https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4336

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYAHURURU** **ELC APPEAL NO. E006 OF 2023** **MILLICENT WANJIRU WANJOHI………………………….APPELLANT** **VERSUS** **MARGARET CHELAGAT KIMOE…………..………1ST RESPONDENT** **COUNTY GOVERNMENT OF LAIKIPIA…………..2ND RESPONDENT** ***( Being an Appeal against the Judgment of Hon. Senior Resident Magistrate S. N. Mwangi delivered on 12th January, 2023 in Nyahururu Chief Magistrate’s Court ELC No. 242 of 2018)*** **JUDGMENT** *Case before the Trial court* 1. The suit before the trial court was filed by the appellant/plaintiff vide a plaint dated 13.3.2017. She contended that she was the lawful and legal proprietor of the suit plot No. B43 Rumuruti Town Council African location having been allocated the same by Rumuruti town council in 1999 after balloting for the same. That since then, she has been in peaceful and quiet possession of the same, but on 6.3.2017 the defendant trespassed on the said plot, started digging a pit latrine, cut down the fence and deposited materials in preparation for construction. She contended that she has suffered loss and damage due to the actions of the defendant. 2. The plaintiff therefore sought the following orders; **“** 1. **A declaration that the plaintiff is the lawful owner and proprietor of PLOT NO. B43 RUMURUTI TOWN COUNCIL AFRICAN LOCATION.** 2. **An order of mandatory and permanent injunction against the defendant by herself, her agents, servants and or employees and or anybody acting pursuant to her instructions from trespassing, entering, remaining, occupying, cultivating, constructing, possessing, utilizing and or in any manner whatsoever interfering with the plaintiff’s peaceful and quiet possession and occupation of PLOT NO. B43 RUMURUTI TOWN COUNCIL AFRICAN LOCATION** 3. **General damages for trespass and unlawful occupation against the plaintiff’s property aforesaid.** 4. **Costs of the suit and interest at court rates.** 5. **Any other or further relief that this honourable court may deem fit and just to grant.”** 6. The defendant opposed the suit vide the statement of defence and counterclaim dated 22.3.2017 and amended on 18.3.2019. The defendant contends that she was allocated the suit plot way back in 1986 together with her fellow neighbours such as Milcah Maina and that she took possession of the said plot, fenced the same and built a two bedroomed house and a latrine. She avers that in July 2015, the plaintiff and her hired goons descended on her plot, demolished it to the ground and carted away the materials and household goods to Rumuruti offices. She contends that her plot was not available for re-allocation as her own allocation had not been cancelled, forfeited or terminated. 7. In her counterclaim the defendant brought on board the County Government of Laikipia as a second defendant. She seeks orders for dismissal of the plaintiff’s claim and for entry of judgment in following terms; **“** 1. **A declaration that the repossession and subsequent reallocation of plot number B43 RUMURUTI TOWN COUNSIL AFRICAN LOCATION to the defendant is null and void, be and is hereby revoked forthwith.** 2. **The 2nd defendant be ordered to give vacant possession of plot number B43 RUMURUTI TOWN COUNSIL AFRICAN LOCATION together with allocation documents of the plaintiff forthwith** 3. **General damages for illegal, irregular and unprocedural double evictions against the defendants jointly and severally.** 4. **An order of permanent injunction be issued directed to both the 1st and 2nd defendants restraining them, their agents, servants, employees or assigns from interfering with the plaintiff’s quiet possession and enjoyment of plot number B43 RUMURUTI TOWN COUNSIL AFRICAN LOCATION.** 5. **Cost of the suit be borne by the defendants.** 6. At the trial the plaintiff MILLICENT WANJIRU WANJOHI testified as PW1 that in 1999, Rumuruti Town Council was giving out plots which had been gazette and she therefore visited their offices and paid shs 2000 as directed. They were later called for balloting process of which she balloted plot B43 and she was also shown the same plot. That in year 2014 her husband who used to live in Rumuruti was told by a neighbor that someone had gotten into the suit plot and built an iron sheet structure. 7. That she reported the matter at Rumuruti Town Council where she got a letter dated 7.10.2014 stating that the plot was hers. The Council people therefore removed the trespasser. However two years later, the trespasser came back to the land, cut down trees and burnt charcoal. She also threatened her husband with a panga once he went there. That they reported the matter to the DCI who helped them to get the person out of the land. However she came back again, cut down trees, dug a hole and even erected a fence. That is when she decided to take the trespasser to court. 