https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3288

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELCEPA NO. E007 OF 2024** **ROBERT YOTA SIBO ………………….……..……… 1ST APPELLANT** **BUXTON MBUGUA MUGO ……………..…....……. 2ND APPELLANT** **PERIS WAKIO KIAMBU ………………….…......... 3RD APPELLANT** **VERSUS** **KELVIN LUNANI …………………………..….…...….. RESPONDENT** **JUDGMENT** **Background** 1. This is an Appeal arising from the judgment of the Honorable Joshua Nyariki, SRM, delivered on 16th July 2024 in Mombasa PMCELC Case No. E076 of 2023. 2. By a Plaint dated 24th April 2023, Kelvin Lunani (the Respondent herein) had sought judgment against the Appellants for: 3. **An order of mandatory injunction directing the 3rd Defendant to demolish that structure in the form of Swahili house erected on a plot measuring 45ft by 65ft erected on an excised parcel of land situate at** **Kadzandani (Plot Nos.244, 243 & 241 MN/I);** 4. **An order of vacant possession;** 5. **Mesne profits from April 2023 to date of granting vacant possession; and** 6. **Costs of the suit.** 7. Those prayers arose from the Respondent’s contention that vide a Sale Agreement dated 6th March 2005, he had purchased from the 1st Appellant a parcel of land measuring 45ft by 65ftwhich parcel was to be curved out of the property known as 244, 243 and 241 MN/I situate in Kadzandani in Bamburi, Mombasa County at the sum of Kshs. 100,000/=. 8. It was the Respondent’s case that upon payment of the full purchase price, he fenced off the property using poles and barbed wire and did occasionally visit the same to confirm it was devoid of any trespass. It was further the Respondent’s case that in October 2009, the 2nd Appellant herein unlawfully commenced construction on the land by erecting a concrete structure thereon. The Respondent asserted that on discovering the same, he reported the matter to the Kisauni Area Chief who summoned the 2nd Appellant and the 2nd Appellant told the Chief he had purchased the land from the 1st Appellant. 9. Robert Yota Sibo, Buxton Mbugua Mugo and Peris Wakio Kiambu (the Appellants herein) filed a joint Statement of Defence dated 22nd August 2023. In that Statement of Defence, the 1st Appellant denied having entered into any Sale Agreement with the Respondent and asserted that he had sold the land to the 2nd Appellant through a Sale Agreement dated 27th November 2008. 10. It was the 2nd Appellant’s case that he was within his rights to construct on the property having purchased the same. The 2nd Appellant asserted that he had sold the suit property to the 3rd Appellant vide a Sale Agreement dated 24th March 2023. In the same vein, the 3rd Appellant asserted that she was the bona fide owner of the suit property. 11. Having heard the parties and in his judgment delivered on 16th July 2023, the Learned Trial Magistrate allowed the Respondent’s case and directed the 3rd Appellant to demolish the Swahili house erected on the land and to proceed to vacate the same forthwith. 12. Aggrieved by the said determination the Appellants moved to this Court and lodged a Memorandum of Appeal dated 9th August 2024 wherein they urged the Court to set aside the judgment on some eleven (11) grounds listed as follows: 13. **That the Learned Magistrate erred in law and in fact and completely misdirected himself by failing to appreciate that the parties are bound by their pleadings and that therefore the prayers as sought are incapable of being granted for reasons that they touch on parcels of land of unsuspecting individuals not party to the suit;** 14. **That the Learned Magistrate erred in law and in fact in making his own assumptions, suppositions and conjecture by concluding that the Plaintiff had proved his case on the required standard of balance of probabilities despite the Plaintiff failing to discharge the burden cast upon him;** 15. **That the Learned Magistrate erred in fact and in law by finding that the sale agreement between the Plaintiff and the 1st Defendant was duly executed and witnessed by the parties and therefore valid without giving reasoning as to the finding thereto;** 16. **That the Learned Magistrate erred in law and in fact by failing to appreciate that the validity of the sale agreement between the Plaintiff and the 1st Defendant was questioned and that therefore the questions raised ought to have been satisfactorily dealt with and reasons given prior to making his findings;** 17. **That the Learned Magistrate erred in fact and in law by failing to take into account and completely failing to consider the overwhelming well-founded evidence of the expert witness DW1 before making his findings;** 18. **That the Learned Magistrate erred in fact and in law by failing to test the conflicting expert testimonies against the background of all other evidence in the case in order to decide which expert evidence has a sound legal basis;** 19. **That the Learned Magistrate erred in fact and in law by failing to consider