https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4519

**REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MIGORI ELCLA E030 OF 2022** **NIXON OTIENO ONYANGO** **ELISHA MUTULA ONYANGO (Suing as Legal** **Representatives of the Estate of ELIZABETH** **AUMA ONYANGO-Deceased)…………………...........1ST & 2ND APPELLANT** **DAVID OGUTA ONYANGO………………………………3RD APPELLANT** **VERSUS** **AMOS ONYANGO ODHIAMBO (Suing on** **behalf of the Estate of JOHN ONYANGO** **GUMO-Deceased)……..…...................................................RESPONDENT** **JUDGMENT** **(Being an appeal from the judgment of Hon. J. Munguti Senior Principal Magistrate (SPM) delivered on the 8th December, 2022 in Migori CMCELC No. E008 of 2020)** **INTRODUCTION** 1. This is an Appeal arising from the judgment of Honourable J. Munguti Senior Principal Magistrate, delivered on 8th December, 2022 in Migori CMCELC No. E008 of 2020. By it the 1st and 2nd Appellant filed a Memorandum of Appeal dated 19th December, 2022 having the following grounds: - 2. **The Leamed Trial Magistrate erred in law and fact in finding that the Respondent was entitled to the Orders sought in prayers (a) and (b) of the Amended Plaint against the weight and nature of evidence tendered before the Court.** 3. **The Learned Trial Magistrate deliberately and biasly reframed the evidence tendered thereby distorting the same with a view to find in favour of the Respondent.** 4. **The Learned Trial Magistrate biasly and deliberately came to weird conclusions which are unsupported by any evidence on record.** 5. **The Learned Trial Magistrate erred in law and fact by writing a Judgement which is completely incompatible with the evidence presented before the Court.** 6. **The Learned Trial Magistrate erred in law and fact in disregarding the evidence of the Expert Surveyor which was never controverted by evidence of any other Surveyor thereby illegally granting-the Respondent's Case.** 7. **The Learned Trial Magistrate erred in law and fact in faulting the Re-numbering of Plots within Awendo Town by the mandated Authority without any Justification thereby usurping the authority of a lawful Government Organ.** 8. **The Learned Trial Magistrate’ erred in law and fact in creating evidence and alluding to imaginary issues to inform his Judgement.** 9. **The Learned Trial Magistrate erred in law and fact in failing to appreciate that failure by the Responder to avail any Expert Witness on matters of Survey and Physical Planning was fatal to his Case.** 10. **The Learned Trial Magistrate over engaged in the matters before him thereby leaving room for conclusion of lack of impartiality as an arbiter.** 11. **The Learned Trial Magistrate wrongly imputed and or insinuated fraudulent conduct upon the 2nd Appellant on mere coincidence that he is an employee of the County Government of Migori and thereby exhibiting bias and charging him with unproven fraud which was not even pleaded.** 12. **The Learned Trial Magistrate erred in law and in fact mischievously distorting the proceedings in Rongo SRMCC No. 90 of 1994 to arrive at a judgment favourable to the Respondent.** 13. **The Learned Trial Magistrate erred in law and fact in failing to appreciate that prayer (a) and (b) of the Amended Plaint were fatally and incurably defective and non-obtainable in law.** 14. **The Learned Trial Magistrate erred in law and fact in failing to appreciate that the old plot number 268 within Awendo Town became No. 1517 in the new numbering while 207 became new No. 1520 as proved before the Court by the relevant Surveyor.** 15. **The Learned Trial Magistrate erred in law and fact in acting and reasoning like there is only one corner plot in Awendo Town being the suit plot herein without any evidence to that effect.** 16. The Appellants sought for orders that the judgment be set aside and be substituted with an order dismissing the Respondent’s suit. They also sought for costs of the appeal and those of the suit in the subordinate court. 17. Notably, the 3rd Appellant vide a Notice of Withdrawal dated 14th January, 2026 formally withdrew his Appeal against the Respondent. What is for determination then is the 1st and 2nd Appellant’s appeal. **BRIEF FACTS** 1. The Respondent had filed a suit against the Appellants vide an Amended Plaint dated 19th May, 2021. He sought the one of the reliefs of an order of amendment of Awendo Sub-County Plot register from 1517 to its original number 207. They also sought for an order that the proprietorship of plot number 207 revert to its original owner John Onyango Gumo. 2. It was the Respondent’s case that the Appellants in collusion with the Awendo Municipal Council fraudulently caused the change of particulars of plot 207 to 1517 and transferred it to Elizabeth Auma Onyango (deceased). 