https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3001

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NANYUKI….** **ELC APPEAL NO. E011 OF 2024** **NANYUKI EXPRESS CABS SERVICES SACCO………APPELLANT** **VERSUS** **ESTHER WANGARI……………………………………...RESPONDENT** ***(Being an appeal from the judgement of Hon SRM Vincent Masivo delivered on 20.6.2024 in Nanyuki CMELC No.48 of 2022 )*** **JUDGMENT** ***The case before the trial court*** 1. The case before the trial court was instituted by the respondent herein vide a plaint dated 25.10.2022. The plaintiff was contending that the suit plot which is a stall no. MN/U52 was transferred to her by one Eric Jackson Macharia who in turn was allocated the said plot by the Municipal council of Nanyuki on 21.1.2010. Upon transfer, the County Government of Laikipia through its County Ministry of Tourism , Trade Enterprises and Cooperative Development allocated the plaintiff the said stall through a letter of occupancy dated 26.2.2018. This was followed by a Tenancy Agreement between the same parties dated 2.3.2018 in which the plaintiff was to occupy the stall until 1.3.2033. 2. However, on 5.10.2022, the defendant, now the appellant invaded the stall claiming that the same was allocated to them. The harassments caused her tenant to leave and she was earning sh. 8000 per month. The plaintiff therefore sought for judgment against the defendant in the following terms; **“ a) A permanent injunction restraining the defendant either by itself, its servants, employees, workers and or anyone else claiming through the defendant from harassing, intimidating, threatening, invading, taking possession, occupying, transferring, disposing, alienating or in any way interfering with the plaintiff’s Tenancy, ownership, use and or possession by the plaintiff of that suit property known as MN/U52 which is situated at the Old Nanyuki Bus Park.** **b) Special damages of kshs 8,000/- per month effective from the month of OCTOBER, 2022 till the defendant stops its harassment.** **c) Costs of this suit and interest thereon.** **d) Any other or further relief that this court may deem just to grant.”** 1. The appellant, then the defendant opposed the suit vide their statement of defence dated 22.11.2022 where the claim of the plaintiff is denied. It contends that it balloted for the suit stall no. MN/U52 way back on 12.5.2009 from the defunct Municipal council of Nanyuki. It then paid construction costs of sh 240 000 on 31.8.2009 plus sh 2000 being the sale for application for the stall on 20.4.2009 2. Then on 2.3.2018, the County Government of Laikipia signed a tenancy agreement with the defendant for a period of 15 years. That on 16.9.2022, the defendant issued a notice to a trespasser of the stall, she left and the defendant took possession of the same. 3. At the trial the plaintiff ESTHER WANGARI testified as PW1. She adopted her witness statement dated 25.10.2022 as her evidence in chief. She also produced the documents in her list dated 25.10.2022 as her exhibits 1-6. Her evidence mirrors her pleadings, adding that it is her tenant who was threatened by the defendant to vacate and the latter then locked the stall. 4. On cross examination, PW1 stated that the transfer did not mention the stall number and she had no other transfer. On her tenancy agreement dated 2.3.2018, she averred that the tenant has not signed the same. She has no evidence that one Eric balloted for the stall, and she is not aware as to who was the allocating entity. She also does not have any application for the stall or payments for the construction of the stall. 5. PW2 is one CATHRINE MUGAMBI, she adopted her witness statement dated 23.2.2023 as her evidence in chief. This document could not be traced in the Record of Appeal but it was traced in the original file in plaintiffs trial bundle. She contends that she is the agent of the plaintiff in respect of the suit stall as from year 2018, of which on 6.11.2019, she let out the stall to one Purity Nyambura Kahare. However vide the defendant’s letter of 16.9.2022, she was informed that the stall belongs to the defendant of which the tenant was required to vacate, she was harassed and threatened, so she left. 6. On cross examination, PW2 identified the plaintiff as her daughter and that she over saw the allocation of the stall. She is not aware of the existence of a stake holder committee of members owning the stalls. She is aware that prior to the allocation of the stalls (the subject matter), the County Government of Laikipia had a meeting with stakeholders Committee. 