https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4120

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NANYUKI** **ELC APPEAL NO. E012 OF 2024** **PAUL MWANGI…………..………………………………APPELLANT** **VERSUS** **JOSPHAT GATHUNGU KAGWE………………….1ST RESPONDENT** **NANYUKI MUNICIPAL COUNCIL……………….2ND RESPONDENT** ***(Being an appeal from the judgement of Hon L.Mutai (CM) delivered at Nanyki Law Courts on 6.7.2018 in CMCC No.64* *of 2002)*** **JUDGMENT** *History* 1. The litigation history in this matter presents itself as a classic example of *“how not to prosecute a case*”, whereby the matter has been in the corridors of justice for a record 24 years! Although the plaint was filed in court on 22.1.2002 and the plaintiff testified in years 2005 and 2006, the proceedings availed in the record of appeal run from 13.9.2006. The omitted records are intact in the original record and no explanation was proffered as to why the same were not availed. 2. From that date of 13.9.2006 to the date of delivery of the judgment, the matter was adjourned countless times at the behest of both protagonists, who as if driven by an unseen force could simply not get round to prosecute the matter expeditiously. 3. And when the witnesses took to the stand (just the two litigants), murphys law where “*anything that can go wrong will go wrong anyway*” took canter stage. The original records indicate that the plaintiff, now the first respondent, commenced his testimony on **27.4.2005.** Somehow somewhat, he did not finish his testimony, he was stood down and continued to testify on **7.6.2006**. Again he was stood down. 8 years later on **7.5.2014**, the 1st defendant, now the appellant took to the stand and even produced his witness statement as his evidence. He was similarly stood down. On **20.8.2014**, the appellant took to the stand again for cross examination, he was however stood down. On 8.11.2017, the plaintiff took to the stand again, continued from where he had stopped in year 2005 and managed to complete his testimony. He was cross examined and re-examined. 4. Then the 1st defendant, commenced his testimony all over again on17.11.2018, was cross examined and re-examined and the trial came to an end. *The case before the trial court* 1. The case before the trial court was filed by the current 1st respondent through a plaint dated and filed on 22.4.2002. He averred that he is the owner of plot number A/124 Likii village within Nanyuki Municipality. That the defendant/ appellant encroached on the said plot and built structures thereon. That he had believed that one Nancy Wacuka Wanjii was the one who had encroached on his plot, and he therefore filed civil case no 19 of 2001, where the appellant gave evidence for the defence admitting that he is the one in occupation of the suit plot. 2. The plaintiff therefore sought orders as follows; **“** 1. **An order that the defendant do vacate and remove all his structures standing on Plot No. A/124 Likii Village Nanyuki Municipality and give vacant possession thereof to the plaintiff.** 2. **Mesni profits and general damages.** 3. **Cost of this suit and interest thereon.”** 4. The 1st defendant/ appellant filed a defence, counter claim and cross claim dated and filed on 17.5.2002. He avers that he is the owner of plot no. E2.1 Mutarukire Likii village, which was allocated to him by the defendant (read Municipal council of Nanyuki, 2nd defendant). He avers that the municipal council conspired with the plaintiff to deprive him of the plot by changing it to A/124 and then purported to give the same to the plaintiff. 5. He avers that Nancy Wacuka Wanjii is his mother who was sued by the plaintiff in a case where he gave evidence to the effect that he owns parcel E 2.1. He counter claims that his plot E 2.1 was surveyed and was given a new number as B 146. He avers that the municipal council acted illegally in re-allocating his plot to the plaintiff and then shifting plot B 146 to another area 6. In the counterclaim and cross claim, the 1st defendant sought the following orders; **“** 1. **That the allocation of the defendant’s plot No. E 2.1 now known as plot No. A/124 by the defendant in cross claim to the plaintiff be cancelled and the said plot to revert back to the defendant.** 2. **In the alternative both the plaintiff and the defendant in cross claim be ordered to pay the full value of the defendant developments on the suit land together with general damages for disturbances and mental torture.