https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3795

Warano v Guyo (Environment and Land Appeal E033 of 2025) [2026] KEELC 3795 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELC 3795 (KLR) Republic of Kenya In the Environment and Land Court at Isiolo Environment and Land Appeal E033 of 2025 JO Mboya, J June 18, 2026 Between Roba Wako Warano Appellant and Fayo Guyo Respondent (Being an appeal form the Judgment and decree of Honorable W K Cheruiyot of the Principal Magistrates Court Moyale delivered on the 12.11.2025) Judgment 1.The Appellant herein was the plaintiff in the lower court. The same approached the court vide Plaint dated the 18.10.2022; and wherein the Appellant sought the following reliefs:i.An order estopping the defendant from encroaching, trespassing, interfering with, selling, cultivating, accessing and or dealing with the property known as plot number 927 Holale in any manner whatsoever.ii.A permanent injunction restraining the Respondent either by himself, his servants, agents or any person acting under his instructions from trespassing, encroaching upon, interfering with, leasing, transferring , selling, excavating, cultivating, or in any manner whatsoever dealing with the property known as plot number 927 Holale.iii.A declaration that the plaintiff is the true owner of the property known as plot number 927 Holaleiv.Costs of the suit.v.Any other relief that the court may deem just to grant. 2.The Appellant’ s suit in the lower court was premised on various assertions. The assertions were: the Appellant gained possession of the suit property from his forefathers; the Appellant has been in possession of the suit property; the Appellant’s occupation of the suit property was exclusive; the possession remained with the Appellant until the year 2020; the Respondent herein encroached upon the suit property; and the Respondent commenced to lay a claim to ownership of the suit property. 3.Furthermore, the Appellant posited thus: the dispute pertaining to ownership of the suit property was referred to the elders; the elders convened Barazas; the Barraza[s] unanimously declared the Appellant as the owner of the suit property; the Respondent was not satisfied; the Respondent felt aggrieved; and the Respondent commenced to threaten/ intimidate the Appellant with death. 4.The Appellant further contended that on the basis of acquisition of the suit property from his forefathers; and coupled with his exclusive possession, the Appellant is the lawful owner of the suit property. To this end, the Appellant sought the reliefs, whose details have been adverted to elsewhere hereinbefore. 5.The Respondent duly entered appearance, filed a statement of defence and counter claim. The Respondent denied the Appellant’s claim. In addition, the Respondent posited thus: the property being claimed by the Appellant was illegally excised from the larger portion of land belonging to Wako Wario alias Waqo Wario [deceased]; the land does not belong to the Appellant; the Appellant has no rights to and interest over the disputed plot; the documents being relied upon by the Appellant confirm that the land belong[s] to Wako Wario [deceased]; the Appellant is seeking to defraud the estate of Wako Wario; and the Appellant’s claim is misconceived and legally untenable. 6.Flowing from the foregoing, the Respondent, who had procured a grant of letters ad litem, sought the following reliefs vide the counter claim:a.A permanent injunction restraining the defendants, their servants, agents and or anyone acting on their behest from disposing of, selling, transferring or otherwise dealing with the resultant subdivision [plot number 927 Holale] or the unregistered land parcel measuring approximately 15 acres [holale- Butiye Locationb.Cancellation of title to or ownership of the subdivision [plot number 927 Holale] or the unregistered land parcel measuring approximately 15 acres [holale- Butiye Location] and the ownership of the said plot to revert to the estate of Wako Wario alias Waqo Wario [deceased] for purposes of distribution upon hearing and determination of the suit.c.Costs of the suit.d.Any other relief that the court may deem fit to grant. 7.The suit by /on behalf of the parties was heard and disposed of vide the Judgment delivered on the 12.11.2025 and whereupon the learned trial magistrate Hon. W. K Cheruiyot – P M ] found and held that the Appellant had not proven his claim of ownership over and in respect of the suit property. Moreover, the learned trial magistrate [the Court] held that the documentation that the Appellant had relied upon showed that the plot in question formed part of the land belonging to Wako Wario [deceased]. 