Mwachidudu & 3 others v Mwakidudu [2026] KEMC 883 (KLR)

Mwachidudu & 3 others v Mwakidudu (Environment and Land Case E008 of 2025) [2026] KEMC 883 (KLR) (16 September 2026) (Judgment) Neutral citation: [2026] KEMC 883 (KLR) Republic of Kenya In the Mariakani Law Courts Environment and Land Case E008 of 2025 TN Sinkiyian, PM September 16, 2026 Between Kassim Menza Mwachidudu 1 st Plaintiff Mwachidudu Bejoho Ndegwa 2 nd Plaintiff Safari Karisa Gwaru 3 rd Plaintiff Mlongo Kakongo Mzungu 4 th Plaintiff and Khamis Ndegwa Mwakidudu Defendant Judgment 1. Plaintiffs have sued the defendant on grounds that defendant has been threatening to demolish the Masjid Tasneem (Mosque), a Mosque which was built the Year 2002; and the Defendant was not only one of the witnesses to the construction of the Masjid Tasneem (Mosque), upon the completion of the said Mosque, the defendant was among the Worshipers of Masjid Tasneem (Mosque) from 2002. Despite Masjid Tasneem (Mosque) existing from the Year 2002 to date; and the defendant never claimed ownership during the construction of the said Mosque. THAT; Mzee Mwachidudu Bejoho Ndegwa herein being; the 2nd Applicant; is the one who donated free of charge; the Plot of subdivision No. D833, (subdivided from Mwavumbo Group Ranch Land Title T. Deed, which was dissolved) registered in the name of: Masjid Tasneem (Mosque). The Plot the mosque is built on has an approximate area of O. 0135Ha approximately one (1) Acre, valued at Kshs. 1.6 Million. The Plot was donated free by Mzee Mwachidudu Bejoho Ndegwa, the Owner/Proprietor of the Suit Land 2. Plaintiff 2nd is the biological father to the defendant and without any lawful reasons; defendant has threatened to demolish the mosque situated at Mavarata Village, within Samburu Sub County. The suit is filed on 24/6/2025 vide plaint dated 23/6/2025 in person.

3. The defendant was given a parcel of Land by the 2nd Plaintiff: where the defendant built his homestead; and he is living with his family members without interference thereof. The defendant has surprisingly building his Medical Clinic within a Plot which had NOT been allocated to by father/the 2nd Plaintiff.

4. Plaintiffs seek judgment against the defendant for: A. Permanent Injunction Order barring the Defendant; his family members, his agents and/or representatives from trespassing, demolishing the Masjid Tasneem (Mosque), or any other way of parting with possession of Masjid Tasneem (Mosque); B. permanent Injunction Order barring the defendant; his family members, his representatives and/or his agents from trespassing, disposing, renting; accessing/entering the said Medical Clinic for the Defendant; C. Costs and interests at Court rate.

5. Defendant opposed the suit and filed a counter claim dated 28/7/2025 filed 30/7/2025 in person. The defence in summary is that it is defendant who allowed the Mosque to be built on his land temporarily on his land at Mavarata, Samburu Sub county while alternative property was sought. That he has severally in writing since asked for the mosque to vacate his land and he gave a demand letter requesting there be a meeting to discuss orderly vacation. Defendant denies all material allegations in the plaint save for what he has admitted. He has counter claimed on grounds that he lawfully owns land at Mavarata allocated to him within Mwavumbo group ranch measuring approximately 0.219 hectare (0.719acres) which land was unlawfully in his absence reduced to 0.386acres and his land was unlawfully divided into portions D832 and D833 without his consent. He had by 2017 and 2018 witndrawn permission in writing from Tasneem mosque after he notice mismanagement and required the mosque to be moved. Plaintiffs have ignored and refused to move prompting the demand letter of May 22nd 2025 he issued through his lawyers. The mosque through its founder 1st plaintiff has refused to vacate the defendant's land hence the counter claim. He seeks orders: eviction and demolition compelling plaintiffs /Masjid Tasneem to vacate his land measuring 0.291acres and remove all structures thereon; a permanent

injunction restraining the plaintiffs their agents servants, or representatives from entering trespassing upon claiming .constructing on or in any other way interfering with the defendant's quiet possession of the said land; a declaration that the defendant is the lawful owner of the entire 0.291 hectares including the portions labelled D832 and D833 and that any occupation or sub division by the plaintiffs amounts to fraud and trespass.

