https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4785

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ISIOLO** **ELC APPEAL NUMBER E022 OF 2025** **PETER MURIITHI MUTHURI ……………………………..APPELLANT** **VERSUS** **JOSEPH NTEERE M’MBUI ………………………………..RESPONDENT** ***[Being an appeal from the Judgment and decree dated 31.07.2025 by Hon. L. K Mutai – Chief Magistrate in Isiolo CMELC No. 92 of 2015]*** **JUDGMENT** 1. The Respondent herein, who was the Plaintiff in the lower court, commenced the suit [hereinafter referred to as the original suit] *vide* Isiolo CMELC No. 92 of 2015, and wherein the respondent sued the current appellant, as the 1st defendant. Raphael Ekwam Ebei; District Planning Officer - Isiolo; District Surveyor – Isiolo; and the County Government of Isiolo, were equally sued as the 2nd, 3rd, 4th and 5th defendants, respectively. 2. The crux of the respondent’s case was thus: The respondent is the registered owner /proprietor of plot number 261 – Chechelesi; the plot measures 161feet by 102 feet; the plot is described and captured *vide* **PDP No. ISl/117/98/248.** In addition, it was contended that the suit plot is surrounded by three [3] roads of access; the roads of access were duly marked and shown on the ground; and the road of access have been in existence since the demarcation of the suit plot. 3. The respondent further posited that: The appellant herein in collusion with the County Government of Isiolo have irregularly and unlawfully endeavored to interfere with the PDP; the appellant has blocked the road of access; the appellant has encroached onto a portion of the suit property; and appellant has erected a permanent building on a portion of the suit plot. 4. Flowing from the foregoing assertions, the respondent sought various reliefs. The reliefs are: 5. ***A declaration that there are 3 roads of access surrounding the Plaintiff’s parcel of land No. Chechelezi/161 by 102 feet as per the Physical Planner Development Plan dated 18th day May, 2007 and for an order to the 3rd, 4th and Development Plan dated 18th day of May, 2007 and for an order to the 3rd, 4th and 5th defendants to re-open said access roads forthwith.*** 6. ***An order for eviction of the 1st and 2nd defendants, agents, employees, servants either by themselves or anyone else claiming on their behest from the access road and part of the Plaintiff’s parcel of land No. Chechelezi/261 measuring 161 by 102 feet within Isiiolo county and order of permanent injunction restraining the defendants either by themselves or anyone else claiming on their from further blocking the access road, fencing, cultivating, developing, occupying, wasting, altering, alienating, pulling down the Plaintiff’s fence or in any other way interfering with Plaintiff’s fence or in any other way interfering with plaintiff’s plot of Land No. Chechelezi measuring 161 by 102 feet within Isiolo County as per the Physical Development Plan dated 18th day of May, 2007.*** 7. ***Costs, interests and any other relief this Honourable court deems just and fit to grant.*** 8. The Appellant, who was the 1st Defendant, duly entered appearance and filed a statement of defence. The statement of defence is dated the 06.04.2017. The Appellant denied the assertions by /on behalf of the respondent. In addition, the appellant contended thus: The appellant is the owner of plot number 280 – Isiolo; the appellant’s plot borders the plot of the respondent; the respondent’s plot has direct access to the tarmac road; the appellant has not blocked the road of access; the appellant has not encroached onto the respondent’s plot; the appellant has built a stone walled round his plot; and the appellant’s development have not encroached onto on any road reserve. 9. The other defendants, namely the District Planning Officer Isiolo; The District Surveyor Isiolo; and the County Government of Isiolo, also entered appearance and filed a statement of defence. Notably, the said defendants [who have not been joined in this appeal for reasons known to the appellant] admitted that the respondent was the owner of the suit property. However, the named defendants denied the assertions that the appellant had encroached onto the road of access; and built on the road, either in the manner contended or at all. 10. The suit in the lower court was heard and disposed of *vide* Judgment dated the 31.07.2025 and wherein the learned trial magistrate [Hon. Lucy Mutai- Chief Magistrate] found and held that the respondent had established his case to the requisite standard. In particular, the learned trial magistrate held that the respondent had proved that the appellant had blocked one of the three [3] access roads, serving the suit plot; encroached onto the portion of the suit plot; and thus, trespassed upon the suit plot. 11. Having found and held that the respondent had proved his case, the learned trial magistrate proceeded to and entered Judgment in favour of the respondent. The terms of the Judgment that was delivered by the learned Chief Magistrate were: 12. ***That a declaration be and hereby issued that there are 3 roads of access surrounding the Plaintiff’s parcel of land No. Chechelezi/26 which measures 161 by 102 feet as per the Physical development Plan dated 18th day of May, 2007 and for an order to the 3rd, 4th and 5th Defendants to re-open the said access roads forthwith.