** 3. **Any further or better relief which this honourable court may deem fit and proper to grant.** 4. **Both the plaintiff and the defendant in cross claim be ordered to pay the costs of the suit.”** 5. The 2nd defendant , the municipal council filed a pleading with the headings “ Reply by defendant in cross claim; Defence to counter claim and cross claim”. It contends that Likii village had squatership tenure system, so it embarked on changing the same to a more secure tenure so as to provide amenities. That this process entailed resurvey of the plots, of which plot E 2.1 was apportioned into two, one was awarded to the plaintiff and the other to Nancy Wacuka Wanjii. That recognizing that the 1st defendant was an adult member of the household of Nancy, he was also given a plot in a different area. Thus before the reorganization of the plots, the 1st defendant was not an allottee of any plot at Likii village. 6. It is pertinent to note that at the trial, the second defendant did not tender any evidence. 7. The plaintiff **Josphat Gathungu Kagwe** was the sole witness for his case, testifying as Pw1. Apparently and as noted earlier, the proceedings in which the plaintiff gave evidence in year 2005 and 2006 were not availed in the the appeal record. From the proceedings conducted on 8.11.2017, the plaintiff availed documents in support of his claim including receipts for plot 124, sale agreement and allotment letter. He averred that the plot is utilized by the 1st defendant who commenced construction of a building recently. 8. In cross examination, Pw1 stated that in the case C.C. 19 of 2001, the 1st defendant was stopped from building by the court, but in year 2016, Pw1 saw a building which is not the structures he had complained of in year 2001. He avers that he bought the plot in 1998 from Esther. He further avers that plot 146 is vacant but he cant take it because that is not his plot. 9. The case for the 1st defendant was advanced by two witnesses, himself, **Paul Mwangi Muriithi** testifying as Dw1. He avers that plot E 2.1 is his, of which his mother Nancy Wacuka and the children of his late brother have been occupying the plot since 1975, but the plot was allocated to them vide allotment letter of 30.5.2000 and he is the one who has been paying rates. He avers that his mother was sued in the case CC 19 of 2001, but the case was dismissed. He produced documents in support of his case namely; allotment letter, rate payment receipts, and the judgment in CC19 of 2001. 10. In cross examination, Dw1 stated that he has been sued because of plot A124, that his plot is B 146, he lives on B146 which was formerly E2.1. He averred that in 1975, the council had not allocated them plots. He denies that plot E2.1 was given to them on temporary basis, adding that the original allotment letter got lost. He admits to having constructed on the plot during the pendency of the case. He denies that he offered his plot to the plaintiff since he has developed on plaintiffs plot. 11. Dw2 is one Nancy Wachuka Wanjii and she adopted her witness statement dated **8.3.2013** as her evidence. She identifies Dw1 as her son. She contends that she has lived on plot E2.1 since year 1975, of which Dw1 has been paying rates for the said plot. 12. In cross examination, Dw2 stated that plaintiffs plot is A124, that they possessed the land and were issued with documents, that the plot E2.1 was changed to B 146. 13. In a judgment delivered on **23. 5.2018** (and not on 6.7.2018 as indicated in the memorandum of appeal), the court gave judgment to the effect that defendants occupation of the suit plot is illegal thus, plaintiff was entitled to compensation in mesne profits. The court made the following conclusions; **“** 1. **The plot A21 belongs to the plaintiff as per the agreement between the plaintiff and Esther Nkiru, the original owner.** 2. **That the defendant’s occupation of the said plot is illegal.** 3. **The defendant is hereby ordered to vacate plot A/124/LIKII VILLAGE NANYUKI MUNICIPALITY and give it to the plaintiff in vacant possession** 4. **The defendant to pay to the plaintiff a sum of kshs 200,000/= in Mesne profit** 5. **The plaintiff gets the costs of this suit.”