https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4435

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT KERUGOYA** **ELCLA NO. E002 OF 2025** **STEPHEN MUNENE GACHUIRI ………………………………. APPELLANT** **VERSUS** **WILSON GACHOKI NJEGA …………………..………… 1ST RESPONDENT** **THE COUNTY GOVERNMENT OF KIRINYAGA …… 2ND RESPONDENT** **JUDGMENT** ***(Being an appeal from the Judgment of Hon. L.W Kabaria, PM, delivered on 20TH December 2024 in Gichugu CM ELC Case No. E016 of 2021)*** ***Introduction:*** 1. This is a first appeal arising from the Judgment and Decree of **Hon. L. W. Kabaria, PM,** delivered on **20th December 2024** in **Gichugu CM ELC Case No. E016 of 2021**. The appeal concerns a dispute over the identity and location of **Plot No. 172A Kutus Mjini,** with the appellant contending that the parcel occupied by the 1st respondent and described as **Plot No. 153A Kutus** is in fact, his **Plot No. 172A**. 2. In the impugned judgment, the learned trial magistrate found that although the appellant had established that he was the lawful owner of **Plot No. 172A Kutus Mjini,** he had failed to prove on a balance of probabilities, that the parcel occupied by the 1st respondent was the same parcel as **Plot No. 172A**. Consequently, the trial court issued a declaration affirming the appellant's ownership of **Plot No. 172A**, but declined the prayers for a permanent injunction and compensation for the alleged demolition of his temporary structure. The court further directed that each party bear its own costs of the suit. ***Background and Pleadings:*** 1. The dispute giving rise to this appeal originated from the **Gichugu Chief Magistrate's Court**, where the appellant instituted the suit vide a plaint dated 21st May 2021. The appellant pleaded inter alia that he was the lawful owner of **Plot No. 172A, Kutus Mjini**, having acquired the same in 1988 by transfer from the original allottee. He averred that, following the transfer, officers of the then County Council identified and showed him the location of the plot on the ground, whereupon he took possession, erected a temporary structure valued at **Kshs.50,000/=,** and has since continuously paid the requisite rates and rents to the 2nd respondent. 1. The appellant further pleaded that in the year 2018, the 1st respondent laid claim to the suit property, contending that the appellant's **Plot No. 172A** was in fact **Plot No. 153A**. According to the appellant, the 2nd respondent initially informed the parties, through a letter dated 22nd March 2018, that it would await the outcome of the Directorate of Criminal Investigations' investigations before making a determination. He, however, averred that no investigations were ever conducted by the Directorate of Criminal Investigations, and no communication from the said office was ever availed to him. Further that the said Directorate lacked jurisdiction to investigate what was essentially a civil dispute. The appellant further pleaded that despite this, the 2nd respondent, by a letter dated 15th May 2018, informed him that it had resolved the dispute in favour of the 1st respondent on the basis of information allegedly received from the Directorate of Criminal Investigations. It was the appellant's case that the said letter neither disputed his ownership of **Plot No. 172A** nor determined the physical location of the competing plots. 1. The appellant further averred that on or about 13th May 2021, the 1st respondent unlawfully fenced off the parcel occupied by the appellant, denied him access thereto, demolished his temporary structure and commenced construction thereon. Consequently, he sought a declaration that he was the lawful owner of **Plot No. 172A Kutus Mjini**; a permanent injunction restraining the 1st respondent, whether by himself, his agents or servants, from entering upon or interfering with his quiet possession of the said plot; compensation in the sum of **Kshs. 50,000/=** for the demolished structure, and the costs of the suit. 2. The 1st respondent filed a statement of defence dated 7th June 2021 denying the appellant's claim. He admitted becoming aware of the appellant's ownership of **Plot No. 172A** during a dispute resolution process convened by the 2nd respondent in the year 2017, but maintained that he was the lawful owner of **Plot No. 153A Kutus Mjini**, having purchased the same from one Mureithi Njogu in the year 2011. He denied that **Plot No. 153A** belonged to the appellant and averred that following investigations undertaken by the 2nd respondent, it was confirmed that **Plot No. 153A** belonged to him, while the appellant owned **Plot No. 172A**. He further pleaded that the 2nd respondent thereafter re-established the beacons for **Plot No. 153A**, that he had lawfully developed the plot by constructing three semi-permanent houses and a pit latrine thereon. He denied ever trespassing upon the appellant's **Plot No. 172A** or demolishing any structure thereon. He accordingly prayed for the dismissal of the suit with costs. 