*** 13. ***That an order for eviction be and is hereby issued of the 1st and 2nd defendants, agents, employees, servants either by themselves or anyone else claiming on their behest from blocking the access road, fencing, cultivating, developing, occupying, wasting, altering, alienating, pulling down the plaintiff’s fence or in any other way interfering with the Plaintiff’s plot of land No. Chechelezi/261/measuring 161 by 102 feet within Isiolo County as per the Physical Planner Development Plan dated 18th Day of May, 2007.*** 14. ***That the Plaintiff shall have the costs of the suit as well as interests.*** 15. Dissatisfied with the Judgment and the consequential decree arising therefrom, the appellant filed the current appeal *vide* Memorandum of appeal dated the 30.08.2025. The grounds underpinning the appeal are: 16. ***The learned trial magistrate erred in law and fact in failing to appreciate that the respondent had no business to claim for 3 access road surrounding his parcel land hence it is falls within ambit of public proceeding authorities act without involving the honorable attorney general as party in the suit.*** 17. ***The learned trial magistrate erred in law and in fact in failing to consider that the respondent did not call the one who he claimed that he had bought the land from as witness in his suit or produce sale of land agreement to support his claim.*** 18. ***The learned trial magistrate erred in law and in fact by failing to appreciate that the respondent had no locus standi to bring up the suit on behalf of the members of the public without involving the attorney general in the suit.*** 19. ***The learned trial magistrate erred in law and in fact in failing to consider the appellant buddle of documents to ascertain that the developments of his premises were approved by county government of* Isiolo and other governments agencies.** 20. ***The learned trial magistrate erred in law and in fact in failing to appreciate that the appellant was not served with any court order stopping developments which order the respondent did not produce as evidence in court.*** 21. ***That the learned trial magistrate erred in law and fact in giving Judgment in favour of the respondent when he had not proved his case on a balance of probability.*** 22. ***The Decision of the trial magistrate is without basis and a miscarriage of justice.*** 23. The subject appeal came up for direction[s] on the 04.06.2026, whereupon learned counsel for the appellant intimated that same had since filed the supplementary record of appeal, to include the proceedings of the trial court. In addition, learned counsel posited that the maiden record of appeal and the supplementary record of appeal, contained all the requisite documents and pleadings. To this end, counsel posited that the record of appeal was complete. Moreover, learned counsel sought directions as pertains the hearing and disposal of the appeal. 1. With the concurrence of learned counsel for the respondent, the court proceeded to and issued directions pertaining to the disposal of the appeal. The directions were: The appeal shall be canvassed by way of written submissions; the appellant shall file and serve the written submissions within 14 days from the date of the directions; the respondent shall file the written submissions within 14 days from the date of service; and the appellant shall be at liberty to file rejoinder submissions [if any] within 7 days from the date of service. 2. The appellant filed written submissions dated the 26.06.2026 and wherein the appellant has canvassed three[3] key issues. The issues are: Whether the respondent had locus standi to institute the primary suit; whether the respondent proved his primary case on a balance of probabilities; and whether the appellant’s developments on his parcel of land complied with the approved physical developments plans or otherwise. 3. Regarding the first issue, learned counsel for the appellant has submitted that the complaint by the respondent touched on and concerned the blockage of the public access road. Counsel submitted that the issue pertaining to and concerning public access roads are subject to regulations and maintenance by the respective governments, namely; the National Government and the County Government. To this end, it was contended that the respondent was not seized with the requisite locus standi [the Legal Capacity] to mount the suit before the lower court. 4. Additionally, it was submitted that it is only the respective governments, namely; the County Government and the National Government or the Attorney General, who can commence a suit touching on and concerning the blockage of public roads. 