7. PW3 is one CECILIA WANJIRU MAINA a director of trade in Laikipia County and she appeared in court on behalf of CEC Kisoli Biwott who sent her to produce records for the stall no. MNU 52 which was allocated to the plaintiff, who in turn purchased the same from Eric Jackson Macharia, the initial allottee. She averred that in the list of beneficiaries of Nanyuki bus stage stalls, the owner of the stall in question is the plaintiff. She produced the plaintiffs list of documents dated 3.7.2023 as exhibit 7. She could not confirm if the defendant has stalls at the bus stage. 8. On cross examination, PW3 stated that the list of beneficiaries she availed (exhibit 7) was filed on 20.10.2022 but has the stamp of 27.7.2023. She averred that for the list availed by defence at page 17 of its bundle, the suit stall is allocated to the defendant, of which the list was prepared by Nanyuki Old Bus Park Management Committee signed by the Chairman and has a stamp for the Chief Officer, Tourism and Cooperative. That the agreement of the defendant is executed by the county secretary and the Chairman of the stake holders Committee. That the list of the defendant is signed on 3.3.2018 while that of the plaintiff has the stamp of 27.6.2023. She cannot tell how the list of the plaintiff was prepared and stamped. 9. PW3 confirmed that the defendant had a receipt for application of the stall as well as payment of sh 240 000 to the Nanyuki Municipal Council, but for the plaintiff, she did not have such documents. She also did not have the agreement availed by the plaintiff and the transfer. 10. For the defendant, one SAMUEL NDUNGU WAITU, testified as DW1 and he introduced himself as the chairman of the defendant. He adopted his witness statement dated 22.11.2022 and his affidavit of even date as his evidence in chief, of which the same mirrors their pleadings. He produced the documents in their list as exhibits. He avers that they had the sole mandate to identify the allottes of the stall and they had a list of all their members. Thus they came up with the list which was signed by himself as the chairman and the Chief Officer for trade. He denies that one Eric was ever in the list of the persons allotted the stall. 11. On cross examination, DW1 stated that a letter dated 27.6.2023 indicated that the suit stall was allocated to the plaintiff and is signed by the County Government of Laikipia and that plaintiff had an official letter of occupancy. He avers that plaintiff is in possession of the stall from a court order. 12. DW2 is one HENRY MWANIKI GICHERA, the vice chair of the defendant and he adopted his witness statement dated 22.11.2022 as his evidence in chief. He relied on the documents in their list dated 13.3.2023 which he produced as exhibits 11-13 and the one in the list of 19.7.2024 as exhibit 14. His evidence mirrors their pleadings and denies invading the stall on 5.10.2022. He also avers that the Nanyuki old bus park jointly with the County Government were the once who were issuing the stalls. 13. On cross examination, DW2 stated that the defendant has 3 stalls at the stage including the subject one, of which they paid sh. 240 000 for the construction of the said stall on 31.8.2009. They took possession of the stall in year 2018, but had ownership disputes with the plaintiff. Thus they vacated for her in obedience of the court order. He avers that they did the application for the plot on 20.4.2009 and balloting was on 12.5.2009. 14. In the judgment delivered on 20.6.2024, the trial court stated that the documents of the plaintiff were authenticated by PW3 who is essentially the landlord, that this was not the case for the defendant, that DW2 had stated that they would call someone from the County Government of Laikipia to authenticate their documents but they didn’t which put into question their tenancy documents. The trial court thus allowed plaintiffs claim for a permanent injunction against the defendant plus costs. ***The Appeal*** 1. Aggrieved by the aforesaid decision, the appellant filed its Memorandum of Appeal dated 18.7.2023 raising 11 grounds of appeal summarized as follows; That the learned magistrate erred in law and fact in holding that the respondent is the legal owner of the stall, and holding that the land lord was the best person to identify the tenant. The appellant prays that the Judgment of the trial court be set aside and that respondent’s suit be dismissed. 2. The appeal was heard by way of written submissions, whereby the submissions of the appellant are dated 16.3.2026. It argues that no credible evidence was adduced by the respondent demonstrating that the suit stall was indeed initially allocated to one Eric Jackson Macharia, thus the purported transfer could not have conferred any rights unto the respondent. Thus the trial court erred in accepting the alleged transfer. It was argued that the tenancy agreement for the respondent was unsigned, whereas, theirs was duly executed, adding that the respondent had not availed any evidence that she was earning sh.8000 per month from the stall. 