https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4766

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC APPEAL NUMBER 84 OF 2025** SUSAN MUKOMAUA …………………..…………………APPELLANT VERSUS JACINTA MBAA M’ACIURU…………………….……1ST RESPONDENT THE LAND REGISTRAR MERU NORTH………….…2ND RESPONDENT THE LAND SURVEYOR MERU…………………..……3RD RESPONDENT THE HON. ATTORNEY GENERAL ……………….……4TH RESPONDENT *[****Being an appeal from the judgment and decree of the Senior Resident Magistrate’ Court at Maua [Hon. Ken Muchiri SRM] dated and delivered on 15.10.2025 in Maua ELC No. E129 of 2019****]* **JUDGMENT** 1. The Respondent [*who was the Plaintiff in the lower court*] filed the Plaint dated the 09.07.2019, and wherein same sought various reliefs pertaining to and concerning the blockage of a road of access linking LR No. Igembe Central/Akirangondu A/1971 *[hereinafter referred to as the suit property]* to the main road. 2. The Plaint under reference was thereafter amended resting with the amended plaint dated the 20.09.2021 and wherein the respondent sought the following reliefs: 3. *A declaration that the 1st defendant has unlawfully and illegally blocked and/or sealed off the road of access joining the plaintiff’s land parcel No. Igembe Central/Akirangondu A/1971 to the main road and for an order empowering the sub County Surveyor to visit the site in the company of Police Officer from Maua Police Station and re-open the said road of access as previously partitioned and/or demarcated and captured in the original ground map for the said area.* 4. *An order for a permanent injunction restraining the 1st defendant, by herself, her agents, relatives, servants and/or employees or whomsoever else acting on the defendant’s behalf or instructions from blocking, fencing and/or sealing off the road of access joining the plaintiff’s land parcel number Igembe/Central/Akirangondu A/1971 to the main road or in any other manner whatsoever or howsoever interfering with the plaintiff’s use of the said road access.* 5. *An order for rectification of the original map and the access to the land parcel number Igembe/Akiarang’ondu A 1971 remain in its original location and/or alternatively the 2nd and the 3rd defendant be compelled or directed to open an alternative the access road to the plaintiff’s land.* 6. *An order that the OCS Maua Police Station provide security as the re-opening of the access road.* 7. *Costs of the suit plus interest thereon.* 8. *Any other remedy or relief this honourable court may find fit and just to grant.* 9. The crux of the respondent’s case was thus: The respondent is the registered owner of the suit property; the suit property is served by a road of access which runs between LR No. Igembe Central/Akirangondu A/2268 and 6739; LR No. Igembe Central/Akirangondu A/2268 belongs to and is registered in the name of the appellant; the appellant has blocked and fenced of the road of access; the appellant has colluded with the 2nd and 3rd respondents to alter the registry index map; the alteration of the map is/was fraudulent and illegal; the alteration of the map has deprived the 1st respondent of access to the suit property; the actions of the appellant are unlawful; and the court ought to direct the unblocking of the road of access. 10. The appellant herein *[who was the 1st defendant]* duly entered appearance and filed a statement of defence. The statement of defence is dated the 07.08.2019. Subsequently, the appellant filed a statement of defence to the amended plaint. The appellant denied the assertions by the 1st respondent. In particular, it was posited that the 1st respondent’s parcel of land does not share a common boundary with the appellant’s land; there is no road of access at the place alluded to; the claims by the 1st respondent are mischievous; and the 1st respondent’s suit is legally untenable. 11. Additionally, the appellant herein contended that the honorable court [the lower court] was divested of jurisdiction to entertain and adjudicate upon the suit. 12. The 2nd, 3rd and 4th respondents *[who were represented by the Honourable Attorney General]* similarly, entered appearance and filed a statement of defence. The statement of defence was dated the 09.07.2022. The Honourable Attorney General denied the assertions contained at the foot of the amended plaint. In particular, it was denied that the 2nd and 3rd respondents had colluded with the appellant to alter the original map, with a view to interfering with the existence of the road of access. 13. In addition, the Honourable Attorney General posited that the orders sought by the 1st respondent were not available, as against the 2nd , 3rd and 4th respondent. Moreover, it was contended that the provisions of **Sections 13 A and 16 of the Government Proceedings Act, Chapter 40 Laws of Kenya,** were not complied with. 14. The suit in the lower court was heard and disposed of *vide* Judgment delivered on the 15.10.2025 and wherein the learned trial magistrate [Honourable Ken Muchiri – SRM] found and held that the 1st respondent had proved her case to the requisite standard. To this end, the learned trial magistrate proceeded to and entered Judgement in favour of the 1st respondent. 