5. Simply put, learned counsel for the appellant has submitted that the respondent was devoid of locus. Absent locus, learned counsel for the appellant has posited that the respondent’s suit in the lower court, was premature and legally untenable. 6. To buttress the submissions touching on the question of locus standi, learned counsel for the appellant has cited various decisions. The decisions are: St**. John Mishomoroni Academy versus Yakub Shaban [2021] KEHC; Brian Asin and 2 others versus Wafula Chebukati and 9 others [2017] KEHC and Law Society of Kenya versus Communication Authority and 10 Others** [Supreme Court Petition No. 8 of 2020]. 7. The next issue that has been argued by learned counsel for the appellant touches on whether the respondent proved his claim in the lower court. It has been contended that the respondent did not prove ownership of the suit property in the lower court. Moreover, it has been submitted that even though the respondent had contended that same is the registered owner of the suit plot, the respondent did not tender any evidence of registration. In any event, it has been submitted that the only document that was produced by the respondent is a letter of allotment. 8. Learned counsel for the appellant contended that the letter of allotment by and of itself, does not denote ownership. To this end, learned counsel referenced the decision of the supreme court in the case of **Torino Enterprise Limited versus Attorney General [2023] KESC 79**, wherein the Supreme court underscored the legal implications of a letter of allotment. 9. The last issue that has been submitted on by learned counsel for the appellant, relates to whether the appellant’s development[s] were undertaken in accordance with the development plans and approvals. It was submitted that the appellant tendered and produced evidence showing that same was the owner of plot number 280 Chechelesi – Isiolo. In particular, it was posited that the Appellant: produced a copy of the approved development plans; and minutes of the Dispute resolutions, by a Committee of the County Government, which showed that his [appellant’s] development had not encroached onto the road of access. 10. In addition, it was submitted that the totality of the evidence tendered by and on behalf of the appellant showed that the appellant had not encroached onto the road of access. Furthermore, it was submitted that the respondent did not call any evidence, to rebut the evidence/testimony tendered by the appellant. In particular, it was submitted that the decision of the dispute resolution committee, which had been tendered by the appellant, was not impeached. 11. Premised on the foregoing, learned counsel for the appellant has submitted that the Judgment of the learned trial magistrate, is fraught with errors and thus same is manifestly unsafe. To this end, the court has been invited to find merit in the appeal; set aside the impugned Judgment; and dismiss the respondent’s suit in the lower court. 12. The respondent filed written submissions dated the 07.07.2026 and wherein same [respondent] has highlighted and canvassed three [3] key issues. The issues are: The respondent duly proved his claim in the lower court; the appellant did not tender any credible evidence to rebut the evidence by the respondent; and the decision [read Judgment] of the trial court is well grounded. 13. Regarding the first issue, learned counsel for the respondent has submitted that the respondent tendered before the lower court key documents, including; letter of allotment; part development plan and the master plan; which showed that there were three [3] roads of access surrounding the suit plot. In addition, it was submitted that the respondent also tendered a copy of the report which arose from the visitation to the locus in quo. In short, it was contended that the totality of the evidence showed encroachment on to the road of access and trespass onto the suit plot. 14. Secondly, it was submitted that the appellant herein did not contradict the evidence that was tendered by the respondent. Furthermore, learned counsel for the respondent has submitted that even though the appellant relied on the decision of the dispute resolution committee, the said decision was irregularly procured. In addition, it was contended that the appellant did not call the maker of the named document as a witness. In this regard, learned counsel for the respondent has submitted that the decision of the dispute resolution committee, which was relied upon by the appellant, was devoid of probative value. 1. With respect to the last issue, learned counsel for the respondent has submitted that the Judgment by the learned trial magistrate, considered all the issues that were canvassed before her and the conclusions; is backed by the evidence on record. It has been contended that the appellant had indeed encroached onto and blocked the road of access. Further, and in addition, it was posited that the final orders of the trial court are well grounded. 