1. The 2nd respondent likewise filed a statement of defence dated 7th June 2021. It denied having knowledge of the appellant's possession of **Plot No. 172A Kutus Mjini**, but admitted that the appellant had been paying rates in respect of the said plot. It further averred that the 1st respondent was the lawful owner of **Plot No. 153A Kutus Mjini**, having purchased the same from one Mureithi Njogu, and that he was in lawful possession thereof, and had developed the property by erecting structures thereon. The 2nd respondent maintained that the appellant's suit was misconceived, mischievous and an abuse of the court process and prayed that it be dismissed with costs. ***Evidence Before the Trial Court:*** 1. The matter proceeded to hearing, where the appellant testified as PW1. He adopted his witness statement dated 21st May 2021 and produced the documents contained in his list of documents dated 21st May 2021, together with the further list of documents dated 19th April 2023, as exhibits. It was the appellant's testimony that he purchased **Plot No. 172A Kutus Mjini** on 17th June 1988 from the original allottee for a consideration of **Kshs. 8,000/=.** He stated that although he was not the original allottee, the vendor, together with a surveyor from the then County Council known as Gitau, identified and pointed out the plot to him on the ground, whereupon he took possession and later constructed a temporary house thereon in the year 2006. He testified that he had continuously paid rates and rents in respect of the plot. 1. The appellant further testified that a dispute subsequently arose when the 1st respondent claimed ownership of the land he occupied. According to him, the parties were summoned before an officer of the County Government, where he produced all his documents relating to **Plot No. 172A**. He maintained that his claim had always been confined to **Plot No. 172A** and denied laying any claim to **Plot No. 153A.** It was his evidence that the respondents had merely changed the description of his plot from **Plot No. 172A** to **Plot No. 153A**. He rejected the documents relied upon by the 1st respondent as fraudulent, and maintained that it was the 1st respondent who entered onto his plot, demolished his temporary structure and commenced construction thereon. During re-examination, he explained that he joined the 2nd respondent in the proceedings because it had issued a letter declaring that the disputed property belonged to the 1st respondent. He maintained that **Plot No. 153A** belonged to the 1st respondent, while **Plot No. 172A** belonged to him. 1. The 1st respondent testified as DW1 and adopted his witness statement dated 7th June 2021 together with the documents contained in his list of documents of even date. His testimony was that he was the lawful owner of **Plot No. 153A Kutus**, having purchased the same in the year 2011 from one Mureithi Njogu, whose allocation of the plot dated back to the year 1985. He stated that the plot was vacant at the time of purchase and that, although he had not been issued with a beacon certificate, he had been shown the beacons by the vendor. He testified that he became aware of the appellant's claim only in 2017, after neighbours informed him that another person was claiming ownership of the land. Consequently, he lodged a complaint with the County Government, following which both parties presented their ownership documents for verification. 1. The 1st respondent denied that the parties were ever taken to the ground after presenting their documents, and maintained that the County Government ultimately confirmed that **Plot No. 153A** belonged to him. He denied ever trespassing onto **Plot No. 172A** or demolishing the appellant's structure. During re-examination, he referred to the minutes of the County Government's dispute resolution process, and maintained that the County Government resolved the dispute in his favour. He also referred to the appellant's letter dated 23rd May 2018, as demonstrating that the appellant had requested the County Government to identify the location of the plot for which he had been paying rates. 1. Upon considering the evidence on record, the trial court found it necessary to reopen the proceedings and conduct a visit to the locus in quo. The court further directed that the County Surveyor and the County Physical Planner to attend the site, identify the respective parcels on the ground and avail evidence to assist the court in determining whether **Plot No. 172A** claimed by the appellant was the same parcel claimed by the 1st respondent as **Plot No. 153A**. 