the admission by the expert witness PW2 that the standard number of sample signatures required to make a meaningful comparison is more than six yet he only used one sample signature and its significance thereof;** 20. **That the Learned Magistrate erred in law and in fact by applying selective justice and blindly endorsing the impugned sale agreement between the Plaintiff and 1st Defendant but completely failing to consider the sale agreement between the 1st Defendant and 2nd Defendant and its import therein;** 21. **That the Learned Magistrate erred in fact and in law by failing to take into account the Defendant’s cross-examination of the Plaintiff, more specifically PW1, and failing to take cognisance of the contradictions in his testimony;** 22. **That the Learned Magistrate erred in fact and in law by failing to take into account the Defendant’s written submissions thereby arriving at the wrong conclusion; and** 23. **That the Learned Magistrate erred in Law and in fact by misapprehending the evidence and misapplying, misunderstanding and overlooking the correct legal principles and judicial precedent applicable in the circumstances.** 24. As a first appellate Court, the duty of this Court is to re-evaluate the evidence that was adduced in the subordinate Court both on the facts and the law and to arrive at its own conclusion bearing in mind the fact that it did not have the opportunity of seeing and hearing the witnesses first hand ***(see Selle & Another –vs- Associated Motor Boat Co. Ltd & Others (1968) EA 123).*** **Analysis and Determination** 1. By a Plaint dated 24th April 2023 as filed in the Lower Court, the Respondent had sought for a mandatory order of injunction directing the 3rd Defendant to demolish the structure said to be in the form of a Swahili house which had been erected on the parcel of land known as Plot No. 244, 243 and 241 Mainland North, situated at Kadzandani within Mombasa. In addition, the Respondent had sought for an order of vacant possession, plus costs. 2. Having heard the matter and in the judgment delivered on 16th July 2024, the Learned Trial Magistrate found for the Respondent and issued the orders sought in the Plaint. 3. Testifying before the Court, the Respondent asserted that he had purchased the suit property from the 1st Appellant vide a Sale Agreement dated 6th March 2005 at a consideration of Kshs. 100,000/=. It was the Respondent’s case that immediately upon purchase, he had fenced it off using poles and barbed wire. He told the Court that the property had remained vacant until early April 2023 when he was alerted that the 3rd Appellant had erected a structure in the form of a Swahili house on the land. 4. On his part, the 1st Appellant vehemently denied that he had ever sold the land to the Respondent. He told the Court that he had inherited the suit property from his mother and that he had only sold the same to the 2nd Appellant vide a Sale Agreement dated 27th November 2008. According to the 2nd Appellant, he had in turn sold the land to the 3rd Appellant by a Sale Agreement dated 24th March 2023. 5. In allowing the Respondent’s suit the Learned Trial Magistrate concluded as follows at Page 15 of the impugned judgment: **“In this particular suit the Plaintiff alleged that the property was sold to him by the 1st Defendant who denied any involvement with the Plaintiff or knowing him. According to PW2 who was a document examiner with over 30 years’ experience and prepared a report where he opined that the signatures on the sale agreement and affidavit dated 8th May 2023 were made by the same person. He got similarities including the signature were from a common origin (sic).** **It is the Court’s opinion that the sale agreement was duly executed and witnessed by parties. Similarly, the 1st Defendant was purely identified through his signature. In my view therefore, I find the agreement valid in law as provided under Section 3(3) of the Law of Contract and Section 38 of the Land Act. Therefore, given the sale agreement was clear, unambiguous, lawful and there being no pleading by the Plaintiff it was illegal, or executed under coercion or undue influence, I find no need to import any parole evidence to contradict its terms and conditions especially on who received the money or not.”** 1. I did however find some difficulty in agreeing with those conclusions. While the Trial Magistrate had concluded that there was no pleading on the part of the 1st Appellant that the sale agreement was illegal, it was clear to me that that was exactly what the 1st Appellant was stating when he pleaded that he had never executed any agreement with the Respondent. 2. It was also apparent that in arriving at that conclusion, the Trial Court had placed undue emphasis on the evidence of the document examiner – Emmanuel Karisa (PW2) whose report dated 10th August 2023 came to the conclusion that the 1st Appellant had executed the Agreement. 