8.Premised on the foregoing findings, the learned trial magistrate returned a conclusion that the Appellant had not proved his claim to the suit property. To this end, the learned trial magistrate proceeded to and dismissed the Appellant’s suit with costs. On the contrary, the learned trial magistrate found and held that the documentation tendered and forming part of the record, showed that the plot in question and by extension the land belonged to Wako Wario [ deceased]. In this regard, the trial magistrate allowed the counter claim and decreed that the suit property formed part of the estate of Wako Wario. 9.It is the said Judgment and the consequential decree which aggrieved the Appellant and thus provoking the filing of the subject appeal. The Appellant has approached the court vide memorandum of appeal dated the 08.12.2025. 10.The grounds at the foot of the memorandum are:i.That the learned Honourable trial magistrate erred misdirected herself in allowing the Respondents counterclaim which is ill pleaded and the prayers sought thereon were not proved by the Respondent.ii.That the learned Honourable trial magistrate erred in fact and in law in disregarding the fact that the Appellant has been in occupation of the suit property known as plot number 927 Holale for over 12 years and has been paying rates for the said property through the years.iii.That the learned trial magistrate erred in law and in fact in agreeing with the Respondents that a grant ad litem is sufficient proof of ownership of property plot number 927 Holale without birth certificates, certificate of death and full succession proceedings in the estate of the alleged deceased Waqo Wario.iv.That the learned trial magistrate erred in law in allowing the Respondents counterclaim without any proof whatsoever not even a surveyor’s report to ascertain the alleged measurements of the suit property as 15 acres.v.That the learned trial magistrate erred in law and in fact in disregarding that the Appellants evidence was accompanied by the conclusion of the meetings in the barazas where the baraza declared the plaintiff the true owner of the property known as Plot No. 927 Holale.vi.That the learned trial magistrate erred in law and in fact by entering Judgment in favour of the Respondent and dismissing the Appellants suit. 11.The Appeal came up for directions on the 04.05.2026, whereupon learned counsel for the Appellant confirmed that the same had filed and served the record of appeal. In addition, learned counsel posited that the record of appeal was complete. Thereafter, counsel sought direction[s] as pertains to the hearing and disposal of the appeal. Moreover, counsel proposed to canvass the appeal by way of written submissions. 12.With the concurrence of learned counsel for the Respondent, the court proceeded to and issued directions. The directions were: the appeal shall be heard before one Judge sitting at Isiolo for one day; the appeal shall be canvassed by way of written submissions; the Appellant shall file and serve written submissions within 14 days from the date of the directions; the Respondent shall file and serve written submissions within 14 days from the date of service; and the Appellant shall be at liberty to file and rejoinder submissions [if any] within 7 days from the date of service. 13.The Appellant filed written submissions dated the 15.05.2026. The Appellant has highlighted and canvassed four [4] key issues. The issues are: the Appellant duly proved ownership of the suit property; the Respondent herein did not prove/establish entitlement to the suit property; the learned trial magistrate misapprehended and misapplied the evidence on record; and the learned trial magistrate failed to appreciate that the Appellant has acquired title to the property vide adverse possession. 14.Additionally, it has been submitted that the learned trial magistrate erred in fact and in law, in finding and holding that the Respondent was entitled to the suit property on the basis of a grant of letter of administration ad litem, which document cannot anchor a claim for ownership of land. 15.The learned counsel for the Appellant thereafter cited and referenced the holding in the case of Caroline Awinja Ochieng and another versus Jane Anne Mbithe Gitau and others [2015] eKLR, wherein the court [per Justice J. L Onguto Judge – as he then was] addressed the manner of interrogating ownership of land, which has not been subject to registration, namely; unregistered Land. 16.Furthermore, Learned Counsel posited that the Appellant had established his claim to the suit property and thus the learned trial magistrate ought to have returned a finding in his favour. 17.Flowing from the foregoing, learned counsel for the Appellant has invited the court to find and hold that the appeal beforehand is meritorious and thus same ought to be allowed. The court was implored to allow the appeal, set aside the impugned judgment, and grant the relief[s] vide the Plaint dated 18.10.2022. 18.The Respondent filed written submissions dated the 28.05.2026 and wherein same has highlighted three [3] key issues. The issues are: Whether the learned trial magistrate erred in dismissing the Appellant’s suit; Whether the learned trial magistrate correctly allowed the counter claim; and Whether the appeal discloses any basis to warrant interference with the Judgement and the consequential decree of the lower court. 