2. Pursuant to those directions, the County Surveyor, Stephen Wambugu, testified before the trial court. He produced a map extract of Kutus Township, and explained that there existed two distinct areas known as **Kutus and Kutus Mjini**. He testified that the letter "A" had been introduced to certain plot numbers by the former local authority to distinguish plots situated in Kutus from those in Kutus Mjini. According to the official records available to him, **Plot No. 153A** belonged to the 1st respondent, and he was able to identify its location on the ground. However, he testified that the map extract before the court did not indicate **Plot No. 172A**, and acknowledged that although the plot existed in the County records, he was unable to establish its physical location on the ground. He nevertheless maintained that the parcel occupied by the 1st respondent was **Plot No. 153A**. 1. The proceedings were thereafter adjourned to enable the County Government to search for historical records relating to **Plot No. 172A**. Following a further site visit, the County Surveyor produced another map identifying **Plot No. 172**, but explained that it did not include the alphabetical suffixes appearing in the parties' documents. He testified that while he could identify **Plot No. 172** on the map and on the ground, he was unable to state whether **Plot No. 172** corresponded to **Plot No. 172A** or whether **Plot No. 153** corresponded to **Plot No. 153A**. He attributed the inconsistency in the numbering to historical administrative practices of the defunct local authorities, and informed the court that he had not found any official records that conclusively reconciled the alphabetical suffixes with the existing township maps. He further stated that the Chairperson of the County Dispute Resolution Committee would be better placed to clarify the historical changes in the plot numbering. ***Judgment of the Trial Court:*** 1. Having considered the pleadings, the evidence adduced, the documentary exhibits, the testimony of the County Surveyor and the observations made during the two visits to the locus in quo, the learned trial magistrate inter alia found that the appellant had proved that he was the lawful owner of **Plot No. 172A Kutus Mjini**, and consequently granted the declaratory relief sought in that regard. In arriving at that determination, the learned trial magistrate closely examined the County Surveyor's evidence and observed that during the first site visit, the County Surveyor identified the parcel occupied by the 1st respondent as **Plot No. 153A**. He explained that the site visited was situated in **Kutus** and not **Kutus Mjini** and that because there existed two plots bearing the **number 153** in the two different localities, the suffix "A" had been introduced to distinguish the plot situated in **Kutus** from the one in **Kutus Mjini,** although the suffix did not appear on the official map. He further testified that according to the 2nd respondent's records, **Plot No. 153A** belonged to the 1st respondent, but acknowledged that he had not seen a map bearing **Plot No. 172A.** 1. The trial court further noted that during the second site visit, conducted on 20th August 2024 at a different location, identified as **Kutus Mjini**, the County Surveyor pointed out a developed parcel, which he identified as **Plot No. 172**. However, upon cross-examination, he conceded that he could not confirm whether there existed two plots bearing the **number 153** or whether **Plot No. 172A** existed on the ground. He nevertheless stated that the identity of the developed plot could be ascertained from the business permits issued in respect thereof. Upon verification of the records, the 2nd respondent confirmed that the developed parcel was registered in the name of one Muriuki Wachira. The appellant did not dispute that position, but maintained that the parcel identified was **Plot No. 172** and not his **Plot No. 172A**. 1. The learned trial magistrate examined the minutes relied upon by the 2nd respondent and observed that they referred to **Plot No. 173**, Kutus Village, which was not the subject of the dispute before the court. The court consequently concluded that notwithstanding the evidence adduced and the two site visits, the central question remained unresolved, namely, whether the appellant's **Plot No. 172A** was the same parcel occupied by the 1st respondent and described as **Plot No. 153A.