6. On 28/1/2026 the court encouraged parties in view of the close relationship to consider alternative justice resolution; and upon advising parties and giving them time to consider ADR, both sides declined.

7. Matter went to trial. Plaintiff's case was heard 25/2/2026 and 26/2/2026 with 5 witnesses testifying.

8. Defence case proceeded on 11/3/2026 and 20/5/2026 with defendant testifying and calling 1 other witness.

9. Both parties filed submissions and matter was on 23/7/2026 reserved for judgment.

10. Each of the plaintiffs filed submissions despite having appointed the 1st plaintiff as authorized to plead on their behalf. Submissions dated 4/6/2026 each of the 4 plaintiffs. They are almost verbatim word for between the 1st and 2nd plaintiff kassim and Mwachidudu. Plaintiffs 3 and 4 are member worshippers of Tasneem Masjid mosque Safari Karisa Gwaru and the 4th Mulongo Kakongo Mzungu.

11. Defendant’s submissions are dated 13/7/2026.

12. Both parties submissions considered.

13. The issues for determination set out by the defendant are: whether the plaintiffs have proved that the suit property belongs to the 2nd plaintiff; whether the defendant has established his ownership; whether the plaintiffs have proved fraud or illegal registration; and whether the defendant has proved his counter claim.

14. Analysis; Law Applicable And Findings: The issues save for the fraud issue are apt for determination. There was no question of fraud alleged by plaintiffs but rather a question of what right the defendant has to claim the land upon which Tasneem Masjid (mosque) is built on, belongs to him and not to the 2nd plaintiff father to 1st plaintiff and the defendant) 15. In Gatonye & another v Kinyae & 2 others (Civil Appeal E244 of 2024) [2025] KEHC 11706 (KLR) (Civ) (22 July 2025) (Judgment) Neutral citation: [2025] KEHC 11706 (KLR) Decision by Judge DKN MAGARE, made JULY 22, 2025, question of the burden of proof was considered, thus ‘’Sections 107 to 109 of the Evidence Act , Cap. 80 Laws of Kenya, provide the legal framework for the burden of proof, stipulating that he who alleges must prove, in particular as follows: 107.[1] Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. [2] When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 16. The applicable standard as stated at paragraph 38 ‘’Proof on a balance of probabilities means that the court is satisfied that the occurrence of the event was more probable than not. In other words, the evidence adduced by the plaintiff must carry a degree of probability which is more than just plausible. It must be cogent, convincing and must tilt the balance. The court held ‘’This question of what constitutes proof on a balance of probabilities was authoritatively discussed by Kimaru, J in William Kabogo Gitau v George Thuo & 2 Others [2010] KLR 526, where the learned judge stated as follows: “ In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” 17. In this case now at hand, there are two versions of the how Tasneem Masjid (mosque) acquired

land in 2000 and built thereon. The evidence tendered by the parties is considered. The evidence must tip the balance in favour of the party claiming relief in the plaint and in the counter claim, for reliefs sought to be granted. As stated in the case above ‘A balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally [un]convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 18. In depth, what was presented on 25/2/2026 plaintiffs case, is grounded on the Patriarch’s evidence, who is said to have donated land to the mosque, that is Plaintiff 2nd plaintiff Mwachidudu Bejoho Ndegwa. He testified PW 1 adopted his witness statement dated 10/11/2025 as his testimony. History of the land: his land in Mavarata was within Mwavumbo group ranch before held the land before group ranch was established. Plaintiff 2nd, PW 1 Mzee Mwachidudu Bejoho gave portions of his Mavarata land to his children including the defendant: the defendant has a homestead where the father gave him and he does agriculture there to date. Mwachidudu also gave all his other children including 1st plaintiff land paragraph 6 of the statement. Group ranch land was adjudicated and title deed issued to group ranch committee paragraph 9. He was approached and requested by members worshippers tasneem mosque to give them a portion of land to construct a mosque masjid and he gave them a portion in 2002. They built a mosque and from 2002 worshippers have been using the mosque including the defendant and plaintiffs.