19.Furthermore, learned counsel for the Respondent has submitted that even though the Appellant contended to be the lawful owner of the suit property, the documentation [exhibits] tendered by the Appellant clearly confirmed that the suit property forms part of the land belonging to Wako Wario[deceased]. In particular, learned counsel for the Respondent has referenced exhibit P2 and exhibit P6, respectively. 20.Further, and in addition, learned counsel for the Respondent has submitted that the Appellant tendered contradictory evidence concerning the manner in which same [Appellant] is said to have acquired the suit property. Counsel posited that the Appellant had averred that the suit property was acquired from his forefathers, but changed tune during cross examination and posited that the suit property was allocated to him by the Government. To this end, it was submitted that the Appellant failed to discharge the burden of proof, which clearly fell on his shoulders. 21.Flowing from the foregoing, learned counsel for the Respondent has invited the court to find and hold that the instant appeal is devoid of merits and thus courts dismissal. The court has been implored to dismiss the appeal; affirm the Judgment of the learned trial magistrate; and award costs of the appeal to the Respondent. 22.Having reviewed the record of the appeal; the pleadings that the were filed by the parties, the evidence that was tendered [both oral and documentary]; the Judgment of the lower court; and upon taking into account the written submissions by /on behalf of the parties, two[2] key issues crystalize for determination.The issues are:Whether the Appellant duly proved/established his claim as pertains to ownership of plot number 927 Holale [the suit property]; and whether the learned trial magistrate misapprehended/misconstrued the evidence on record or otherwise. 23.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[s] arrived at by the trial magistrate accord with the evidence on record and the legal principles. 24.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[s] and conclusion[s] 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. 25.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. 26.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. 27.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.” 28.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, 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]” 29.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 Appellant duly established/proved his claims as pertains to ownership of the suit property or otherwise. 30.It is imperative to recall and reiterate that the Appellant approached the lower court contending that he is the lawful owner of the suit property. The Appellant asserted that what constitutes the suit property, was acquired from his forefathers and that thereafter he [Appellant] took possession; remained in exclusive possession until the year 2020, when the Respondent interfered with his possession and commenced to lay claim to the plot. 31.It was the further assertion by the Appellant that when the Respondent encroached upon the suit property and thereby interfered with his ownership rights, he lodged a complaint with the elders culminating into the convention of a baraza. In addition, the Appellant posited that the dispute pertaining to the suit property was adjudicated upon by [sic] the baraza, who returned a finding that the land belongs to the Appellant. 32.Moreover, it was the Appellant’s position that he applied to the county council of Moyale to register unregistered land; and that his application was allowed. The Appellant further averred that he thereafter commenced to pay rates to the county council of Moyale [defunct]. In this regard, the Appellant referenced exhibit P3, which is said to be a receipt for payment of [sic] land rates and rents. 33.The foregoing factual matrix represents the state of affairs that was presented to the learned trial magistrate by the Appellant. One would have expected the Appellant to tender and adduce evidence to prove the said assertions or averments. In any event, it is not lost on me that the Appellant bore the burden of proving the assertions. The standard of proof is settled. The standard of proof is on a balance of probabilities. [See the holding of the court of appeal in the case[s] of Daniel Toroitich Arap Moi versus Mwangi Stephen Mureithi [2014] eKLR; James Muniu Mucheru versus National Bank of Kenya [2019] eKLR and Gatirau Peter Munya versus Dickson Mwenda Kithinji and others [2014] eKLR,] respectively. 