1. As a result of the foregoing, learned counsel for the respondent has submitted that the appeal before hand is devoid of merits and thus same [appeal] ought to be dismissed. Instructively, the court has been implored to dismiss the appeal and to affirm the Judgment of learned trail magistrate. The court has also been invited to award costs to the respondent. 1. Having reviewed the record of appeal; the grounds underpinning the memorandum of appeal; the evidence tendered [both oral and documentary]; the impugned Judgment; and upon consideration of the written submissions by/on behalf of the respective parties, three [3] key issues emerge for determination. The issues are: Whether the respondent was seized of the requisite Locus standi [capacity] to mount the suit pertaining to [sic] blockage of a public road of access or otherwise; Whether the respondent proved ownership of the suit property; and Whether the respondent proved the crux of his case [trespass] to the requisite standard or otherwise. 2. Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a first Appeal. By virtue of being a first Appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first instance. The court is obligated to review the evidence and determine whether the finding and conclusion arrived at by the trial magistrate accord with the evidence on record and the relevant legal principles. 3. The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding and conclusion of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principle, which vitiates the findings of the Trial Court. 4. Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. It is a jurisdiction that cannot be exercised for the mere asking. In addition, it cannot be invoked at will. **Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya,** regulates its exercise. 5. The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first Appeal, has been the subject of various court decisions. In the case of **Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR).** The Court of Appeal expounded on the scope of the jurisdiction. The court stated thus: *“46. We also wish to be guided by the reasoning of this court in the case of* ***Mwana Sokoni versus Kenya Business Limited (1985) KLR*** *931 page 934,934 thus:-“Although this court on Appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence on a first Appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses.”* 1. Recently, the Court of Appeal revisited the jurisdictional remit in the case of **Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR).** The Court highlighted the principle in the following manner: *“We have considered the Appeal, and this being a first Appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court, but of course, where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the*[*Civil Procedure Act*](https://new.kenyalaw.org/akn/ke/act/1924/3)*, which requires a first appellate court to re-evaluate, reassess, and reanalyse the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows: “Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage [which is denied to the courts of Appeal] of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.” [see also the decision in the case of* **County Government of Bungoma & 2 others v JOO & 2 others [2024] KECA 1377 (KLR) *and*****County Government of Narok v Ntutu & 2 others [2026] KECA 880 (KLR) –** [paragraphs 56 and 57 thereof]” 1. Bearing in mind the principles enunciated in the decisions [supra], I am now well poised to revert to the subject matter and to address the thematic issues highlighted elsewhere hereinbefore. I beg to start with the first issue, namely; Whether the respondent was seized with the requisite locus standi to mount the claim pertaining to blockage of [sic] the public road of access. 2. Learned counsel for the appellant has submitted that the respondent herein was devoid and divested of the requisite locus standi to mount the suit in the lower court. In particular, it has been submitted that matters touching on and concerning public roads of access; and their blockage [if any] are regulated by the respective governments. Moreover, it has been submitted that where a dispute touches on the existence of a road of access and its blockage, it is only the county government; the national government; or the Attorney General, who can mount the suit. 3. I do not wish to belabor the issue beforehand. However, it suffices to state that whenever, a road of access is blocked, any citizen of the republic of Kenya, who is affected by such blockage, is at liberty to approach a court of law for redress. In respect of the instant matter, the respondent had contended that the suit plot was surrounded by three [3] roads of access. In addition, the respondent posited that one of the roads of access, had been blocked by the appellant, together with the other defendants [who are not parties to the appeal]. 