19. False claims: Mwachidudu says the defendant began to claim the mosque land that is his part of intent to grab the fathers land. The defendant has no land of his own; any land he has, he was given by the 2nd plaintiff Mwachidudu. Defendant with force and malice built a medical clinic on his fathers land without the fathers consent. He did not inform any of his brothers when he built the clinic.

20. The suit is filed to stop the defendant from grabbing the mosque land and from grabbing the fathers land where he built his clinic as the land is family land. Mwachidudu was the 1st witness for the plaintiffs’ side. In his testimony he remained firm that he is the one who gave a portion of land to the worshippers in Mavarata to build a mosque, not the defendant.

21. He said the defendant has his own land 11acres but wants to grab the mosque land 22. The group ranch committee decided in his favour that the land was his. That he was not aware that the reason the committee decided in his favour was that they made a finding that some of Bikahonzi’s children had their individual portions of land. The petition was defence exhibit 3.

23. Plaintiff 1 and defendant are children of Bikahonzi. With other 3 siblings. PW 1 confirmed that only 1st plaintiff 1 supported the father in the group ranch case; all the other siblings of plaintiff 1st, sided with the defendant when he sued the father.

24. Pw 1 said the land family land in Mavarata where the disputed portion is situated, PW 1 said Mwangombe son of bibi mdogo to be registered as owner. For the defendant he allowed him to have the portion he built clinic to be registered in his name.

25. In his testimony PW 1 main concern was where did defendant get the land he claims is his? For pw 1 he got the land from mzee kakongo. Pw 1 then said defendant has his 11acres. Why does he want to claim mosque land yet he has his own land. This sounds like a contradiction on PW 1’s part as he claimed that defendant had no land of his own except that which he, PW 1 father, had given him.

26. Cross exam….by defendant PW 1 Mwachidudu said they do not talk for over 30years with defendant because he sued him before group ranch committee and the committee refused defendant’s petition. Pw 1 did not consult his children when he sold land it's just that nyumba ya bibi mdogo it's the son that was going to school needed fees its not that he consulted them. Petition lodged by the defendant because PW 1 did not consult them.

27. About clinic: pw 1 said he never asked f=defendant about it; he just let him continue to build as he began building when pw 1 gave a portion out for mosque construction. The land belongs to Pw 1. He just accepted as the defendant had already built his clinic without asking pw 1. PW 1 said defendant did not assault him. Pw 1 said he never claimed he was beaten by the defendant. They do not relate for over 30 years, they do not speak to one another reason: defendant sued pw 1 before the group ranch committee claiming the father had no right to sell his land. Pw 1 admitted he never consulted his children about selling the land; he only involved children of the younger wife bibi, because her son was schooled using the proceeds of the sale pw 1 did, and that so now helps the father out a lot.

28. The disputed land pw 1 said is the home land where pw 1 has his home in Mavarata; the land that he said that Mwangombe be registered as owner son of younger wife. Pw 1 said the land that pw 1 got registered in his name is the land defendant had sued him over. Pw 1 said mzozo wa there siku ya kupima. Pw 1 said defendant did not assault him. He said the defendant was causing 1st plaintiff trouble and when pw 1 came to intervene, defendant pushed him and he fell. He never said that defendant beat him up.

29. Safari Karisa Gwaru: PW 3 he adopted his witness statement dated 10/11/2025 but rejected paragraph 10 of the same. Paragraph 10 is about the medical clinic built by the defendant. That the defendant built the clinic with force without the father’s consent. PW 3 reiterated the averments that that land on which Tasneem mosque is built was given to the mosque by Mwachidudu Bejoho PW 1. For 20 years after they built the mosque Khamis (defendant) worshiped with them and he never had any complaints about owning the mosque land. That it was not until 2025 that they received a letter from Khamis’ lawyer informing them that the mosque should be moved or that they hold talks with Khamis defendant. Before then they had just had rumours in the village that Kahamis was claiming he would demolish the mosque.