** 2. The learned trial magistrate held that the burden of proving that fact rested upon the appellant, and that he had failed to discharge it. The court observed that the 2nd respondent consistently maintained that the appellant's **Plot No. 172A** was not the same parcel as the 1st respondent's **Plot No. 153A**, and that the evidence of the County Surveyor did not resolve, but rather reinforced, the uncertainty surrounding the physical location of **Plot No. 172A**. Consequently, the court declined to grant the prayer for a permanent injunction. The trial court further found that there was no evidence demonstrating that the 1st respondent demolished the appellant's structure, and accordingly declined the claim for compensation. Having found that the appellant had only succeeded in obtaining a declaration of ownership, the court ordered that each party bear its own costs of the suit. ***The Appeal:*** 1. Aggrieved by the said decision, the appellant preferred the present appeal vide the Memorandum of Appeal dated 9th January 2025, raising the following grounds: 2. *That the learned trial magistrate erred in law and in fact by rendering a judgment that was against the weight of the evidence.* 3. *That the learned trial magistrate erred in law and in fact by failing to find that the appellant had proved his case on a balance of probabilities.* 4. *That the learned trial magistrate erred in law and in fact by failing to properly evaluate and analyse the evidence adduced by the appellant.* 5. *That the learned trial magistrate erred in law and in fact by failing to consider the inconsistencies and contradictions in the respondents' documentary evidence.* 6. *That the learned trial magistrate erred in law and in fact by failing to distinguish between* ***Plot No. 153 Kutus*** *and* ***Plot No. 153A Kutu****s from the documentary evidence produced by the respondents.* 7. *That the learned trial magistrate erred in law and in fact by failing to appreciate that an earlier allocation of a plot takes precedence over a subsequent allocation.* 8. *That the learned trial magistrate erred in law and in fact by failing to grant an effective and enforceable remedy.* The appellant consequently prays that this appeal be allowed with costs and that the judgment of the trial court, to the extent that it dismissed prayers (b), (c) and (d) of the plaint, be set aside and substituted with an order allowing the said prayers together with the costs of the suit. 1. The 1st respondent filed a notice of cross appeal dated 20th February 2025 raising ostensibly two (2) grounds that are similar, that the trial court erred in failing to award him costs after having found that the appellant did not prove his case against him. 2. This court directed that the appeal be canvassed by way of written submissions. The learned counsel for the appellant, 1st respondent, and 2nd respondent filed their submissions dated 14th November 2025, 17th November 2025 and 30th January 2026, respectively, which the court has carefully considered. ***Parties Submissions:*** 1. The learned counsel for the appellant filed written submissions dated 25th October 2023 urging the trial court to find that the appellant had proved his case on a balance of probabilities. Counsel submitted that the appellant lawfully purchased **Plot No. 172A Kutus Mjini** in 1988, took immediate possession thereof, and had consistently paid rates and rents in respect of the property for over three decades. It was further submitted that the dispute arose from a case of double allocation over the same parcel of land. Relying on ***Wreck Motors Enterprises versus Commissioner of Lands & 3 Others* [1997] eKLR**, counsel argued that where two competing titles appear regular on their face, priority ought to be accorded to the earlier allocation. It was therefore contended that the appellant's interest, having originated in 1988, took precedence over the 1st respondent's alleged acquisition in 2011. 1. Counsel further submitted that the respondents failed to demonstrate that **Plot No. 153A** physically existed on the ground, notwithstanding that the approval granted to the 1st respondent to develop the plot was subject to the re-establishment of the plot boundaries by the County Surveyor. Invoking **Section 112 of the Evidence Act**, it was argued that the respondents failed to produce a beacon certificate or call evidence demonstrating the physical existence of **Plot No. 153A**. It was also submitted that no investigation report from the Directorate of Criminal Investigations was produced, despite the 2nd respondent relying on such investigations to resolve the dispute. 1. The appellant further submitted that he had satisfied the conditions for the grant of a permanent injunction by establishing his proprietary rights over the suit property, demonstrating the injury occasioned by the 1st respondent's acts of trespass and showing that the balance of convenience favoured the protection of his possession. On the claim for compensation, counsel relied on the case of ***Nkuene Dairy Farmers Co-operative Society & Another versus Ngacha Ndeiya* *[2010] eKLR*** and submitted that the photographic evidence produced sufficiently established the demolition of the appellant's temporary structure and justified the award of **Kshs.50,000/=** as pleaded. 