3. It is further argued that the trial court disregarded the list of the beneficiaries availed by the appellant and instead relied on a later list dated 27.6.2023, created almost a year after the suit was filed. 4. The appellant contends that the respondent did not discharge the burden of proof as required by the law, thus the court arrived at an erroneous conclusion. The appellant relied on the cases of **Gatonye and another v Kinyae & 2 Others ( Civil Appeal E244 of 2024) KECH 11706 (CIV) (22 JULY 2025), Eastern Produce (K) Ltd-Chemomi Tea Estate v Bonfas Shoya ( 2018) eKLR** and **Tread setters Tyres Ltd v John Wekesa Wephukhulu ( 2010 ) eKLR** to buttress its arguments. 5. The submissions of the respondent are dated 24.2.2026. She reiterates that the suit stall was legally allocated to her by the County Government, of which the said entity gave evidence to that effect, adding that the suit stall was properly transferred to her and that her tenancy agreement was signed by all the parties including the chairman, Sammy Ndungu. The respondent avers that there was no list of beneficiaries dated 27.6.2023, what bore the said date was the letter from the office of the County Attorney forwarding the records relating to the stall in question, thus the trial court was right in relying on the said documents. 22. She added that the trial court was correct in holding that the land lord was best placed to know his tenant, of which the County Government of Laikipia confirmed through PW3 that the respondent was the owner of the stall. 23. It is argued that the appellant had stated that they would call a witness from the County Government to counter the evidence of the respondent but it failed to do so and in any event, the appellant did not have a counter claim and did not sue the County Government. To buttress her claim, the respondent relied on the cases of **Mbuthia Macharia v Annah Mutua & Another (2017)eKLR, Vijay Morjaria v Nansingh Madhnusigh Darbar & Another (2000) eKLR** and **Gitwany Investment Limited v Tajmal Limited and 2 Others ( 2006)eKLR.** 24. I have considered the record before the trial court, the grounds of appeal as well as the rival submissions. 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 case of **Abok James Odera t/a A.J Odera & Associates Vs John Patrick Machira t/a Machira & Co. Advocates (2013) eKLR** and **Selle and Another Versus Associated Motor Boat Company Ltd & Others [1968].** 25. From the on set, I make the observation that the appellant did not properly distill the grounds of appeal, and instead the said grounds sound more like production of evidence, a trend that was carried on in the submissions of both parties before this court. Nevertheless, the court finds that that there are two competing claims to the property known as stall no. MN/U52 situated at the main bus stage in Nanyuki Town, Laikipia County. The issue falling for determination is whether the trial court made a correct finding that the successful party in so far as the claim to the stall is concerned was the respondent herein. 26. There is no controversy that the subject matter has no title, the same being a stall, which is a small structure. 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 ”.** 27. The above principles certainly applies in this case where by the rights and interests of the parties have to be ascertained through documentary trail. The plaintiff availed an allocation letter dated 21.1.2010 to one Eric Jackson, a transfer by Eric, letter of occupancy and the agreement of 2.3.2018 to prove her claim to the suit plot. Pw3 a director of trade from the County Government produced their records which apparently indicate that the respondent is the one entitled to the suit stall. The covering letter found at page 73 of the record of appeal does not itemise the documents and the only documents found are the summons and the list at page74-78 of the record of appeal. Thus the court went further to interrogate respondents further list of 3.7.2023 which in addition to the aforementioned 2 documents in the record of appeal, the court found the forwarding letter dated 27.6.2023, headed allocation status indicating that the stall belongs to the respondent , and the transfer from Eric to the respondent. 28. The aforementioned documents have been challenged by the appellant via their own documents including the cheque for sh.240 000, the balloting result letter of 12.5.2009, the allocation list, official letter of occupancy, the tenancy agreement of 2.3.2018 and rate payment receipt. 29. The findings of the trial court were that; **“ The plaintiff’s documents of tenancy have been authenticated by the landlord which is not the case for the defendant. The Landlord representative confirmed the transfer documents of the stall to the plaintiff made on 10/02/2016. The plaintiff tenancy will thus be first in time hence credible.”