial by the High 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 allowances in this respect.”*** 1. Bearing in mind my duty to analyze the evidence and apply the law it to arrive at my own conclusion, I shall now recall the hearing of the trial court. 2. PW1 was Joel Atuti Onchweri who adopted his statement dated 26/09/2016 as evidence in Chief. He stated that the 1st Defendant crossed onto his parcel of land, producing the title to parcel of land No. 3099 as PEXH -1. He stated that the 2nd defendant is the son to the man who sold him the land and further, that he is the one who sold the land to the land to the 1st Defendant. He testified that he bought the land in small bits which totalled to 0.216Ha. He produced the Sale Agreements as Exhibits. Further, that he made all payments as per the agreements. 3. He produced the Application for Consent of the Land Control Board dated 28/03/2011 and urged that after the land was sub-divided he was issued with a parcel number. That there is a mutation that was used to give them the parcels which he produced as Pexh 10. Further, that parcel No. 3099 was included in the Mutation and the acreage was 0.216Ha. That the 1st Defendant cut his trees and began to construct. He produced photographs showing the trees he had and stated that the 1st Defendant reduced his land to 0.07Ha by taking 0.146Ha from his land. 4. He stated that he learnt that the changes had been done at the Land Registry when the 1st Defendant entered the land. His land had been altered to be 0.18Ha. He was not notified that the acreage had been reduced and he did not see any Surveyor who demarcated the land the second time. When he asked the 2nd Defendant, he told him that he does not know how it happened. 5. During cross examination, he stated that the 1st defendant took his title first and changed the boundary and crossed into his land. That he established the acreage through his investigations. Further, that the 2nd defendant sold land to him and brought a Surveyor who came and took measurements of the land. 6. The Court scheduled a site visit on the 13/11/2020 where the Plaintiff stated that he bought four parcels of land measuring 50ft x 100ft and one measuring 25ft x 100ft. That the Defendant entered his parcel of land in 2012. By then he did not have a title, but had agreements. 7. During cross examination, he stated that he bought the land in the year 2004 and that they were all present when the land was surveyed and sub-divided. That they went to the Land Board together. He reiterated that the 2nd defendant sold the land to him and a Surveyor came and they were 32. That they measured land with the Surveyor and when they reached his land he did not measure. The 2nd Defendant is the one who took the measurements while he watched and he did not dispute at the time. All names were taken by the Surveyor and passed by the Land Control Board. 8. When examined by the court, he stated that he was stopped from entering the land in the year 2012. He stated that he got his title on 23/04/2012 and was informed at the land office that the mutation was changed. 9. PW1 then later testified in court that the 2nd defendant sold his land to the 1st defendant. When shown the exhibits he stated that he could see a mutation dated 3/02/2012 for the sub-division. That the land was marked C in the mutation. It was 0.216Ha and number 3099. That the same number appears on the title deed. 10. He produced the Land Control Board Consent dated 28/03/2011 as Exhibit 3, the Application for consent dated 25/03/2011 as Exhibit 4. He produced the sale agreements for the land he bought from JETHRO KIGEDI as exhibits 5, 6 and 7. He stated that he bought another land measuring 50 x 100ft on the 24/02/2006 and paid Kshs. 80,000/=. That on 29/07/2006, he bought another portion of land of 50 x 100ft and paid Kshs. 65,000/= producing the Agreement dated 29/07/2006 as Exhibit 9. He bought another portion vide an Agreement dated 23/07/2008 and paid Kshs. 250,000/=. 11. He stated that later he saw a fence by erected on the land by the 1st Defendant and the Land Registrar told him that he was the one who gave the 1st Defendant the order to sub-divide his land. He produced photographs of buildings erected by the 1st Defendant. He produced photographs if the trees and the small house on the land and prayed that the suit be allowed. 12. During cross examination he stated that the Land Registrar told him that he gave the order to subdivide his land. Further, that the mutation was registered in the year 2011. He denied selling the 1st defendant any land. He stated that the 2nd defendant gave a portion of land to the 1st Defendant. 13. DW1 was Julius Osoro, the Land Registrar, Kuria. He stated that he had the original Green Card for Buhirimonono/2560. It was a subdivision of 2474 whose owner was Jethro Adika Kagedi and was 1.70Ha. There was a rectification of the acreage and it came to 1.909. That there was a mutation. The owner of 2560 as per first registration was Jethro Adika Kagedi and the second entry was Fredrick Mugalavai Adika. It was recorded on 30/03/2009 and was a transmission. The third entry was done on 03/02/2012, a subdivision resulting into parcels 3072 and 3103. The parcel was closed. 14. He stated that he had the Green card for 3099 and the size was 0.07Ha. The first entry was done on 03/02/2012. The owner was Fredrick Mugalavai Adika. The second entry was done on 23/04/2012 Fredrick transferred the land to Joel Atuti Onchweri and a Title deed was issued. That was the close of the green card. He produced the green card for Buhirimonono/2560 and Buhirimonono/3099 – as D-Exhibit 1 and 2. 15. He produced the original transfer form for the transfer of 3099 dated 23/04/2012. He also produced the original consent for 3099 and the application for the consent which were duly executed. He stated that the mutation form for the subdivision of parcel number 2560 was prepared by J.O. Obado. The acreage of 3099 was 0.07Ha. It confirms with the acreage and the green card. The owner was David Mugalavai Adika and it was registered on 03/02/2012. That on 16/08/2012 they wrote to the owner that there was an error on the title deed and there was need for correction. He received the letter and ought to have brought the title deed for the correction. The title deed was 0.216Ha, as at 23/04/2012, the area is 0,07Ha. That the title deed was not surrendered for the correction. He produced the Letter dated 16/08/2012 as D. Exhibit 7. 