1. The learned counsel for the 1st respondent opposed the appeal through their written submissions dated 31st October 2023. Counsel submitted that the appellant failed to discharge the burden of proof imposed by **Sections 107 and 109 of the Evidence Act**, by failing to demonstrate that **Plot No. 172A** and **Plot No. 153A** referred to the same parcel of land. It was argued that the court could not speculate or rewrite the parties' allocations by treating two distinct plots as one. Counsel further submitted that the appellant's reliance on the principle that the first allocation prevails was misplaced because the evidence showed that the 1st respondent's predecessor had been allocated **Plot No. 153A** on 6th June 1985, while the appellant only acquired **Plot No. 172A** in 1988. It was therefore argued that even on the appellant's own reasoning, the 1st respondent's root of title was earlier in time. 1. The 1st respondent also submitted that the dispute had been considered by the 2nd respondent in 2017, culminating in a determination in the 1st respondent's favour. Counsel pointed out that the appellant admitted during cross-examination that he was aware of that determination, and had subsequently instructed his advocates to write to the County Government requesting an alternative plot after finding the plot for which he had been paying rates occupied by another person. Relying on the case of ***Dickson Miriti Kamonde versus Kenya Commercial Bank Ltd* [2006] eKLR**, counsel submitted that the appellant's delay in challenging the County Government's decision disentitled him to equitable relief. Counsel further argued that the appellant had not established any basis for an award of damages, as there was no evidence linking the alleged demolition to the 1st respondent or proving the quantum claimed. Finally, counsel submitted that the 1st Respondent’s cross appeal should be allowed and he be granted costs. 1. The learned counsel for the 2nd respondent likewise opposed the appeal by way of written submissions dated 23rd October 2023. Counsel submitted that no cause of action had been disclosed against the County Government, and that the appellant had neither pleaded nor sought any substantive relief against it. It was argued that although the 2nd respondent was mentioned in several paragraphs of the plaint, the cause of action as pleaded was directed solely against the 1st respondent, a position which the appellant reaffirmed during cross-examination when he admitted that he was not seeking any relief against the County Government. 1. Counsel submitted that parties are bound by their pleadings and relied on the case of ***Daniel Otieno versus Sony Sugar Co. Ltd* [2018] eKLR** in support of that proposition. Further reliance was placed on the case of ***Wilson Mopia Lengisto versus Francesca Boen & 2 Others* [2014] eKLR** for the proposition that a party against whom no relief is sought ought not to be retained in proceedings. The 2nd respondent, therefore, urged the court to find that the suit against it was misconceived and to dismiss the appeal. 1. The following are the issues arising in this appeal for the court’s determinations: 1. *Whether the learned trial magistrate properly evaluated the evidence and correctly concluded that the appellant had failed to prove that the parcel occupied by the 1st respondent was* ***Plot No. 172A Kutus Mjini****.* 2. *Whether the trial court erred in declining to grant the appellant the remedies of a permanent injunction and compensation.* 3. *Who pays the costs?* 2. The court has carefully considered the grounds on the memorandum of appeal, record of appeal, submissions by the learned counsel, superior court decisions cited and come to the following determinations: 1. This being a first appeal, this court is duty-bound to re-evaluate, reassess and re-analyse the evidence presented before the trial court and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify and should therefore give due allowance for that disadvantage. See ***Selle & Another versus Associated Motor Boat Co. Ltd & Others [1968] EA 123.*** 2. The appellant faults the trial court for failing to properly analyse the evidence, for overlooking the inconsistencies in the respondents' evidence and for failing to distinguish between **Plot Nos. 153** **and** **153A**, as well as **Plot Nos. 172 and 172A.** Counsel further argued that this was a case of double allocation and that by virtue of the principle that the first allocation prevails, the appellant's interest, having originated in 1988, ought to have taken precedence over the 1st respondent's acquisition in 2011. 3. The respondents take a different view. His common position is that ownership of **Plot No. 172A** was never in dispute. Rather, the dispute concerned the identity of the land occupied by the 1st respondent. He submits that the appellant failed to prove that the parcel occupied by the 1st respondent as **Plot No. 153A** was in fact **Plot No. 172A** and therefore failed to discharge the burden imposed by **Sections 107 and 109 of the Evidence Act.