3. The Appellants denied the allegations in the Plaint vide their joint Statement of Defence dated 15th June, 2021. They contended that plot 207 was not the same plot as 1517 but that 1517 was the same as the Plot known as 268 registered in the Appellants’ mother, Elizabeth Auma Onyango (deceased). 4. The matter was heard. The trial magistrate in his judgment dated 8th December, 2022 in allowing the Respondent’s suit, found that fraud had been committed in the illegal changes to the Plot numbers on the ground. 5. The Appellants being dissatisfied with the judgment filed the present appeal which was canvassed by way of written submissions. **Submissions** 1. Counsel for the Appellant filed his submissions dated 23rd October, 2025 where he submitted on the 14 grounds in the Memorandum of Appeal as one. He relied on the case of **Gitobu Imanyara & 2 Others V Attorney General (2016) eKLR** on evaluation of evidence. 2. It was his submission that the Respondent’s claimed that the original Plot No. 207 was fraudulently renamed to Plot No. 1517 in the name of the Appellants' mother. He argued that the Respondents failed to prove this claim since the 1st Respondent admitted during cross-examination that he didnot have any document which showed how Plot No. 207 changed to 1517. 3. He submitted that tracing the Plot numbers required technical expertise which the Respondents never called one. It was his submission that the Appellants called DW1, Mr. Geoffrey Kipkurui Ngeno, a surveyor employed by the Migori County Government. 4. He added that DW1 provided uncontroverted evidence backed by an extract of the Register (DExh 2) and maps which confirmed that the original plot No. 268 was renumbered as Plot No. 1517 and that the original plot No. 207 was renumbered as Plot No. 1520. 5. He argued that two plots could not have occupied the same physical position on the ground and that the expert testimony conclusively disposed of the matter. 6. On the allegations of fraud, counsel submitted that the 1st Respondent admitted that he had no evidence which confirmed any fraudulent acts committed by the Appellants. 7. He further submitted that the court proceedings and judgment of Rongo RMCC No. 90 of 1994 were irrelevant since they related specifically to Plot Nos. 207 and 244, whereas the current dispute pertains to Plot 268 (now 1517). 8. It was counsel’s submission that the trial court improperly imputed fraud and misconduct without any evidentiary basis including questioning the statutory renumbering exercise conducted by the Local Authority. 9. He urged the court to allow the appeal as prayed. **RESPONDENTS’ SUBMISSIONS** 1. Learned counsel for the Respondent filed his submissions dated 28th January, 2026 where he identified the following issues for determination: 2. **Whether representation of estate of Elizabeth Auma Onyango at this appeal level is proper?** 3. **Whether the issue before the trial court was on plot number 207 or 268** 4. **What is the location of 207 before and after registration of new numbers?** 5. **Was there was fraud during registration of new Awendo Plot numbers?** 6. **Whether the appeal should be allowed** 7. **Who should pay the costs of this case** 8. On the first issue, he submitted that including the Estate of Elizabeth Auma Onyango in the Appeal was irregular and unprocedural. He added that during trial, the Appellants were sued individually as the registered proprietors of the disputed plot and the Estate of Elizabeth Auma Onyango was neither sued nor represented. 9. He also submitted that no Notice of Motion was filed to introduce the Estate into this appeal. He relied on **Order 1 Rule 10(2)** of the **Civil Procedure Rules**. He submitted that the presence of the Estate of Elizabeth Auma Onyango in the present appeal was irregular and should be struck out. 10. On the second issue, he submitted that the core dispute was about Plot number 207, which was registered to the late John Onyango Gumo. He added that Plot number 268 was only referenced to contextualize the dispute. 11. It was his submission that the Appellants never disputed that Plot 207 belonged to John Onyango Gumo rather, that the conflict arose from the County Government of Migori unprocedurally allocating new numbers and creating a new map. He argued that the court ought to disregard the Appellants' claim that the subject matter was Plot 268. 