4. Where the respondent could show or demonstrate that his rights and interests, or those of other citizens, have been infringed upon, the respondent was at liberty to approach the court. It suffices to reiterate that the scope of locus standi, as pertains to public interest matters, [whether commenced *vide* ordinary suits or petition] has since been expanded following the promulgation of the **Constitution, 2010.** 5. In the case of **Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR),**the Court of Appeal [Five Judge bench] highlighted the scope of locus standi under the new constitution in the following manner: ***‘Moreover, we take note that our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under Article 10 of the Constitution by necessity and logic broadens access to the courts. In this broader context, this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. In the case at hand, the petition was filed before the High Court by an NGO whose mandate includes the pursuit of constitutionalism and we therefore reject the arguments of lack of standing by counsel for the appellant. We hold that in the absence of a showing of bad faith as claimed by the appellant, without more, the 1st respondent had the locus stand to file the petition. Apart from this, we agree with the superior court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution, which provides that:*** ***258.(1)Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—*** ***a. a person acting on behalf of another person who cannot act in their own name;*** ***b. a person acting as a member of, or in the interest of, a group or class of persons;*** ***(c) a person acting in the public interest; or*** ***(d)an association acting in the interest of one or more of its members.”*** ***28.It still remains to reiterate that the landscape of locus standi has been fundamentally transformed by the enactment of the Constitution in 2010 by the people themselves. In our view, the hitherto stringent locus standi requirements of consent of the Attorney General or demonstration of some special interest by a private citizen seeking to enforce a public right have been buried in the annals of history. Today, by dint of Articles 22 and 258 of the Constitution, any person can institute proceedings under the Bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest. Pursuant to Article 22 (3) aforesaid, the Chief Justice has made rules contained in Legal Notice No. 117 of 28th June 2013 – The Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules, 2013–which, in view of its long title, we take the liberty to baptize, the “Mutunga Rules”, to inter alia, facilitate the application of the right of standing. Like Article 48, the overriding objective of those rules is to facilitate access to justice for all persons. The rules also reiterate that any person other than a person whose right or fundamental freedom under the Constitution is allegedly denied, violated or infringed or threatened has a right of standing and can institute proceedings as envisaged under Articles 22 (2) and 258 of the Constitution.*** 1. I am alive to the fact that the court of appeal was dealing with a constitutional petition, as opposed to an ordinary suit. However, there is no gainsaying that the ratio [holding] in the said case, applies mutatis mutandis, to the subject matter. Moreover, I wish to add that the arguments and submissions, perpetrated by counsel for the appellant, are contra the provisions of **Article 48 of the Constitution, 2010.** 1. Finally, on this issue, I wish to underscore that the submissions by learned counsel for the appellant, if same were to hold sway, would certainly, take us back to the pre-Wangari Mathai days, when the Environmentalist [may her soul rest in peace] was denied access to justice on the basis of locus standi, much to the chagrin of many goodwill ambassadors. 2. I now wish to turn to the second issue. The second issue touches on and concerns whether the respondent proved ownership of and in respect of plot number 261 Chechelezi – Isiolo or otherwise. It was the respondent’s contention that same is the registered owner of the suit plot. To this end, the respondent tendered a copy of the letter of allotment dated the 23.06.1999 and a copy of the part development plan, relative to the suit plot. 3. The respondent may have deployed the term ‘registered owner/proprietor’, to describe his entitlement to the suit property. However, there is no gainsaying that the respondent has neither accrued nor procured a certificate of title or certificate of lease. The usage of the term registered owner appears to be a misnomer. 