34.Did the Appellant prove his assertions? Instead of tendering evidence to show that he acquired [sic] the suit property from his forefathers, the Appellant averred during his evidence in chief that the suit plot was given to him by the Government. The Appellant further averred that the plot was given to him in 1982. In addition, the Appellant posited that in the year 2011 he proceeded to and caused the plot to be registered with the county council of Moyale [now defunct]. 35.There is no gainsaying that the evidence that was being tendered by the Appellant, who was the sole witness, was at variance with and contradictory to the assertions that had been pleaded. The evidence tendered did not prove the assertions. On the contrary, the evidence tendered showed that the Appellant was devoid of candor. In simple terms, the Appellant was not credible in his claims before the court. 36.It is also important to recall that when the Appellant was subjected to cross examination, the Appellant conceded that he did not get/obtain the suit land from his forefathers as posited in paragraph [c] of the plaint. Worse still, the appellant herein denied the signature which was affixed at the foot of the verifying affidavit attached to his own plaint. 37.As if the foregoing is not enough, the Appellant herein acknowledged that the application form [exhibit P2] showed and confirmed that the plot which he was seeking to register with the county Council of Moyale actually formed part of the land belonging to Wako Wario [deceased]. However, the Appellant was at pains to explain how a portion of land belonging to Wako Wario [deceased] could be curved out and thereafter be registered in his name, yet he admitted that Wako Wario died around the year 1986/1987. 38.Other than the foregoing, it is also important to highlight that the Appellant also conceded that even though a portion of the land belonging to Wako Wario [deceased] was being registered in his name, Wako Wario did not give any comments in the application form. 39.I do not really understand what comments Wako Wario [deceased] would have given, taking into account he died long before the year 2011 when the impugned application form was being engaged with. Nevertheless, there is no gainsaying that the dead person could not posthumously, have sanctioned the impugned transaction. Quite clearly, the transaction underpinned vide exhibit P2, was a fraud and illegality. The same cannot anchor any legitimate rights in favour of the Appellant. 40.I now wish to turn to the contention that the suit plot was registered in the name of the Appellant. It is instructive to state that the Appellant indicated that the suit plot is registered with the county council of Moyale [now defunct] and that same was assigned as plot number 927. However, I have searched for evidence to show that the suit plot was registered and was assigned the said number. For good measure, there is no such document that was ever tendered before the lower court. The application form [exhibit P2] and the purported receipts for payments of land rates and rents [exhibit P3] do not contain any such number. 41.One would have expected some sort of documents, to show the process leading to [sic] the registration and ultimate issuance of a plot number. However, none was tendered. Notably, the plot number namely; plot number 927 Holale, is only referenced in the correspondence by the Appellant’s counsel, which were produced as exhibit P5 and P7, respectively. 42.Finally, it is also instructive to underscore that exhibit P6 [the determination of the baraza] which was relied upon by the Appellant clearly confirmed that the land in dispute belonged to Wako Wario. [See minute 6/2020 – Elders reactions]. 43.Surely, the Appellant herein did not seem to apprehend the contents of his own exhibit[s]. I am not sure why the Appellant did not appreciate all the contradictions that were apparent in his own exhibit[s]. However, it is not lost on me that evidence tendered before the court [whether oral or documentary] cannot be owned by a person. Simply put, the adverse party can reference and rely on the evidence of the opposite party, for as long as that piece of evidence supports/ vindicate the adverse party; or the case for the said adverse Party. 44.I beg to state that the Appellant was obligated to tender credible evidence before the lower court. The Appellant failed to do so. Moreover, it is evident that the Appellant’s case is loud on allegations, but quiet /silent on proof. 45.I beg to underscore that a court of law only relies on evidence in discerning whether a fact, or set of fact[s] has been proved or not. Bare assertions, speculation, conjecture and hypothesis, do not help. [ See the provisions of Section 3[2] of the Evidence Act, Chapter 80, Laws of Kenya] 46.In the case of Presbyterian Foundation v Kibera Siranga Self Help Group Nursery School [2023] KECA 371 (KLR), the court of appeal addressed the manner of proving a civil case. The court went forward and highlighted the relevant elements that guide the determination of weight [probative value] to be assigned to the testimony of a witness. 