12. On the third issue, he submitted that evidence proved that before the renumbering, Plot 207 was a corner plot with permanent structures situated at the junction of the Kisii-Migori Highway and the Ulanda-Mariwa-Awendo Road. He added that the said location was corroborated by an older court file decision of Rongo File No. 90 of 1994, which included judgments, an old Awendo Map, and approved construction site plans that was not disputed by the County Council of Migori at the time. 13. He went on to submit that the Appellants failed to provide any documents that showed the location of Plot 268 prior to the new numbers. He added that the alleged new number for Plot 207 (Plot 1520) did not appear on the newly generated 2020 Map. 14. On the fourth issue, while submitting in the affirmative, counsel argued that there were several procedural and legal violations that occurred during the re-planning of Awendo town including the creation of the new 2020 map that bypassed mandatory procedures under the **Physical and Land Use Planning Act (2019**) and the **Urban Areas and Cities Act (2011)**. He added that no notices or advertisements were given to affected plot owners 15. He also submitted that the 2nd Appellant allegedly collaborated with the county officials and fraudulently changed the location of Plot 207 to Plot 268 and registered it in his mother's name. 16. He further submitted that other legitimate plots were inexplicably turned into a park without compulsory acquisition or consent. He relied on **Section 80(1) of the Land Registration Act and the case of Chemei Investments Limited v The Attorney General & Others Nairobi Petition No. 94 of 2005 and Athi Highway Developers Limited v West End Butchery Limited and Others Civil Appeal No. 246 of 2013.** 17. On the fifth issue, counsel submitted that he had met the required standard of proof on a balance of probabilities and that the primary motivation was to protect the rightful estate of John Onyango Gumo from the actions of the Appellants. 18. On the final issue of costs, he relied on **Section 27** of the **Civil Procedure Act**, and submitted that costs should be borne by the Appellants. The Respondent argued that they would have had no reason to institute the suit or defend the appeal if not for the Appellants' fraudulent actions in changing the ownership and location of Plot 207. 19. In conclusion, he urged the court to dismiss the appeal with costs to the Respondent and the trial court’s determination be upheld by this Honourable Court. **Analysis and Determination** 1. Upon consideration of the grounds of appeal, the pleadings, the law, the evidence of the parties in the trial court, the parties’ submissions herein and the authorities cited, I am of the humble view that as much as the grounds were as many as they were, they may be summarized into one main ground. It is whether the Court erred in law and fact in arriving at the decision he reached hence whether the appeal is merited. Thus, the following issues are for determination: 2. **Whether the appeal is merited.** 3. **Who should bear the cost of the appeal.** 4. In the case of **Abok James Odera T/A A.J Odera & Associates Vs John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR** the Court held 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 reanalyze 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 then that my duty is to analyze the evidence afresh although I did not see the witnesses who gave it and apply the law to it and arrive at my own conclusion, I shall now recall the evidence at the hearing of the trial court. 2. It was the Appellants’ case that the original plot No. 268 was renumbered as Plot No. 1517 and that the original plot No. 207 was renumbered as Plot No. 1520. On appeal, and even at the trial, he argued that the trial magistrate erred in imputing fraud on the part of the Appellants in the renumbering exercise without sufficient evidence. 3. The Respondent on the other hand contended that Plot number 207 was registered to the late John Onyango Gumo. He added that Plot number 268 was only referenced to contextualize the dispute. 4. He argued that the Appellants never disputed that Plot 207 belonged to John Onyango Gumo but that the dispute arose from the County Government of Migori unprocedurally allocating new numbers and creating a new map. 5. It was his case that the 2nd Appellant colluded with the County officials and converted Plot 207 to Plot 268 and registered it in his mother's name. 6. Regarding the merits herein, it is trite law that he who alleges must prove. **Section 107** of the **Evidence Act** provides; **“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.”** 1. It is this court’s view that when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. The respective pleaded alleging different facts regarding the Plots 207 and 268. Thus, while it was the Respondent’s burden to prove his claim of fraud to a balance of probabilities, once he tendered evidence to show that fraud took place in the renumbering and registration, the onus lay on the Defendants, now appellants, to adduce evidence on the contrary position they posited that the renumbering and registration was proper. By this the court did not shift the burden of prove to the Defendants. It only required them to adduce sufficient evidence to support their different position. Had they merely denied the fraud without proffering a different angle the court could not have called on them to give this side or set of facts. 