30. In cross examination PW 3 Safari admitted that the lawyer's letter they received dated 22/5/2025 from Njoki Kiongera gave them 60 days to discuss with Khamis or he will take steps. That even though the letter did not say Khamis will demolish the mosque within 60 days, out of fear because of the rumours they had heard in the village that Khamis wanted to demolish the mosque they decided to move to court. They did not meet to discuss with Khamis per the letter. PW 3 said it was the founders committee that approached Mzee Mwakiduduu about donating land for the mosque: the team was composed of Mulongo 4th plaintiff, Kassim 1st plaintiff, Safari 3rd plaintiff. One elder called Baruti also accompanied them.

31. Another recanted part of PW 3 statement. Paragraph 8; Safari PW 3 said it was not true that he was a teenager when Mzee Nwachidudu went to Mavarata before independence. PW 3 confirmed he was born 1969, not before independence as stated in paragraph 8 of his statement. He however confirmed that he is the one who wrote his own statement. He said he never said Khamis used force to build the clinic as stated in paragraph 10. Paragraph 9 of his statement said that he only wrote that because mzee Mwachidudu told them so. The other things he said in his statement were things he heard. He confirmed that the statements for Mulongo and Hinzano are identical almost word for word. DMFI 6a and DMFI 6b. He insisted that each of them wrote their own statements. PW 3 argued the similarity was because they were defending the mosque land so they wrote the same thing. He also withdrew the allegation that the defendant used to assault his father. PW 3 said he only saw Khamis push his father the day survey was being done and mzee fell down. That to him is assault against the mzee.

32. PW 3 denied that he ever took any official leaders of the mosque to introduce them to Khamis defendant. He denied that he had a meeting and introduced chairman, patron treasurer and ECD teacher to the defendant khamis. PW 3 said he was the chairman and treasurer of the mosque for 20years and he could not recall receiving any letters form the defendant DMFI 4 and DMFI 5 letters dated 12/4/2017 and 12/11/2018 regarding the mosque land. He said he only ever received the 2025 letter from the defendant lawyer. PW 3 confirmed that during survey of his own land, his neighbours were called to be present. He said when the mosque land was surveyed the defendant was not there. He admitted that the defendant’s land is neighbouring/adjacent to the mosque. He insisted that survey was only done once. There was no 2nd survey done over the mosque land, and the defendant was not present during the survey.

33. PW4 Mlongo Kakongo: Adopted the witness statement dated 10/11/2025 and said she does not know how to read English, and that her statement there are things she has learnt whoever had written it for her had put that were not as she said. Her statement relevant parts as she asked were read out to her in court, PW 4 Kakongo rejected paragraphs 8 and 9 of the same. She said she never said defendant beat up his father. She said she said that mzee was pushed, not beaten. So the statement about beating was wrong. She rejected it. Another recanted part of PW 4 statement. Was about Mulongo being a young girl teenager when Mzee Mwachidudu went to Mavarata before independence. PW 4 said she was not born before independence. She was born 1972. She recanted her statement that Khamis used force to build the clinic. She said she never said Khamis used force to build the clinic. Being pushed during survey that was not a long time ago that the survey was done. She said it was done under the current government not long ago. She thus recanted paragraph 8 and 9 of her statement saying the author got it wrong. Paragraph 9 of his statement said that he only wrote that because mzee Mwachidudu told them so. The other things he said in his statement were things he heard. She like PW 3 said they were given l;and to build the mosque by Mzee Mwakidudu when in year 2000 the group of worshippers being

taught Islam by someone brought by PW 3 became too big. They were given land and they built a mosque ya matope used it for worship until 2002 they got sponsored to build the current one permanent. All that time Khamis was with them and they worshipped together. He never had any complaints about the mosque land. 2025 they heard rumours in the village that Khamis wanted to demolish the mosque because it was built on his land. They later got a letter from Khamis' lawyer to go discuss with Khamis or he will take steps. Kassim Plaintiff 1 read out the letter to them and they understood, and since it was not mzee Mwachidudu chasing them, they decided to take action. She said the mosque land is adjacent to her late fathers land.she said khamis has his own land near the road and he has his clinic which is built on his father’s land. She said Mzee Mwakidudu land is not bordering Khamis land as mzee is on the other side of the road.