16. He produced the Registry Index Map and stated that a map is not authority on boundaries, and that in this case the correct acreage is 0.07. 17. During cross examination he stated that they had only one mutation for the subdivision for 2560 and they did not have the original mutation in the parcel register which was registered on 03/02/2012. He further stated that he had seen D. Exhibit 6 as against Exhibit 2. What they had in common was the last page, and he could see plot C which is 3099. In D. Exhibit 6, it was 0.07 in Exhibit 2, it was 0.216Ha. 18. He stated that a correction on a title deed not surrendered must be gazetted and that the title deed was not gazetted for rectification. That there was a re-survey but he did not know about when the original survey was done. He could not tell whether the owner of the land was notified about the re-survey and all the parties should have been notified. 19. When cross examined by the 1st defendant he stated that there can be several mutations in respect of subdivision for a parcel of land. That the Surveyor verifies the acreage. That the board that is the Land Control Board gives consent as per the mutation, and it is the Surveyor who knows the acreage. Further, that it was the owner of the land who was given the Letter of Consent. 20. DW2 was Marco Musambai Maguli who stated that he also bought land from Jethro Adika and had a title deed/ he produced the Copy of the Title Deed, mutation, Search and Photographs. 21. During cross examination he stated that he did not know when the Plaintiff bought the land. That the Plaintiff also produced a mutation (Exhibit 2). His plot is C which is 3099 and is 0.07Ha. That he could see an over writing on the figures. 22. DW3 was Fredrick Mugalavai Adika, the 2nd Defendant herein. He stated that his father was Jethro Adika Kigendi, who died in the year 2006. Before his demise, he had sold land to people and had been given title deeds while other people had not been given their title deeds. They were 32 people. It was agreed that he would be the administrator of the estate of his father, and he did succession and all the people got their title deeds. Further, that the Plaintiff is the owner of parcel number 3099 which measured 0.07Ha. The 1st Defendants land is 3101 measuring 0.18. They went to the Land Control Board and he obtained a Grant of Letters of Administration. He also obtained Certificate of Confirmation and the Plaintiff did not complain. 23. During cross examination he stated that he knew that there was a case where he sold land to two people. He stated that it was his father who sold land to the 1st Defendant. He denied ever changing the particulars of the title. 24. The following sub issue then arises for determination; **Whether the trial court erred in finding that the 1st Respondent had proved his case on a balance of probabilities.** 25. The 1st Respondent sought a rectification of the acreages of the parcels of land known as 3099 and 3101 to 0.216 Ha and 0.04 Ha respectively. He produced the sale agreements as evidence of the purchase of the suit land and his mutation form. The Appellant equally produced a mutation form as P-Exhibit 2 and D- Exhibit 2. I have considered the record of appeal and it is apparent that D-Exhibit 2 indicate the size pf parcel ‘C’ as 0.07 Ha which was the parcel no. 3101. 26. The evidence that the court found to be crucial in determining the suit was the evident alterations of the mutation for on the face of it and the testimony of DW2, the Land Registrar. The Land Registrar could not produce the original mutation for parcel number 2560, whose sub division resulted in the two parcels of land that were the subject of the dispute. Coupled with the apparent alterations on D-Exhibit 2, the court found that the Respondents’ claim was merited, a decision that was premised on the failure of the witness to produce an original copy of the mutation, in light of the fact that he is a Land Registrar and a Custodian of the records. 27. In **Kenya Akiba Micro Financing Limited vs. Ezekiel Chebii & 14 others [2012] eKLR** the court stated as follows: **“Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides: ‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving of disproving that fact is upon him.’ Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make the adverse inference that if such evidence was produced, it would be adverse to such a party.”** 1. In the case of **Kimotho –vs- KCB (2003) 1 EA 108**, the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.” 2. As the 2nd respondent failed to provide the original mutation form, the trial court correctly drew an adverse inference from the same and correctly found in favour of the 1st respondent. 3. Additionally, it was the testimony of DW2, the Land Registrar, that there existed an error on the title which they notified the 1st Respondent about vide a letter dated 16th August 2012. This letter was produced as D-exhibit 7 and clearly states that the acreage did not conform to that on the ground. He further confirmed that the same was indicated on the green card but not on the title. 4. In addition to the failure to produce the original mutation form, it is clear that the evidence tendered in court proved that the acreage of parcel number 3099 had been erroneously indicated as 0.07 Ha as there were efforts to have the same rectified, only that the 1st Respondent never surrendered the title deed. The trial court therefore correctly found that the 1st Respondent had proved his case on a balance of probabilities. 5. The upshot of the foregoing is that the Appeal is dismissed in its entirety with costs to the Respondents. **JUDGMENT Dated, Signed and Delivered virtually via the Teams Platform this 18th day of June 2026.** **HON. DR. IUR NYAGAKA** **JUDGE** **In the presence of,** Mr. Owino for the 1st Respondent Chacha Matiko Advocate for appellant, absent