15. Aggrieved, the appellant approached this court *vide* Memorandum of appeal dated the 01.11.2025 and wherein same has highlighted five [5] grounds. 16. The grounds are: 17. ***That the learned trial magistrate erred in law and in facts by relying on the evidence of PW3 and DW3.*** 18. ***That the learned Senior Resident Magistrate erred in law and in facts by disregarding the fact PW3 presented a Sketch Map as P EXH 2 which had no stamp from the lands office but yet found out that the probability of justice swung in the favour of 1st respondent thus was led by extraneous matters to arrive to a wrong decision.*** 19. ***That the learned senior resident magistrate erred in law and facts in rejecting the appellant’s evidence that the 1st respondent did not prove fraud but went ahead to reject the same averring that the claim was flippant with no explanation.*** 20. ***That the learned senior resident magistrate erred in law and fact in disregarding the provision of Article 159[d] of the Constitution with regard to technicalities of amendment.*** 21. ***That the learned Chief magistrate judgment, and decree were against the weight of evidence tendered and the law.*** 22. The subject appeal came up for directions on the 09.06.2026, whereupon learned counsel for the appellant intimated to the court that same had filed and served a compliant record of appeal. In addition, learned counsel posited that the record of appeal was complete. Learned counsel thereafter, sought directions pertaining to the hearing and disposal of the appeal. Moreover, learned counsel proposed to canvass the appeal by way of written submissions. 23. With the concurrence of learned counsel for the respondent, the court proceeded to and issued directions pertaining to and concerning 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 and serve written submissions within 14 days from the date of service; and the appellant shall be at liberty to file and serve rejoinder submissions [if any] within 7 days from the date of service. 24. The appellant filed written submissions dated the 18.06.2026 and wherein the appellant has highlighted three [3] issues. The issues are: The 1st respondent did not tender credible evidence to prove her case to the requisite standard; the learned trial magistrate misapprehended the import and tenor of the sketch map that was relied upon by the 1st respondent; and the Judgement of the learned trial magistrate is inherently contradictory and thus legally untenable. 25. Regarding the first issue, learned counsel for the appellant has submitted that the 1st respondent did not tender or adduce any credible evidence, to warrant a finding in her favour. In particular, it has been submitted that though the 1st respondent had posited that there does exist a road of access, leading to the suit land, the 1st respondent did not tender any authentic cadastral map, to show the existence of the impugned road. Moreover, it was pointed out that the 1st respondent relied on sketch map, which was devoid of authenticity. 26. With regard to the second issue, learned counsel for the appellant has submitted that the learned trial magistrate misapprehended and misapplied the law as pertains to the burden of proof. To this end, it was submitted that instead of discerning whether the evidence tendered by the 1st respondent, was credible, the learned trial magistrate over concerned himself, with the evidence of DW3 and thereby failed to discern the material deficiencies/ contradiction[s], in the 1st respondent’s case. 27. Thirdly, learned counsel for the appellant has submitted that having found and held that the 1st respondent did not prove evidence of fraud, the learned trial magistrate ought not to have returned a finding in favour of the 1st respondent. Nevertheless, it has been submitted, that despite the finding of no fraud, the learned trial magistrate still allowed the 1st respondent’s case. 28. Learned counsel for the appellant has relied upon various decisions to buttress the foregoing submissions. The decisions are: **Miller versus Minister of Pensions [1947] All ER 372 ; James Muniu Mucheru versus National Bank of Kenya Limited [2019] eKLR; CMC Aviation Limited versus Cruisair Limited [1978] eKLR; and Stephen Gachau Githaiga versus Margret Wambui Weru and another [2015] eKLR**, respectively. 29. 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 deserving of being allowed. To this end, the court has been implored to allow the appeal; set aside the Judgement; and to dismiss the 1st respondent’s suit in the lower court. 30. The 1st respondent filed written submissions dated the 09.07.2026 and wherein same has highlighted two[2] key issues. The issues are: The 1st respondent duly proved and established her case to the requisite standard; and the evidence of the expert called by the 1st respondent was not impeached. 