34. In cross examination PW 4 admitted her statement she was recanting some sections which she had stated. That they were written wrongly by whoever was interpreting from kiduruma to english. But most of what is there is true. Teenage she said is around 11 years onwards and she was that age before independence. She was born December 1972. Her fathers land is adjacent to Mzee Mwakidudu land. She claimed Khamis was once a chairman of the mosque. He was participating in the affairs of the mosque 2000 to 2024 with no complaints. She said she did not know if the mosque officials received letters from the defendant DMFI 4 and DMFI 5 letters dated 12/4/2017 and 12/11/2018. They were not informed. They were informed of the one for 2025 letter from the defendant lawyer. She said she is not a leader in the mosque. Now she is in the committee for the mosque. She said she never said defendant was given land by his father. Paragraph 9 of her statement she had recanted it already. She said she never said the defendant beat up the father. She does not know what assault means. Though it's in her statement. She confirmed some documents for Frontier engineering she was shown in court by Khamis had Khamis name not Mzee Mwakidudu. In re exam: PW 4 said during survey of the mosque land a dispute arose between Kassim and Khamis, as Khamis was saying the mosque should not be given land in its own name, it should be in Khamis name. Kassim was saying the mosque be given land in its own name.

35. Pw 5 Kimera Hinzano testimony reiterated PW 1 on ownership of the land the mosque is built on that Mzee Mwakidudu got the land from Mzee Kakongo, a grandfather to PW 5. Mwakidudu Mzee is near PW 5 land and on the lower part Mulongo Kakongo has land on the right side behind the mosque.

36. PW 5 said during survey is when trouble broke when khamis fell down his father and things ended there. Khamis stopped attending the mosque.

37. Cross exam PW 5 confirmed they have a 5 year difference agewise with Khamis, PW 5 being 78 years old and Khamis 72 years. He used to go round with the mosque donation sanduku and all that time since Mzee Kakongo gave Mzee Mwakidudu land he knew the land belonged to mzee Mwakidudu and Mzee gave a portion to the mosque. Khamis never had any issues about being the owner. Plaintiffs closed case on 26/2/2026.

38. Defence case proceeded on 11/3/2026, DW 1 Khamis, he concluded testimony on 20/5/2026 and was cross examined, And called DW 2 Juma Mwahenja Mwamunga as his witness. His 3rd intended witness said he was no longer willing to testify due to alleged intimidation.

39. The testimony of PW 2 and DW 1 has been considered. The two blood brother, sons of Bikahonzi and Mwakidudu Bejoho have opposing versions of how the mosque Tasneem allegedly acquired land.

40. This court notes that Pw 1 contradicts material facts alleged in the plaint. He contradicts the allegations in the plaint that he was beaten by defendant. The allegation that he was fearful; caused cowardice so that he does not question the defendant when he built a clinic without his consent. All that is in the plaint. Pw 1 said he never said the defendant beat him. In fact he reiterated that they have not talked for 30years. Claim that force was used to build medical clinic. PW 1 said his consent was not sought, and he decided to just let the defendant continue his construction because he is his son.

41. In the Plaint: clinic land is subject of prayers in the suit to restrain the defendant from the clinic that the clinic land is family land. In the plaintiffs submissions by plaintiff 1 the emphasis the clinic land belongs to family not for defendant only. 42. "fact in issue" means any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows (2)A fact is proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it exists. (3)A fact is disproved when, after considering the matters before it, the court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does not exist.

43. PW 1 Mwakidudu said his problem is that the mosque should be demolished. It should remain intact. Pw 1 did not talk about wanting to claim the land defendant has built a clinic.

44. The relief sought in the plaint regarding the medical clinic built by defendant fails.

45. The plaintiffs have contradicted themselves so severely that this court finds their version that the mosque was given land by Mwakidudu and not the defendant unproved.