2. About the registration of a party in a title whose validity is under challenge, the Supreme Court in **Jan Mohammed (SC) (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) & another v Lagat & 4 others (Petition No.17(E021) of 2023 and 24(E027) of 2022 (Consolidated) [2024] KESC 39 (KLR)** held thus: **“The registered proprietor must go beyond the instrument of title and show that the acquisition was legal, formal and free from encumbrance. However, the responsibility to prove legitimacy of title is not only limited to the party whose title is being challenged. It also extends to the party claiming infringement of his property rights, to prove his entitlement warranting the attendant constitutional protection sought”** [*emphasis mine*]. 1. Thus, once the Plaintiff showed evidence that Plot 207 was renumbered irregularly as pleaded, it is without a doubt that the onus was or settled on the Appellants to prove that **Plot No. 268 AND NOT Plot 207** which was renumbered as **Plot No. 1517,** and of critical importance is whether the renumbering, even when if **Plot 268** was renumbered **1517** it did not overlap or overlay **Plot No. 207** as claimed by the Plaintiff, and that for that reason the registration of the John Gumo (deceased) hence seeking a cancellation of the registration. 2. Further, **Section 109 of the Evidence Act** provides as follows; **“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.”** 1. In the case of **Anne Wambui Ndiritu V Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal** held that: **“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue”** 1. As I now turn to evaluate the evidence and compare the law with it, I must first address the issue of the validity of the appeal as it goes to both the merits and the root of the appeal. 2. The Respondents claimed that the Estate of Elizabeth Auma Onyango in the appeal was irregular and unprocedural since there was no application bringing the said Estate into the present appeal. This opposition to this Appeal can only be clarified from an analysis of the pleadings herein and the relevant ones. 3. This Appeal was instituted by three parties namely, Nixon Otieno Onyango and Elisha Mitula Onyango who described themselves both in the heading of the Memorandum of Appeal and the recital that they were “suing as the legal representatives of the Estate of Elizabeth Auma Onyango (deceased)”, and David Oguta Onyango. As I noted in the 3rd paragraph above the 3rd Appellant withdrew his appeal, leaving the 1st and 2nd Appellants to pursue theirs. Thus, the appeal now is by the parties who are the legal representatives of the Estate of Elizabeth Auma Onyango. 4. In the case of **MK V MWM & Another [2015] eKLR** the Court of Appeal held that; **“we would agree that Order 1 rule 10(2) of the Civil Procedure Rules contemplate an application for joinder of parties where proceedings are still pending before the court…the Court of Appeal of Tanzania in Tang Gas Distributors Limited -vs- said & Others [2014] E.A. 448 held that the court has power to add a party to proceedings at any stage. A party can be joined even without applying. Joinder can be done before or during trial. It can be done after judgement. It can be done even in the appellate stage.”** 1. It is trite that without a grant of letters of administration, one cannot purport to file suit in respect of the estate of a deceased person. In the present case, the Respondents filed their Defence in the lower court in 2021. I have perused the court record. With the Defence was filed a witness Statement by one Elisha Mitula. There was also filed the Defendants’ List of Documents. It is not in dispute that they also filed on 10th November, 2020 a Grant of Letters of Administration to the Estate of Elizabeth Onyango. It was dated 14th October, 2020. That was all they did with regard to the said Grant. They did not move the Court for them to be substituted to be parties in he suit in their new capacity as legal representatives. 2. With the above position of the parties, it now leads me to consider why the absence or lack of a next step is important. It is because if the pleadings on appeal were filed by different parties from those in the trial court, then it means that the parties in that court never preferred an appeal from the judgment against them. This is because an appeal is a different ‘suit’ from the original claim or the matter in the court below. As much as the subject matter and the issues and parties ought to be the same in the two levels of the court, the matters are different. Who then is to urge it? The parties who sued or were sued in the court below. There must be similarity and uniformity as regards the parties. Parties do not mutate and give birth to new ones who seize others’ claims and litigate over them. That is why proceedings in the different levels of the courts’ hierarchy are governed by different rules of procedure. 