** * 1. Upon an independent re-evaluation of the record, this court finds that the learned trial magistrate correctly identified the real issue for determination. The dispute before the trial court was not who owned **Plot No. 172A**. Indeed, after considering the evidence, the learned magistrate declared the appellant to be the lawful owner of **Plot No. 172A Kutus Mjini**, a finding that has neither been challenged by way of cross-appeal nor cross-objection. 2. The question that remained was a different one altogether: whether the parcel occupied by the 1st respondent and described in the records as **Plot No. 153A**, was in fact the appellant's **Plot No. 172A**. It is upon the answer to that question that the appellant's prayers for a permanent injunction and compensation depended. 3. The burden of proving that fact rested squarely upon the appellant. It was incumbent upon him to establish, on a balance of probabilities, not merely that he owned **Plot No. 172A**, but that the land occupied by the 1st respondent was that very plot. Without establishing that nexus, the court could not issue an injunction restraining the 1st respondent from occupying land which, on the evidence, remained identified as **Plot No. 153A.** 4. The appellant urged this court to find that this was a case of double allocation and that the earlier allocation should prevail. Respectfully, this court is unable to agree that the evidence reached that threshold. Before the doctrine of priority could be invoked, it was incumbent upon the appellant to first establish that the competing allocations related to the same parcel of land. That foundational fact remained unproved. Indeed, the evidence before the trial court consistently acknowledged the existence of **Plot No. 172A and Plot No. 153A**. The unresolved question was whether they referred to one and the same parcel on the ground. It is precisely that question that the evidence failed to answer conclusively. 5. The evidence of the County Surveyor, which formed the cornerstone of the appellant's case, did not resolve that uncertainty. During the first site visit, the surveyor identified the parcel occupied by the 1st respondent as **Plot No. 153A** and explained the historical introduction of the alphabetical suffixes to distinguish plots situated in **Kutus** from those in **Kutus Mjini**. However, he candidly admitted that he had not seen any official map bearing **Plot No. 172A**. During the second site visit, although he identified another parcel as **Plot No. 172**, he equally conceded that he could not confirm whether **Plot No. 172** corresponded with **Plot No. 172A** or whether **Plot No. 153** corresponded with **Plot No. 153A**. Far from resolving the dispute, his evidence underscored the uncertainty surrounding the identity of the appellant's plot on the ground. * 1. This court is equally constrained to comment on the position taken by the 2nd respondent. Throughout the proceedings, the County Government acknowledged that **Plot No. 172A** existed and admitted that the appellant had consistently paid rates in respect thereof. At the same time, it maintained that the parcel occupied by the 1st respondent was **Plot No. 153A**, and that the two plots were distinct. Yet, despite being the custodian of the relevant allocation records, the 2nd respondent was ultimately unable to identify the physical location of **Plot No. 172A**. That state of affairs is indeed regrettable. A public authority charged with the allocation, administration and maintenance of records relating to public plots ought to be in a position to identify land allocated by it, and for which it continues to receive rates. The inability of the 2nd respondent to do so understandably fueled the appellant's grievance. 2. However, troubling as that position may be, it does not, without more, justify interfering with the judgment of the trial court. The appellant framed his case as one of trespass against the 1st respondent. The reliefs sought were a declaration of ownership, a permanent injunction restraining the 1st respondent from interfering with his quiet possession, compensation for the alleged demolition of his structure and costs. Significantly, no substantive relief was sought against the 2nd respondent requiring it to identify, survey, beacon, demarcate or otherwise establish the physical location of **Plot No. 172A**. Indeed, as correctly submitted by the 2nd respondent, the appellant expressly confirmed during cross-examination that he was not seeking any relief against the County Government. 