46. In this case the court finds Latin maxim: falsus in uno, fasus in omnibus, which translates to: false in one, false in all is a legal principle applicable in this case as applied in the case Mugo v Ndwiga (Environmental and Land Originating Summons 130 of 2017) [2026] KEELC 2659 (KLR) (28 April 2026) (Judgment). Neutral citation: [2026] KEELC 2659 (KLR).

47. The case of the plaintiff has crumbled within with the plaintiffs themselves recanting crucial material allegations they had made against the defendant in seeking the orders sought in the plaint.

48. A fact established by evidence of plaintiff 2 is that his son Ndgewa has his own land in Mavarata. Question as to how big,PW 1 alluded to 11 acres and though he claimed he gave defendant, supporting in a way the defendant’s contention that he had his own land, the defendant Khamis has not buttressed the issue of his individual land and shown that it is part of the land occupied by the mosque Tasneem Masjid. Khamis did not tender any evidence to distinguish the land he said he owns individually from that which PW 1 his father said he gave the defendant.

49. PW 1 claims he gave the defendant land as he did all his other children; and it is not part of the land he claims he gave the mosque. It has been confirmed that Khamis has land that borders the mosque, PW 3 Safari confirmed that as did Defence witness no 2 Jumaa Mwahenja.

50. The delimitations of the land for Mwakidudu PW 1 that he is alleged to have been given by Mzee Kakongo and he subsequently gave a portion to the mosque to build has not been demonstrated by evidence.

51. The allegations that the defendant was part of the mosque without any complaint over ownership of land raised by all plaintiffs is considered. For 20 years Khamis is said to have been a willing participant until 2025. What then broke in 2025 to cause him to suddenly demand land from the mosque.

52. In this case the court finds credibility of plaintiffs witnesses’ testimonies highly doubtful as to the relation between Khamis and the mosque and the land it is built on. Their own contradictory evidence makes them appear as witnesses whose testimony this court finds difficult to accept for want of credibility. They seem to have choreographed, only for some of the witnesses to recant on crucial issues.

53. If they would lie outrightly in their choreographed statements allegedly written individually then recant major parts of their contention what can the court believe about their testimony? Not a single record of documents to show the mosque's history of land acquisition despite there being a committee with chairman; treasurer and patron,that was alluded to have been in place since 2000.

54. Section 2 of the Act defines Evidence" denotes the means by which an alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved; and, without prejudice to the foregoing generality, includes statements by accused persons, admissions, and observation by the court in its judicial capacity.

55. The defendant’s case: on the other hand took time to demolish in cross exam the plaintiffs case failing to tender evidence that earns him a win however narrow against the mosque’s claim. He has evidence tending to support him that he had his individual portion of land that may or may not extend to cover the mosque land. He however failed to demonstrate that by bringing records from the group ranch Mwavumbo to show his interests were identified in specific portions distinct from his fathers land in Mavarata. What is clear to the court is that he and the father have had a strained relationship because of Khamis’ courage to pursue interests on behalf of his mother’s- Bikahonzi house (bibi Mkubwa)children.

56. PW 1 Mwakidudu was clear that for 30 years he has not spoken to his son Khamis because he sued him before the group ranch committee and lost.

57. An incident occurred during survey exercise at Mavarata relevant to this case. That brings to question propriety of the survey exercise that is said to have led to parcels identified as D832 and D833 58. This court has considered decision in MERU ELC Appeal No. 118 Of 2019 Josephat Mburugu Versus Silas Mwiti delivered 23rd February, 2022 by HON. C.K. NZILI ELC JUDGE Where at paragraph 47. Court held ‘’Given that the court has found no iota of evidence linking the appellant with trespass into the respondent’s land, I find no basis of a finding that the appellant is liable for any damages which in any event were never pleaded nor prayed for in the counterclaim.