3. With the above view, I now turn to the content of the pleadings on the parties in the trial Court. Their capacities and claims are to be found in the Amended Plaint and the Statement of Defence as found between pages 3 to 5 and 182 to 183 respectively of the Record of Appeal, and in the original record availed to this Court. In the Amended Plaint at paragraphs 2 and 3 the 1st and 2nd Defendants whose names are now appearing as of the 1st and 2nd Appellants suing in the capacity of legal representative of the Estate of Elizabeth Auma Onyango are each described as “an adult of sound mind and judgment who lives and works for gain within Migori.” At paragraph 1 of their Joint Statement of Defence they admit the contents of paragraphs 2 and 3 of the Plaint. They then proceed to put forth their Defence. 4. A perusal of the trial court record shows that these two parties never applied to amend pleadings to change their capacity from that in which the Plaintiff sued them. Thus, they remained sued as individuals all the way to the delivery of the judgment. Then new parties, now the legal representatives of the Estate of Elizabeth Auma Onyango appealed. The question is, was the Estate a party to the trial court claim and defence? No. Did the individuals who were sued file an appeal? No. 5. In the circumstances, it is my opinion that in as much as the Appellants had the locus to file the defence to the suit, they never included the name of the deceased’s estate in the citation of the pleadings. They cannot now introduce it in a subtle manner. They were sued in their individual capacities. 6. This court being guided by the above authority is of the view that, if they thought it proper, it would have only been in the interest of justice that the Appellant introduced, by way of application and amendment of their Defence before adducing the defence evidence the deceased’s estate in the pleadings since they claimed she had a stake in the suit property. But herein the claim on collusion and fraud was specifically against them, and from the evidenced as analyzed below the same burden attached to them to discharge, as the people alleged to have caused the registration of the Plot in the name of Elizabeth Auma Onyango (deceased), a person who was said to have died several years prior to the acts complained of, that is to say, in the year 2004. 7. The above being the obtaining circumstances one asks: is the appeal herein competent? In my humble view there is no appeal before me herein by the right parties who were initially sued. Thus, the instant one ought to be dismissed on that account. 8. The above being the finding, supposing his court were to be wrong on the issue, which I still hold is the right conclusion, this court finds that the appeal still would have not succeeded on merits. And for the support of that view the Court now proceeds to analyze the merits of the appeal. 9. Having analyzed found as above, it is my opinion that the gist of the dispute both in the trial court and this one relates to the 2020 renumbering process which allegedly lacked transparency and public participation leading to the swapping of plot allocations and locations on the map, and the subsequent registration of the new or different plots in other person’s names other than the original owners without their consent. That is where fraud would occur: that is the fraudulent process. 10. I have keenly perused the evidence on record. It is was not in dispute, from the evidence adduced, that there were Approved Site Plans for Plot 207 which was a corner plot. That being so, the renumbering of plots would have retained the prior owner of the corner plot as the owner of the same plot but with a new number, nothing complex about this logical fact. There is no rocket science about it. Simply put analogically, if I am given a new name, it is only my name that has or is changed: my identity, nature and being should remain. 11. It was pleaded in the Amended Plaint that in the year **2010** there existed in Awendo town **Plot No. 207** which in the name of **John Onyango Gumo**. Also, there was Plot No. 268 in the name of Elizabeth Onyango. This latter plot was fraudulently changed to number 1517. But at the particulars of fraud in the Amended Plaint it was pleaded in sub paragraph (a) that it was Plot 207 which was renumbered as Plot 1517 “with the intention of misappropriating estate property.” Further, that was done yet the owner was deceased, and those who did it has no letters of administration. Further, this property of a deceased person was transferred to another deceased person. But the Defendants pleaded that it was Plot 268 which was renumbered 1517 and not 207. 