4. Be that as it may, what I hear the respondent to have been stating is to the effect that same holds a letter of allotment and an approved part development plan [PDP] over and in respect of the suit property. In addition, the respondent posited that he was in occupation of the suit plot. 5. The appellant herein filed a statement of defence and a witness statement. In the statement, which was adopted and constituted as the evidence in chief of the witness, the appellant herein clearly confirmed that he owns plot number 280 Chechelezi – Isiolo. The appellant further averred that he holds a letter of allotment over his plot. In addition, the appellant posited that his plot borders the plot belonging to the plaintiff on one side. 6. From the testimony that was tendered by and on behalf of the appellant, there is no gainsaying that the appellant admitted and conceded that the respondent was the owner of the suit plot. In addition, the appellant posited that his plot bordered the one of the respondent, on one side. Quite clearly, the question to whether or not the respondent was the owner of the suit plot, was not in contest. 7. It suffices to state that both the respondent and the appellant, are merely holding letters of allotment and approved part development plans. These are the documents that both of the parties, are relying on to underpin their plea of ownership. 8. The question that does arise, is how would the appellant, want to hold a letter of allotment as the basis of his ownership, while on the other hand, the same appellant is attacking the letter of allotment in favour of the respondent. Surely, the appellant cannot be allowed to speak from both sides of the mouth. The appellant cannot be allowed to approbate and reprobate at the same time. 9. Notwithstanding the foregoing, I also wish to underscore that the issue of whether the respondent was the owner of the suit plot, was not challenged before the lower court. The question of whether the respondent, had complied with the terms of the letter of allotment; whether the letter of allotment had lapsed or otherwise, were not raised before the lower court. In addition, the learned trial magistrate was not called upon to determine the named issues. 10. I wish to state that the appellant, cannot now raise and canvass new issues [which were not addressed] before the lower court, for the first time in this appeal. Such kind of endeavor is unacceptable. Such kind of attempts, if allowed, will occasion a miscarriage of justice. 11. In the case of **Afrison Export Import Limited & another v National Land Commission & 9 others [2026] KECA 1257 (KLR),** the court of appeal addressed the issue in the following terms: ***‘Time without number, the Supreme Court has reiterated the principle that an issue not taken up by the parties before the court below does not fall for determination by the court appealed to. In that regard we will only cite two decisions from the Supreme Court. In Mahamud vs. Mohamad & 3 Others; Muktar (Interested Party) [2019] KESC 70 (KLR), it was held that:“I agree and it follows that, if there is no determination by the Court of Appeal on an issue which is now before us, how then will the correctness of the “decision” by the superior Court be tested? With regard to the exercise of our jurisdiction under Article 163(4)(a) of***[***the Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***, how would a litigant fault the Court of Appeal on the basis of a particular interpretation or application of***[***the Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***? It is those lingering questions that lead me to the more persuasive conclusion that, in the absence of a determination by the Court of Appeal on a specific matter, no “appeal” can properly fall before the Supreme Court in exercise of its appellate jurisdiction save where the non- determination is itself the question placed before this Court in which case, the considerations would be completely different. This is because, the appellate jurisdiction of this Court is predicated upon specific findings by the Court of Appeal.”*** ***93.And, in Petition No. E018 of 2023 - Republic vs. Joshua Gichuki Mwangi, though a decision arising from a criminal matter, the Court stressed that:“The record also shows that issue of constitutionality of the sentence was raised for the first time before the Court of Appeal and introduced by way of submissions by counsel representing the Respondent. Having combed through the Record of Appeal and proceedings, we note that the constitutionality of the Respondent’s sentence was also not raised either before the trial court or the High Court. The Respondent having failed to raise the issue of the constitutionality of the mandatory minimum sentence imposed on him in his appeal before the High Court, it is obvious to us that he was precluded from addressing the issue on appeal before the Court of Appeal.”*** 1. I am duly guided. The appellant cannot be allowed to agitate the question of whether the letter of allotment held by the respondent suffices to underpin ownership of the suit property. At any rate, what is good for the goose, is also good for the gander. The appellant relies on the letter of allotment to underpin ownership of his plot number 280. However, the appellant does not want the respondent to do the same. 2. Next is the issue of whether the respondent proved blockage of the road of access; and trespass onto the suit property. To my mind, this is the crux of the appeal. Similarly, this was the crux of the dispute before the lower court. The conclusion on this key issue, will determine whether the impugned Judgment is well grounded or anchored on shaky grounds. 