31. Regarding the first issue, learned counsel for the 1st respondent has submitted that the 1st respondent testified before the court and demonstrated the existence of a road of access, which was connecting the suit property to the main road. In addition, it has been submitted that the 1st respondent also tendered evidence to demonstrate that the road of access, had been blocked by the Appellant herein. 32. Moreover, it has been submitted that the evidence tendered by the 1st respondent, was corroborated by the evidence tendered by the rest of the witnesses, that were called. Simply put, learned counsel has submitted that the totality of the evidence tendered on behalf of the 1st respondent, was sufficient to prove the claim. 1. Secondly, it has been submitted that the 1st respondent called a land surveyor, who testified as PW3. It was submitted that the evidence of the said witness, demonstrated that the road of access had been blocked. In any event, it has been submitted that the evidence of DW3, was rightfully discredited; and disregarded by the trial court. 2. All in all, learned counsel for the 1st respondent has submitted that the learned trial magistrate, correctly evaluated and appraised the evidence on record, and thereafter arrived at the correct conclusions. It has been posited that the Judgment of the Trial Court, is sound. The court has been implored to dismiss the appeal; and to affirm the impugned Judgment. 3. The Honourable Attorney General does not appear to have filed written submissions in the instance matter. Suffice it to state that no such submissions are traceable on the record of the court, that is, on the Court Tracking System [CTS]. 4. Having reviewed the record of appeal; the grounds of appeal; the impugned Judgment; and a upon considering the submissions by /on behalf of the respective parties, two [2] key issues emerge for determination. The issues are: Whether the 1st respondent duly proved her case to the requisite standard or otherwise; and Whether the learned trial magistrate correctly apprehended and applied the legal principle pertaining to burden and standard of proof. 5. 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. 6. 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. 7. 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. 8. 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 Appealare 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 1st respondent duly proved her case to the requisite standard or otherwise? 2. The starting point is to appreciate that the burden of proof, namely; the burden of proving the claim before the lower court, fell on the shoulders of the 1st respondent. The 1st respondent is the one, who approached the court contending thus: There existed a road of access running between L/R No. Igembe Central/Akirangondu A /2268 and 6739; that the road of access had been blocked; the person who blocked the road of access was the appellant; the appellant had colluded with the 2nd and 3rd respondents to alter the map; that the map was indeed altered; and the alteration [if any] was fraudulent. 3. Did the 1st respondent prove the foregoing assertions? To begin with, the 1st respondent did not tender any evidence, to demonstrate that a road of access ever existed at the place alleged or alluded to. Suffice it to state that the existence of a road of access [if any] would be denoted by a cadastral map /registry index map [RIM], bearing the relevant sheet number. In addition, such a cadastral map would be one, which has been duly approved and authenticated by the director of survey or his /her authorized designate. 4. It is not lost on me that the cadastral map /registry index map, would have to be authenticated in line with the **Survey Act, Chapter 299, Laws of Kenya.** Instructively, where the documents to be relied upon is neither approved nor authenticated by the director of survey, then such a document is illegitimate. 5. Additionally, it is important to recall that the only document, which was tendered and relied upon by the 1st respondent, in an endeavor to prove the existence of the road of access was a sketch map. The sketch map was neither drawn to scale or at all. Moreover, the sketch map did not indicate the source of its origin. The sketch map did not bear the name or details of the author. The sketch map was neither approved nor authenticated. The Document in question was alien. 6. To my mind, the sketch map, which is the only document that was referenced by the 1st respondent, was incapable of proving the existence of the impugned road of access. The sketch map was devoid of any probative value. 7. It is also important to recall that upon the filing of the suit, the court issued an order to the District /surveyor and the land registrar to visit the locus in quo and to discern, the existence of the road of access or otherwise. The county surveyor – Meru North, indeed complied with the order of the court and filed a report before the court. The report by the county surveyor [Limiri T M] is dated the 25.08.2020. The report formed part of the record of the court. 