12. Evidence was led by PW1 that Elizabeth Onyango (the step mother to the witness) died in the year 2006. Further, that the parties’ father died on 3rd July 1998 while the other step mother, Beatrice Okoyo Gondi, who was the Defendants’ mother died on 19th December 2004. 13. From the evidence adduced by both the Plaintiff and the Defendants, there were changes and registrations of the plots in issue. One of the allegations of fraud was that these were done in respect of deceased persons (owners) and those who did them did not have letter of administration. Were these allegations proved? I am of the view that they were, given that Elizabeth Onyango and John Gumo predeceased the changes, and from the evidence on record, these changes were effected on 2010 (see the issued Plot cards PExh 5 and DExhs 2 and 3). 14. The Plaintiff’s further allegations were that these were done by the Defendants. It’s not disputed that there were changes in the numbering of the plots in issue: whether **207** or **268** to becoming **1517.** The point is the plots were renumbered, and when that took place the administrators of the Estates of the deceased were not involved, rather the deceased’s properties were renumbered and registered by persons who were not legally authorized. The plaintiff pleaded and testified that this was done by the individuals he sued, and in the times they did them. The outstanding question is, who did the renumbering and registration since the owners were long deceased? It was the defendants. Through the evidence of Elisha Mitula who was given written authority to plead it came out that the said individuals were involved in the renumbering: they are the ones who claim and are holding onto and urge that it was done properly since Plot 268 was renumbered 1517. Moreover, they have tendered evidence that as at the year 2020 there were payments over the new number 1517 they made in the name of the deceased Elizabeth Onyango. And that being so, it is my humble view that they committed the fraud as pleaded and proved. 15. Further, it is this Court’s view that the evidence of the land surveyor, DW1 was very critical in ascertaining the renumbering process of the plots. It was his evidence that the new Plot number 1517 was in the name of Elizabeth Auma Onyango (deceased). 16. During cross examination, the Surveyor admitted that he had not been given the Plan of Awendo Town Council. He also admitted that prior to the re-planning exercise, it was mandatory that they (County) give notices to the parties. He outrightly admitted that he did not have any notices presented to either John Gumo or Elizabeth (deceased) 17. The witness further admitted that as per the Site Plan for Plot 207 was located at the corner. DW1 could not explain how the Plan for 1986 moved and further, he confirmed that the receipts for rent which had been paid had been issued to Elizabeth Onyango (deceased) on 14th August, 2020 yet she had died in 2004 (according to PW1) but from the Grant of Letters issued to Elisha Mitula and Nixon Onyango, DExh 1, she died on 27th June 2003. 18. It is this court’s view that the Surveyor’s evidence regarding sequence of events particularly regarding the site plans and he changes was marred with inconsistencies. It was evident that Plot number 268 had been allocated to Elizabeth Onyango (deceased). However, the surveyor’s evidence pointed to the fact that and it confirmed that the said Plot was not properly renumbered during the exercise. 19. I am of the opinion that the said Plot was irregularly renumbered to that of the Respondent. Notably, the location of the suit property was also critical in determining whether plot 1517 was 207. It was evident that Plot 207 was a corner Plot and this was confirmed by the evidence of the surveyor. Even if Plot No. 268 would have been lawfully renumbered, there was no evidence to counter that of the plaintiff that after the renumbering, Plot Nos. 207 and 268 did not cause superimposition of one over another. It is therefore this court’s view that the Appellants failed to prove their case on a balance of probabilities. 20. Consequently, the appeal is without merit and is hereby dismissed with half of the costs to the Respondent. 21. It is so ordered. **Judgment Dated, Signed and Delivered Virtually Via The Teams Platform This 1st Day of July 2026.** **HON. DR. IUR NYAGAKA,** **JUDGE** **In the presence of,** Kisera for the 1st and 2nd Appellants Ms. Ogutu for the Respondents David Oguta (3rd Appellant) present in open Court