48. The respondent did not tender evidence on any loss or damage arising from the blockage of the access road by the appellant. There was no evidence called to show the loss the appellant had subjected the respondent to. No members of public were called to corroborate the respondent’s evidence and perhaps claim any public interest’’ The judge held at 59. ‘’In the premises, I find the appeal with merits. The same is allowed and the lower court suit dismissed as well as the counterclaim.60. Each party shall bear its own costs.Orders accordingly.’’ 59. In ELC Appeal No. 118 Of 2019 Josephat Mburugu Versus Silas Mwiti above cited Judge Nzili also addressed at paragraph 50, the place of a surveyor’s exercise that ‘’Section 21 of the Surveyors Act states a surveyor shall carry out every survey in a manner to ensure survey accords in all respects with the Act and shall be reasonable for the correctness and completeness of every survey carried out by him or under his supervision.

51. Regulation 26 of the Survey s 1994 provides, a surveyor shall be personally responsible for the accuracy, fidelity and completeness of every survey presented by him for the approval of the director.

60. What is certain from the uncertified maps referred to by both parties is that survey was seemingly done and the disputed portions D832 and D833 are indicated thereon. Plaintiffs claim it is proper for the 2 portions to be distinct and one belongs to the mosque, while defendant claims both should have been in his name.

61. The narrative that Khamis DW 1 gave that between him and his brother Kassim PW 2 (1st plaintiff) they had an understanding that the sponsors will buy the land where the mosque was built does not appear to be far fetched. The peace and quiet from 2002 and then sudden turn around to claim ownership in 2025 yet the said mosque has operated from 2002, looked at against some of the plaintiffs’ admission that during survey there was a dispute that arose between Khamis and Kassim about registering the mosque as owning the land it sits on, instead of the land being registered in Khamis’ name and the denial by some of the plaintiffs that Khamis was present when the mosque survey was being done is a tale tell sign that there was something that caused the plaintiffs to fear that Khamis would object to the mosque getting own registration. Safari PW 3 said that though Khamis’ land borders the mosque and neighbouring owners were being called during the survey, Khamis was not called. PW 3 claimed that.

62. That allegation raises a question, How is it that the survey was allegedly done only 1 time and there is a divergent view between the plaintiffs on whether Khamis was there or not. PW 1 said that is the time he was pushed by Khamis and he fell. It was not that Khamis usually beats him up.

63. PW 1 came and intervened to help Kassim. Then Khamis is said to have pushed him PW 1. Hinzano PW 5 said, Khamis pushed the father during the survey and things ended there.

64. DW 2 Juma said there was a dispute between Kassim and Khamis during survey of the mosque portion because Kasssim wanted it to go to the mosque but Khamis wanted the land in his name. And that the survey officials said the 2 should discuss resolve and later inform the survey team about it once resolved. In this court’s mind those claiming that Khamis was not present for the mosque survey seem to be out to hide critical information that goes to show that the parcel said to be for the mosque may have been surveyed in the midst of an active family dispute, and it may have been done at a later date not the day Khamis is said to have pushed his father PW 1 whilst intervening to support Kassim PW 2.

65. Unfortunately none of the parties called the surveyors nor tendered records of the group ranch Mwavumbo adjudication of the claims of the members to demonstrate if at any point a dispute between the Mwakidudu brothers PW 2 and DW 1 was resolved or not. And thus the identification of interests within the Mwakidudu household is not clear to this court. None of the parties called the group ranch committee as witnesses.

66. Similarly in this case this court finds that neither party has proved its case to the standard required by law. In the law of Evidence ‘A fact is not proved when it is neither proved nor disproved’. It remains unproved whether or not the mosque acquired land free of charge from Mzee Mwakidudu or whether or not the mosque was allowed permission to use the land temporarily as a sponsor was sought to purchase the land from defendant.

67. The suit by plaintiffs is dismissed as is the defence counter claim. Given that parties are very close relatives, it is just in this case to order each party bears its own costs.

68. The status prior to filing suit in June 2025 shall subsist pending appeal. Appeal to Malindi ELC Court within 28 days of today. Parties shall be issued with copies of typed proceedings and copy of the judgment at Cost. JUDGMENT DATED, SIGNED & DELIVERED THIS 16TH DAY OF SEPTEMBER 2026 T. N. SINKIYIAN,

PRINCIPAL MAGISTRATE IN Presence Of: All 4 Plaintiffs: Present. In Person Defendant:…present In Person Court Assistant:…Wesonga & Zulekha