8. The report by the county surveyor captured the salient features that were discerned from the ground. 9. The key items are: 10. *The parcels appear on the registry index map sheet 19/15. The maps for these sections have not been published hence they are still provisional.* 11. *On the ground there exist no road of access for parcel number 1971.* 12. *The proprietor of parcel number 1971 and her family passes through a barbered wire fence on Parcel Number 5467 which is not in this case.* 13. *However, according to the copy of the provisional maps provided from national titling center, access road for parcel number 1971 appears between number 5469 and 620.* 14. *Attached is a copy of provisional RIM for your* reference. 15. My reading of the report and the key notes thereunder, drives me to the conclusion that the expert, in survey matters, showed that there does not exist any road of access, where the 1st respondent had contended. The report in question was before the trial magistrate. The contents were crystal clear. The contents were begging for grammatical interpretation and application. The contents were devoid of ambiguity. However, the Contents of the said report were ignored; disregarded; and obfuscated by the Trial Court. The reason[s] for doing so, are not discernable from the face of record. 16. Other than the report, which I have alluded to in the preceding paragraph, it suffices to point out that the 1st respondent called a surveyor, who testified on her behalf. The surveyor testified as PW3. 17. This is what the witness said: *“The sketch map bears no stamp from lands office. P Exhibit 2 [sketch map] does not emanate from our office. Parcel number 1971 and 2268 do not bonder each other as there is parcel number 6467 in between. Land 2268 does not block access to land 1971 according to the published map. In both provisional and published map, parcel number 2268 has not changed.”* 1. The evidence tendered by PW3, whose excerpt have been reproduced above, clearly negates the 1st respondent’s claim. In short, the 1st respondent’s own witness, confirmed that there is no road of access, where the 1st respondent had posited. Moreover, PW3 painted a picture that the suit property, does not even share a common boundary with LR No. Igembe Central/Akirangondu A/2268, belonging to the appellant. 1. I am afraid that the learned trial magistrate did not appreciate or better still, internalize the evidence that was placed before him. Honestly, I don’t understand how the learned trial magistrate, came to the finding that there existed a road of access, in the manner asserted by the 1st respondent. It suffices to remind ourselves that disputes, ought to be determined on the basis of evidence on record. Trial courts ought to shun feelings; sympathy; or hypothesis, in the cause of determining cases. 2. The second limb of the claim that was placed before the trial court, related to the collusion between the appellant and the 2nd and 3rd respondents; and the alleged alteration of the map, so as to affect the existence of the road of access. This aspect, is what underpinned the assertions of fraud. 3. One would have expected the 1st respondent to tender and produce before the trial court a copy of the original map [if any], showing the existence of the road of access; and thereafter, produce the altered map, showing the alteration/adjustments/interference [if any]. Sadly, the 1st respondent did not tender any such map before the court. 4. How then did the learned trial magistrate come to the conclusion that there was [sic] fraud, illegality or collusion between the appellant and the 2nd and 3rd respondents, to warrant a finding in favour of the 1st respondent [who was the plaintiff]. 5. Notwithstanding the foregoing, I beg to point out that even though the learned trial magistrate anchored his finding on illegality, as captured vide paragraph 34 of the Judgment, it is not lost on me that illegality, was equally not proven. 1. My answer to issue number one is two-fold. Firstly, the 1st respondent did not prove/establish the existence of a road of access, between plot number Igembe Central/Akirangundo A /2268 and 6739. This aspect of the 1st respondent’s case was unproven. 2. Secondly, the 1st respondent did not tender any evidence to vindicate the alleged collusion; alteration or fraud, as asserted at the foot of amended plaint. In short, the plaintiff’s case, was loud in allegations, but silent in proof. The latter, is the key to unlocking judicial decision in favour of the claimant. 3. Before concluding on this issue, I wish to endorse the holding in the case of **Moi v Muriithi & another [2014] KECA 642 (KLR),** where the court of appeal reiterated the necessity to prove a case to the requisite standard. The court stated thus: ***“It is a firmly settled procedure that even where a defendant has not denied the claim by filing of defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.”