** *The Appeal* 1. Aggrieved by the said judgment, the 1st defendant/ Appellant filed the Memorandum of Appeal dated 13.7.2024 where he raises 6 grounds of appeal summarized as follows; That the learned trial magistrate erred in law and fact in holding that the 1st respondent was the rightful owner of the suit parcel, failing to appreciate that the appellant and his family have been in occupation of the suit plot since 1975, affirming a void sale agreement between the 1st respondent and one Esther Akilu, failing to consider the evidence and submissions presented by the appellant. The appellant prays that the appeal be allowed so as to set aside the judgment of the trial court. 2. This being a first appeal, this court reminds itself of its primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse the evidence and then determine whether the conclusions reached by the learned magistrate are to stand and give reasons either way. That was the pronouncement of the court in the cases of **Abok James Odera t/a A.J Odera & Associates Vs John Patrick Machira t/a Machira & Co. Advocates *(2013) eKLR,*** **Selle and Another Versus Associated Motor Boat Company Ltd & Others [1968] Ea 123.** **21.** I have considered the record as well as the rival and submissions of the parties. It is quite clear that the plot in question is not registered. In the case of **Danson Kimani Gacina & another v Embakasi Ranching Company Ltd [2014] eKLR**, the court stated that; **“ The law on unregistered land, unlike on registered land, is slightly unclear. Proof of ownership in the case of the former is found in documentary evidence which lead to the root of title. There must be shown an unbroken chain of documents showing the true owner. Once proof of ownership is tendered then the holder of the documents is entitled to the protection of the law. There is no doubt that such proof will be on a balance of probabilities but the court must be left in no doubt that the holder of the documents proved is the one entitled to the property ”.** **22.** Going through the evidence tendered by the parties, it is evident that the protagonists availed documents in support of their respective claims. However, those documents were not availed in the record of appeal including the judgment in the case CC 19 of 2001 which was heavily relied upon by the trial court in arriving at its decision. This does not appear to be a case of inadvertent omission of the documents. Rather, this is a clear case of lackadaisical conduct that has persisted for decades in the prosecution of this matter. **23.** To start with, the proceedings in which the plaintiff gave evidence in year 2005 and 2006 were not availed before this court. There is no evidence to indicate that the appellant raised this issue with the trial court or this court with a view of getting the full record, yet the said proceedings though rather aged are there in the original file. It is however not the place of this court to gather the missing record and incorporate the same in this appeal. Secondly, DW1 (appellant) adopted his witness statement dated 8.3.2015 while Dw2 adopted her witness statement dated 8.3.2013 as her evidence, but again the documents were not availed in this record of appeal. **24.** Thirdly, the documentary evidence is missing. **25.** Thus this is a situation whereby the appellant just banged in documents in a haphazard manner including unnecessary applications while excluding crucial documents such as his own evidence. **26.** In the case of **Ready Consultancy Co. Ltd v Charo & another (Appeal E037 of 2022) [2024] KEELRC 166 (KLR) (8 February 2024) (Judgment) Neutral citation: [2024] KEELRC 166 (KLR),** the court had this to say in regard to an incomplete record; **“In any first appeal, proceedings of the trial Court are so pivotal such that the merits or otherwise of the appeal cannot be considered or determined without them. In the absence of the trial Court’s proceedings, there is absolutely nothing on record for this Court, being a first appellate Court, to review, to re-evaluate and to consider in determining the merits or otherwise of the appeal herein. The appeal is hollow and incompetent and must, therefore, fail”.** **27.** Similarly, this appeal is devoid of the requisite proceedings and documents, thus there is nothing to review and re-evaluate. The appeal is therefore dismissed with costs to the 1st respondent. **DATED, SIGNED AND DELIVERED AT NANYUKI THIS 17TH DAY OF JUNE 2026 THROUGH MICROSOFT TEAMS.** **LUCY N. MBUGUA** **JUDGE** **In the presence of:** **Nancy Mwangi – C/A** **Kinyua h/b for Wangu for appellant** **Absent for respondent**