3. It is trite that parties are bound by their pleadings, and a court is equally bound to determine the dispute presented before it. While the evidence disclosed shortcomings on the part of the 2nd respondent in the management and identification of its records, this court cannot grant remedies that were neither pleaded nor prayed for. To do so would be to descend into the arena of litigation and fashion a case for the parties that they themselves did not present. 4. Similarly, the appellant's complaint that the learned trial magistrate failed to grant an effective remedy cannot be sustained. Courts are undoubtedly enjoined to grant effective relief where the circumstances permit. However, an effective remedy must remain anchored in both the parties’ pleadings and the evidence. In the absence of proof that the parcel occupied by the 1st respondent was the appellant's **Plot No. 172A**, the trial court could not properly issue an injunction restraining the 1st respondent from occupying **Plot No. 153A** merely because uncertainty existed regarding the location of **Plot No. 172A.** 5. The same reasoning applies to the appellant's claim for compensation. Having failed to establish that the parcel upon which the alleged demolition occurred was **Plot No. 172A**, and there being no cogent evidence linking the alleged demolition to the 1st respondent, this court finds no basis upon which to fault the learned trial magistrate for declining that claim. 6. This court appreciates that the appellant may legitimately feel aggrieved. The declaration issued by the trial court affirms that he is the lawful owner of **Plot No. 172A Kutus Mjini**, yet the evidence disclosed uncertainty regarding its physical location. Nevertheless, sympathy cannot displace settled principles of law. The burden of proof remained with the appellant, and the remedies sought could only issue upon proof that the 1st respondent had encroached upon his plot. That burden was not discharged. Equally, this judgment should not be construed as extinguishing or diminishing the appellant's proprietary rights over **Plot No. 172A**. Those rights remain intact by virtue of the declaratory order issued by the trial court. 7. Should the appellant consider that the 2nd respondent has failed in its statutory obligations concerning the identification or administration of **Plot No. 172A**, nothing in this judgment precludes him from pursuing such remedies as may be available in law, in appropriately constituted proceedings. For the purposes of the present appeal however, this court is satisfied that the learned trial magistrate cannot be faulted for declining the reliefs sought against the 1st respondent. 8. That on costs the trial court directed each party to bear their own costs. The 1st respondent has in his cross appeal and submissions sought to be granted costs arguing that the appellant had failed to prove his claim against him. I have perused submissions by the appellant and have not seen any rejoinder or response on that issue. Under **Section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya,** costs follow the events unless where for good cause the court orders otherwise. The appellant had secured only one prayer for a declaration that he is the lawful owner of **Plot No. 172A Kutus Mjini**. Evidently, that prayer had nothing to do with the 1st respondent, and none of the prayers the appellant had sought against the 1st respondent was granted by the trial court. The 1st respondent having successfully defended the appellant’s claim against him was therefore entitled to costs unless good reasons mitigated against it. I have not seen any reasons in the trial court’s judgement that were considered in deviating from the obvious dictate of **Section 27** of the said **Act**. I therefore find the learned trial magistrate erred in not granting the 1st respondent’s costs. * 1. Costs under **Section 27 of Civil Procedure Act Chapter 21 of Laws of Kenya**, follow the events unless where the court direct differently on good grounds. As the appellant has failed in this appeal, I find no reasons why he should not pay the respondents costs. 1. Having come to the foregoing conclusions in this appeal, the court finds and orders as follows: 1. **That the Appellant’s appeal is devoid of merit and is dismissed in its entirety.** 2. **The 1st respondent’s cross appeal has merit and is allowed.** 3. **That the learned trial magistrate's judgment of 20th December 2024, and the decree emanating therefrom, is hereby affirmed, save that the order on costs is set aside and substituted with an order granting the 1st respondent costs.** 4. **The appellant to pay the respondents’ costs.** Orders accordingly. **DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 15TH DAY OF JULY 2026** **S. M. Kibunja** **ELC JUDGE** **In the presence of:** Appellant – M/s Ndwiga for Magee Respondents – Mr. Muriithi for 1st Respondent Kinyua/Charles - Court Assistant **S. M. Kibunja** **ELC JUDGE**