1. It is the respondent who had approached the lower court and contended that the appellant herein, together with the District Physical Planning Officer – Isiolo; District Surveyor – Isiolo; and the county government of Isiolo, had irregularly and unprocedurally attempted to interfere with the part development plan relating to the suit property and in particular, the area that was meant for the access road. In addition, the respondent contended that the appellant herein had ventured forward and erected a permanent building on the road of access, albeit under the watch of the 5th defendant [county government of Isiolo]. 2. Additionally, the respondent had posited that he endeavored to undertake survey but his efforts were frustrated/thwarted by [sic] the defendants. Furthermore, the respondent also posited that appellant and the 1st defendant [Raphael Ekwam Ebei] blocked the road of access and commenced to build on a portion of the respondent’s land. 3. Flowing from the foregoing assertions, the respondent sought the intervention of the court, to inter alia; declare that the suit plot is surrounded by three [3] roads of access; the appellant and the defendants [who have not been included in the appeal] have blocked the road of access; and the appellant and the defendants have encroached onto the suit property. 4. The learned trial magistrate reviewed the evidence of the respondent [PW1] and the evidence of the district physical planner [PW2]; and thereafter came to the conclusion that the respondent had established the existence of inter alia three [3] roads of access surrounding the suit property; and encroachment onto a portion of the suit property. In particular, the learned trial magistrate referenced and relied on the evidence of PW2. 5. Be that as it may, what is so apparent is to the effect that the learned trial magistrate did not properly internalize the totality of the evidence that was tendered by PW2. In particular, the learned trial magistrate failed to appreciate that in determining the existence of a public road of access, it was imperative to reference the cadastral plan [survey plan] which would no doubt show whether or not the roads complained of, were indeed surveyed and demarcated on the ground. Notably, no cadastral plan was tendered before the trial court. 6. Secondly, the learned trial magistrate also failed to appreciate the legal implication and scope of a party development plan. Suffice it to underscore that a part development plan is preliminary document, whose purpose is to ascertain the existence of the plot, for alienation; or for a particular project. [See **Section 3 of the Physical Planning Act, Chapter 286, Laws of Kenya** – now repealed, which was the act in operation at the point in time]. 7. To my mind, the part development plan which was tendered and produced by PW1 [the respondent], could not authoritatively, be relied upon to return a finding about the existence of the road of access. Instructively, a court of law should evaluate the documents tendered by/on behalf of the parties; and view the documents from a legal perspective, in discerning, whether the document tendered is credible; and thereafter assign probative value. It is not enough that a document was admitted. In any event, admissibility /production of a document, is one thing, proof of the document is another. [See the holding of the court of appeal in the case of **Kenneth Mwige Nyaga versus Austin Kiguta [2015] eKLR**] . 8. Furthermore, the learned trial magistrate proceeded and held that there had been encroachment on the suit property even though the evidence tendered by PW2 was contradictory. This is what PW2 stated while under cross examination: **“*The land is in more than two plots, i.e 100X100. On the ground there are two [2] access roads. The plaintiff is not landlocked. He has two alternative roads. The plaintiff’s land has been encroached slightly. There is no encroachment. All properties within the suit premises have access to public roads. The work I did is contained in my report.”*** 1. The evidence which was deployed by the learned trial magistrate in coming to the conclusion that there were three [3] roads of access; and encroachment onto the respondent’s land, is fraught with inherent contradictions. The contradiction[s] negate the probative value and credibility of the evidence. The impugned evidence could not and cannot be relied upon, to found a finding of [sic] trespass/encroachment. 