3. Asked in cross examination about that report, PW2 had testified as follows: **“The documents I received are a copy of sale agreement dated 6.3.2023 and an affidavit dated 8.5.2023. The documents were copies that were clear and legible. They were sufficient. I have over 30 years in practice. A standard comparison needs more than six copies, I used one because of non-signature. I found the one document to be sufficient as it was not based on a signature. This was enough for me to make an opinion.”** 1. As the Court of Appeal observed in ***Elizabeth Kamene Ndolo –vs- George Matata Ndolo (1996) eKLR***: **“…The evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say"-"Because this is the evidence of an expert, I believe it” … eyewitness evidence or attesting witnesses is superior to that of handwriting experts, which really is only opinion evidence.”** 1. Speaking to the same issue in ***Stephen Kanini Wang’ondu –vs- The Ark Limited (Civil Appeal No. 2 of 2014 (2016) eKLR***, Mativo J., (as he then was) held as follows: **“The fundamental characteristic of expert evidence is that it is opinion evidence…Except testimony, like any other evidence, must be given the appropriate weight. It must be influential in the overall decision-making process as it deserves; nothing more, nothing less. To my mind the weight to be given to expert evidence will derive from how that evidence is assessed in the context of all other evidence. Expert evidence is most obviously needed when the evaluation of the issues requires technical or scientific knowledge only an expert in the field is likely to possess. However, there is nothing to prevent reports for Court use being commissioned on any factual matter, technical or otherwise, providing; it is deemed likely to be outside the knowledge and experience of those trying the case, and the Court agrees to the evidence being called.”** 1. In the matter herein, while the Respondent purported to have purchased the suit property from the 1st Appellant in the year 2005, there was no evidence of his occupation and/or possession thereof some 18 years later when the land was sold by the 2nd Appellant to the 3rd Appellant. 2. While the Sale Agreement was shown to have been witnessed by one Euphenia and Wellington Achesa, the two were not called as witnesses. It was also telling that while the Agreement was said to have been executed on 6th March 2005 when the 1st Appellant was said to have been given a deposit of Kshs. 35,000/= by the Respondent, the same purports to record a sum of Kshs. 65,000/= said to have been received on 12th March 2005 by the 1st Appellant. It was not clear to me how the 1st Appellant could have committed to have received the balance of the purchase price six (6) days before the same was received. 3. In addition, it was evident that before the trial Court, there were two conflicting expert reports regarding the authenticity of the signature of the 1st Appellant herein. While accepting the expert report of PW2, the Court did not proffer any reason as to why it had disregarded the report prepared by the Government Forensic Examiner Martin Papa (DW1) whose findings were that the signatures were not similar. 4. From the testimonies of the two experts, it was evident that it was only DW1 who had followed the correct procedure in analyzing the documents. Asked about his report during cross-examination PW1 responded that “contrary to the standard procedure which required more than six (6) copies for comparison, he had only used one.” 5. Arising from the foregoing it was apparent that the expert witness whose report the Court relied on had not complied with the requisite standard comparison procedures. It is trite that where there is conflicting expert opinion, the Court should test it against the background of all the other evidence in the case which they accept in order to decide which expert evidence is to be preferred. That was not the case herein. 6. Courts of law are required to evaluate the evidence presented by both parties holistically and give reasons for their findings. It would appear to me that in this matter, the Learned Trial Magistrate failed to properly weigh the contradictions, the expert testimony and documentary evidence presented by the Appellants. 7. It follows that I was not persuaded that the Respondent had proved his case on a balance of probabilities as by law required. Accordingly, I hereby find that there was merit in this Appeal. I allow the same, set aside the judgment of the Lower Court as delivered on 16th July 2024 and replace the same with an order dismissing the Respondent’s suit with costs. 8. The Appellants shall also have the costs of this Appeal. **Judgment dated, signed and delivered in open court and virtually at Mombasa this 26th day of May, 2026.** **…………………………….** **J.O. OLOLA** **JUDGE** In the presence of: 1. Mr. Leakey Court Assistant. 2. Mr. Gathu Advocate for the Appellants 3. Mr. Juma holding brief for Adhoch Advocate for the Respondent