8. In support of her case the plaintiff produced the following documents; ballot paper, rate payment receipt, rent demand notice, letters and minutes from the Town Planning Works and Housing Committee, plot rent ledger, list of plots not claimed and developed, and the newspaper advertisements. 9. In cross-examination PW1 stated that her mother is Jane Muthoni then corrected herself and said she is Millicent Wanjiku Wanjohi. She avers that she has many plots in Rumuruti then again corrected herself and stated that she only has the suit plot in Rumuruti. She avers that she has never made an application to Rumuruti Council to be given a plot, she only heard from people in Rumuruti that plots were being gazetted in 1999. She avers that her application for the plot was made orally. She has no document to indicate that she was allocated the suit plot, nor a letter from the Council to prove that the land was given to her, adding that no person can be given anything without applying. However, in the case at hand, a person could qualify to get a plot by paying. She also concedes that there was no letter calling them for balloting, and she did not see the register for pre-qualified persons to ballot. She avers that immediately after balloting they did not make any payment until year 2015 and to be specific it was on 30.9.2025 when she paid Ksh 9,660. 10. She avers that her Exhibit 7 was a document which was delivered to her husband and it indicates that the plot was repossessed in 1999. She does not know the process of repossession of a plot. She avers that the said document is not from the County Executive Committee of the County Government at Rumuruti. 11. PW1 is not aware that the structures on the suit land were demolished by the County officials in year 2014. She is however aware that the trespasser was given a letter to remove the structures. She then went on to state that she is aware that the house on the land was demolished by the County Government officials and the trespasser was not allowed to build another house. Further, that the second house which was built was demolished after PW1 reported the matter to the DCIO. She is not aware that there was a third attempt to build a house. She avers that she has not constructed a house or a fence on the suit land and that there are no building materials there. 12. In Re-examination, PW1 reiterated that she is the owner of the suit plot and that there was no requirement to write to be allocated such a plot. That one would just go there, ask for the plot then pay for it. On balloting, she averred that there was a notice on the noticeboard to that effect where one entered, went to the box and picked the ballot. She contends that she was not shown anything to prove that the land belonged to the defendant. 13. PW2 is one FRANCIS KIEMA KARANI a Ward Administrator working with the County Government of Laikipia at Rumuruti. He avers that he had minutes of the plots allocated in year 2000 by Rumuruti Town Council and to be specific he had the minutes of 19.5.2000 by special Town Planning Works and Housing Committee, along with the notice dated 12.5.2000 for the said meeting. He also had minutes of 21.7.2000 of the said committee and the notice thereof of 17.7.2000. Further, he had the plot rent ledger for Rumuruti Town Council including the one for plot 1343. He also had a schedule for the list of plots not claimed and not developed, notices put up in East African standard of 8.11.1999 and the Daily Nation of 27.5.1999. He produced these documents as plaintiff exhibits 8 – 15. 14. He avers that there was a resolution by Rumuruti Town Council for repossession of the plots which had not been paid for, of which the new allottees were required to pay the redeeming amounts and they were then to be issued with holding receipts awaiting allocation. To this end, balloting was done of which the plaintiff was No. 22 in the balloting list and she balloted for the suit plot No. B43. That is why the proprietor as per the rent ledger for plot No. B43 is the plaintiff. To this end she has been paying rates for the suit plot. 15. On cross-examination PW2 stated that he only found the documents which he had produced in court and therefore his role was limited to production of the said documents. He is aware that the County Government was sued in the matter as a party but they did not file any papers. He avers that there was a list of the previous owners before repossession but he doesn’t have it as he does not have such records. He similarly does not have a list of rent defaulters before repossession. His list is only that of the rent owners. 16. He avers that once plots were repossessed members of the public were invited to apply as per minute No 9 of year 2000 in exhibit 11. He does not know how members of the public were invited to apply. He avers that there were no personal notices to plot owners. He has no communication on notices to the applicants who are successful. They did not have a system of letters of allotment or offer, they only had minutes. 