** 30. Firstly, it is the finding of this court that the fact that the appellant did not call a witness from the county is not conclusive evidence that the claim of the respondent was correct. This is because a claimant is required by law to proof his or her case regardless of the strength or the weakness of the case of the opponents. 31. In the case of **Gichinga Kibutha V Caroline Nduku (2018)eKLR,** the court held that; **“ It is not automatic that in instances where the evidence is not controverted, the claimant’s claim shall have his way in court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.”** 32. The other mis-normer to debunk is the holding by the trial court that the Land Lord is the one who could confirm the authenticity of the documents. It is noted that the Landlord in question in respect of the suit stall is not the usual land lord. The County Governments held immense powers in alienation of public land both in the pre 2010 Constitution and post Constitution era. Alongside the ministry of lands, these entities have indeed been custodians of land records, but that has not placed them in an unquestionable pedestal. The reality is that the vicious unending land disputes manifested in form of fraudulent transactions, double and multiple allocations and land grabbing have been buoyed by the very entities who are supposed to keep proper records, like in the case at hand. Thus it is a misconception that what is apparently emanating from the county is the gospel truth. 33. Back to the documents availed by PW3; The oldest document in their records is the transfer dated 10.2.2016 where it is stated that; **“ I Erick Jackson Macharia transfered my rights of kiosk document for the Nanyuki main bus stage over to Esther Wangari on this day of 10.2.2016.** What then was Erick transferring to the respondent if the county does not have records of how the stall came to be in the hands of Eric?. That question remains unanswered. 34. The other document to interrogate is the list of beneficiaries. This list only bears the stamp of 27.6.2023, the date the documents were forwarded. In her testimony during cross examination, PW3 stated that; *“ I cannot tell how the list in plaintiffs bundle exhibit 7 was prepared and stamped”.* And when referred to page 25 and 26 in plaintiff’s first bundle, which is the agreement dated 2.3.2018, PW3 stated that “*This agreement is not signed by the tenant.* *This document is not among my documents produced”.* This far, it follows that the letter produced by pw3 dated 27.6.2023 stating that their official records indicate that the respondent was the allotee of the stall is anchored on nothing. 35. As for the other allocation document availed by the respondent at page 15 of the record of appeal, the same does not capture the process leading to the allocation, particularly the application. After all, for the council to have deliberated upon the issue of allocation to the original kiosk owners, such owners must have had some engagement with the county to be identified as owners. To this end, there is no evidence of balloting by Erick and there is no application either. 36. In essence, the respondent did not discharge the burden of proof on a balance of probability as required under S. 107 of the Evidence Act. As it were, the appellant has given a plausible account of how the county was engaging with the stake holders committee at the bus stage to identify the beneficiaries. They paid sh.24000 for construction of the stall, they balloted for the same and their allocation list bears the stamp of the county. 37. Even if the court was to take the scenario that this was a double allocation, the first allocation was to the appellant vide the balloting letter of 12.5.2009, whereas the alleged allocation to Eric was on 21.1.2010. Thus in terms of the doctrine of the first in time expounded in **Gitwany Investment Limited v Tajmal Limited and 2 Others ( 2006)eKLR.**, the first in time favours the appellant and not the respondent. 38. In the end, I come to the conclusion that the trial court erred in holding that the respondent was successful in her case. This appeal is hereby allowed, the judgment of the trial court is hereby set aside. The messy litigation saga herein must have been birthed and midwifed by the County Government of Laikipia which is not a party in these proceedings. As such, I direct that each party shall bear their own costs at the appeal and before the trial court. **DATED, SIGNED AND DELIVERED AT NANYUKI THIS 13TH DAY OF MAY 2026 THROUGH MICROSOFT TEAMS.** **LUCY N. MBUGUA** **JUDGE** **In the presence of:** M/s Njuguna h/b for Wahome Gikonyo – Appellant Bwononga – Respondent Nancy Mwangi – C/A