*** 1. I now wish to turn to the second issue. The issue is whether the learned trial magistrate correctly apprehended and applied the incidence of burden and standard of proof in accordance with the prescription of the law. It is trite that the claimant bears both the evidential burden and the legal burden of proof. Whereas, the evidential burden of proof shifts in the cause of trial, the legal burden of proof remains *in situ.* 2. The learned trial magistrate indeed referenced the burden of proof and on whom, same lies. This much is discernible from paragraphs 19-24 of the Judgment. However, it is worth reiterating that citing and referencing the principles of the law, is one thing, applying the principles [which is the key issue], is another thing. The latter is indeed the nub in determining legal disputes. 3. In my short, albeit fulfilling stint in Judgeship, I have often come across decisions, where judicial officers, the current one inclusive, cite decisions, but fail to apply the legal principles. This is exactly the case in the matter beforehand. 4. At paragraph 26 of the Judgment the learned trial magistrate, instead of interrogating the evidence that was tendered by the plaintiff [1st respondent] and her witnesses, the trial magistrate decides to cross the aisle prematurely. He ventures to attack and discredit the evidence of DW3, before even appreciating the position that was adverted to by the PW3, the Surveyor, who was called by the First Respondent [The Plaintiff in the Lower Court]. 5. In addition, the learned trial magistrate also failed to apprehend that the crux of the evidence [testimony of the DW3] corroborated the evidence of PW3. The two Surveyors [Experts] spoke to the same thing. There was no road of access, where it was posited. 6. For emphasis, I beg to reproduce the holding in the case of **Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] KESC 66 (KLR**), where the supreme court broke down the sequential manner in which a court of law is to discern whether the burden has been discharged by the duty bearer. 7. The apex court illuminated the position thus: ***“Section 108 of the***[***Evidence Act***](https://kenyalaw.org/akn/ke/judgment/kesc/2013/2)***provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and section 109 of the***[***Act***](https://kenyalaw.org/akn/ke/judgment/kesc/2013/2)***declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”*** ***50.This Court in***[***Raila Odinga & others v Independent Electoral & Boundaries Commission & others***](https://kenyalaw.org/akn/ke/judgment/kesc/2013/2)***, Petition No 5 of 2013, restated the basic rule on the shifting of the evidential burden, in these terms:…a petitioner should be under obligation to discharge the initial burden of proof before the Respondents are invited to bear the evidential burden….”*** ***51.In the foregoing context, it is clear to us that the petitioners, in the instant case, bore the overriding obligation to lay substantial material before the Court, in discharge of the evidential burden establishing their treatment at the hands of 1st respondent as unconstitutional. Only with this threshold transcended, would the burden fall to 1st respondent to prove the contrary. In the light of the turn of events at both of the Superior Courts below, it is clear to us that, by no means, did the burden of proof shift to 1st respondent.”[Emphasis supplied].*** 1. I have said enough to show that the learned trial magistrate misapprehended and misapplied the incidence of burden and standard of proof. The application, [if at all], was with respect, skewed, nay, slanted. **Conclusion:** 1. The appellant was obligated to demonstrate that the impugned Judgment was fraught with errors. It suffices to underscore that the appellant has pinpointed several errors. In particular, the appellant has demonstrated that the findings and conclusions by the learned trial magistrate, are at variance with the evidence on record. 2. Premised on the foregoing, there is no gainsaying that the appellant has met the threshold to warrant interfering with the impugned Judgment. Bearing in mind, the principles in **Mwangi & another v Wambugu [1984] KECA 13 (KLR**), I am minded to and do hereby impeach the Judgment. **Final orders:** 1. Flowing the discussion 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 15.10.2025 and the consequential decree arising therefrom, be and is hereby set aside.*** 4. ***In lieu thereof, an order be and is hereby made dismissing the 1st respondent’s suit vide amended Plaint dated the 20.09.2021.*** 5. ***Costs of the Appeal be and are hereby awarded to the Appellant.*** 6. ***The Appellant is equally awarded costs of the suit [Proceedings] in the lower court.*** 7. ***The Costs in terms of clause [iv] and [v] above shall be agreed upon, and in default be taxed in the conventional manner.*** 8. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU ON 27TH DAY OF JULY, 2026.** **OGUTTU MBOYA; FCIArb; CPM [MTI-EA].** **JUDGE.** In the presence of: Court Assistant: Zakayo Mr. Bundi Muthamia for the Appellant. Mr. Kiogora Nganga holding brief for Mr. Kariuki for the 1st Respondent Ms. Miranda Senior Litigation Counsel for the 2nd , 3rd and 4th Respondents.