1. Other than the foregoing, I also wish to underscore that the determination of whether or not, there is encroachment onto a portion of land, requires production of a surveyor’s report. It suffices to state that a surveyor is the expert who is obligated to undertake survey works; prepare surveyor’s report; and tender expert evidence, pertaining to [sic] encroachment. The foregoing position was highlighted by the court of appeal in the case of **Kenya Power and Lighting Limited versus Margaret Okoth Olang [2017] eKLRl; and Jamal Salim and another versus Yusuf Abdullahi and another [2018] eKLR, respectively**. 2. Moreover, I wish to reference the decision by the Dispute Resolution Committee, dated the 12.06.2012, which had been tendered and produced as exhibit D4 by the appellant. The resolution under reference appears to have determined the dispute as to whether or not the appellant, had constructed on a road reserve and blocked a public access road. For good measure, the designated committee of the county council of Isiolo [now defunct] clarified that the appellant had not constructed on the road reserve in the manner that was contended by the current respondent. 3. Suffice it to state that it is the current respondent, who had lodged the complaint before the dispute resolution committee of the county council of Isiolo. His complaint was found to be devoid of merits. The document in question was critical in determining the dispute that was placed before the lower court. Sadly, the learned trial magistrate did not take the contents of the exhibit [exhibit D4 ] into account. Moreover, the learned trial magistrate did not even reference the contents of the said exhibit in her Judgment. 4. I hold the humble view that had the learned trial magistrate, considered the contents of exhibit D4, same, would no doubt , have come to a contrary position /conclusion. This aspect represents a basis to warrant departure from the findings of the trial court. [See the ratio in the case of **Jabane versus olenja [1986] eKLR**, *which highlights the parameters/guidelines regulating the circumstance under which the 1st appellate court can differ with the findings of the trial court*]. 5. Finally, I wish to highlight the position that the burden of proving the existence of [sic] the three [3] roads of access; and the encroachment onto a portion of the suit property, fell on the shoulders of the respondent. The respondent was obliged to tender before the trial court credible evidence. Suffice it to state that discharge of the evidential burden, is not surmounted by merely throwing certain pieces of documents before the court. On the contrary the documents, to be relied upon, must command some weight in the eyes of the law. [See the holding of the supreme court in case of **Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] KESC 66 (KLR**) – at paragraphs 49 – 51 thereof]. **Conclusion** 1. It is the respondent who had sought to persuade the court the court to find and hold that the suit property was surrounded by three [3] roads of access; and that the appellant had encroached onto the suit property. To this end, the respondent was enjoined to tender credible evidence before the trial court. It was not enough to produce a copy of the part development plan [which is a planning document/tool] and thereafter imagine that the same would suffice. 2. Towards proving the existence of the three [3] roads of access, it behooved the respondent to tender inter alia a copy of the cadastral plan, which is a survey document; and which would have shown the ground location of the roads of access [if any] and the extent thereof. In addition, a surveyor’s report would have been helpful. 3. The respondent, in my humble view, did not discharge the burden of proof. Moreover, the learned trial magistrate, did not appreciate the totality of the evidence that was tendered. Besides, the learned trial magistrate did not subject the documentation to ‘weighting’ in accordance with the law. 4. The conclusion[s] and finding[s] by the learned trial magistrate, do not accord with the evidence. In this regard, I come to the conclusion that the impugned Judgment is not well grounded. Certainly, the Judgment invites the intervention of this court. **Final orders:** 1. Flowing from the analysis contained elsewhere in the body of the Judgment, the final orders that commend themselves to the court are: 2. ***The Appeal be and is hereby Allowed.*** 3. ***The Judgment of the learned trial magistrate dated the 31.07.2025; and the consequential decree, arising therefrom be and hereby set aside.*** 4. ***In lieu thereof, there be and is hereby substituted an order dismissing the respondent’s suit in the lower court.*** 5. ***The Appellant be and is hereby awarded costs of the appeal.*** 6. ***The Appellant is similarly, awarded costs of the suit in the lower court.*** 7. ***The Costs in terms of clause [iv] and [v] shall be agreed upon and in default, same shall be taxed in the conventional manner***. 8. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU THIS 13TH DAY OF JULY, 2026** **OGUTTU MBOYA, FCIArb; CPM [MTI].** **JUDGE** In the presence of**:** Court Assistant: Zakayo Mr. Carl Peters Mbaabu for the Appellant Mrs. Mercy Kaume for the Respondent