47.The court stated thus:(29)In civil cases the measure of proof is a preponderance of probabilities. Where there are two stories mutually destructive, before the onus is discharged, the court must be satisfied that the story of the litigant upon whom the onus rests is true and the other is false. The question to be decided will always be: which of the versions of the particular witnesses is more probable considering all the evidence as well as all the surrounding circumstances of the case. In Stellenbosch Farmers Winery Group Ltd & another v Martell & others 2003 (1) SA 11 (SCA) at para 5 the South African Supreme Court of Appeal explained how a court should resolve factual disputes and ascertain as far as possible, where the truth lies between conflicting factual assertions. It stated: “To come to a conclusion on the disputed issues a court must make findings on(a)the credibility of the various factual witnesses;(b)their reliability; and(c)the probabilities.As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as(i)the witness' candour and demeanour in the witness-box,(ii)his bias, latent and blatant,(iii)internal contradictions in his evidence,(iv)external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions,(v)the probability or improbability of particular aspects of his version,(vi)the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events.As to (b), a witness' reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof.As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party's version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it.The hard case, which will doubtless be the rare one, occurs when a court's credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.” 48.To my mind, the Appellant herein did not his case [if at all] to the requisite standard. On the contrary, the evidence by the Appellant breached the Doctrine of departure in terms of Order 2 Rule 6 of the Civil Procedure Rules, 2010. 49.Next is the issue as to whether the learned trial magistrate misapprehended and misconstrued the evidence that was tendered before him and thus arrived at erroneous conclusion in holding that the suit property belonged to and formed part of the estate of Wako Wario [deceased]. To start with, the learned trial magistrate appreciated the contents of exhibit P2 [the application form that was made to the county Council of Moyale [now defunct] and observed that it showed that the owner of the shamba [land] was Wako Wario. 50.Additionally, the learned trial magistrate also took cognizance of the minutes [Exhibit P6 ] which was tendered by the Appellant and wherein the elders pointed out that the land in question belonged to Wako Wario [deceased]. 51.Moreover, it is not lost on me that the learned trial magistrate interrogated the evidence tendered by the Appellant, in an endeavor to discern how the Appellant could have acquired a portion of land belonging to the deceased, albeit without the sanction of the deceased. Notably, the learned trial magistrate held that the Appellant herein instead of justifying his documents, sought to run away from same. This observation is well grounded; and justifiable from the evidence on record. 52.I am unable to apprehend the basis of the Appellant’s complaints against the findings and conclusion of the learned trial magistrate. Be that as it may, I hasten to state that the findings; conclusions; and the holdings by the learned trial magistrate accord with the evidence on record. The findings are well grounded. Conclusion. 53.It is trite and established that the first appellate court is mandated to review, re-evaluate and scrutinize the evidence that was tendered before the lower court. In addition, the appellate court is at liberty to depart from the findings of the lower court. However, the appellate court can only depart, if and only if, the findings of the lower court are at variance with or contradictory to the evidence on record. 54.However, in respect of the instant matter, the totality of the evidence tendered align with the findings and conclusions of the learned trial magistrate. I have no basis to depart from the clear findings and apt analysis by the learned trial magistrate. 55.The findings and conclusions deserve affirmation. Same are hereby affirmed. Final orders: 56.Flowing from the foregoing analysis the final orders that commend themselves to the court are:i.The Appeal be and is hereby Dismissed.ii.The Judgment of the learned trial magistrate dated and delivered on the 12.11.2025 be and is hereby Affirmed.iii.Costs of the Appeal be and are hereby awarded to the Respondents.iv.The Costs in terms of clause [iii] shall be agreed upon and in default be taxed in the conventional manner. 57.It is so ordered. DATED, SIGNED AND DELIVERED AT ISIOLO ON 18TH JUNE, 2026.OGUTTU MBOYA; FCIArb; CPM [MTI-EA].JUDGE.In the presence of:Court Assistant: Zakayo /MukamiMs. Rosemary Monyangi for the AppellantMs. Odoyo for the Respondent