17. In regard to a letter dated 12.11.2015 from NLC to the secretary of the County Land Management Board, PW2 stated that he had a copy of the same. He avers that they provided the list of defaulters to the Board but they did not avail such records to the first allottees. He then went on to state that they did not have a list of defaulters and the list of first allottees. That in the letter from NLC dated 11.1.2017, the defendant was indicated as a first allottee having been allocated the plot in 1986 and she had taken possession and had also put up a house. 18. He confirms that there was eviction of the first allottee by the County Government through its enforcement office, of which the Sub County Surveyor one Mr. Manyala participated in the eviction of the defendant. However, he has no minutes authorizing the said eviction and he cannot tell how the eviction was done. He also cannot tell whether the defendant was living in the house before eviction. He contends that the plot in question is owned by PW1. 19. In Re-examination PW2 stated that ownership of plots in Rumuruti Township is shown by way of rent ledgers at Rumuruti Town Council of which, the allocating authority was the District Land Allocation Committee which was under Rumuruti Town Council. He avers that he has no documents to show that the defendant was ever allocated plots in Rumuruti Township, adding that the council had mandate to repossess and re-allocate the plots. 20. The court did put across some questions to PW2 where he stated that according to minutes of the committee, the committee did go to the ground and verified the developments of the suit plot and confirmed those plots which were undeveloped and those where there were defaults in payment in consideration for repossession exercise. He avers that the list of the first allottees could be produced by the Town Council of Rumuruti and the County Settlement office, but during his tenure, Pw2 did not find any records of the first owners. 21. The defendant MARGARET CHELAGAT KEMOI testified as DW1. She avers that she was allocated the suit plot B43 Rumuruti African Location in 1986 of which she constructed a house, erected a fence using barbed wire, planted trees and she started occupying the land. That is the place where she gave birth and raised five children. The house she constructed had two rooms and a kitchen, and there was a latrine. That she lived in the said premises until July 2015 when her house was demolished by the plaintiff and the County Council with hired men. She avers that she was not issued with any notice for the demolition. 22. She reported the matter at Rumuruti Police station but she did not get any help. She however did take photographs of the demolished houses and destroyed items. She avers that in November 2015 the National Land Commission came there and Mr. Manyara, the County Surveyor as well as the Ward Administrator PW2, confirmed that demolition of her houses had taken place, of which the officers stated that the defendant had nothing to show that the suit plot was hers. 23. She avers that her documents relating to the suit plot were at her parents home in Njoro, where by during the post election clashes in year 2007, her documents got burnt. She was however issued with a police abstract to that effect which she produced as an exhibit. 24. She avers that in January 2017 a man came and told her to go and collect her letter of ownership of the plot and she got a document to that effect from Mr. Manyala after the case was filed in court. She was also given authority to construct the house. This was after she had appealed to the board regarding her eviction. After completing the construction, the plaintiff came again and demolished the house and threw it on the road as per the photographs in her Exhibit 5. That she reported the matter to the police. She contends that the court also gave her a right to go back to the land and construct, but when she went to build on the land, she was picked by the police and she was taken to the police station where the OCS told her never to step on the suit plot despite the fact that she had a court order allowing her to go back to the premises. 25. The documents produced in support of her case include the police abstract, chief’s letters, photographs and letter from the National Land Commission. 26. On cross-examination, Dw1 stated that she got the plot in 1986, that she had lived in Rumuruti from her youthful days so when the plots were being given, she got the suit plot. She contends that she never went for balloting but she paid for the plot in May 1996. She avers that she has lived on that plot since 1986 and it’s the other claimant who came afterwards to trespass on her land. 27. In re-examination, DW1 stated that she never heard of balloting in Rumuruti. She reiterated that the photographs indicate that she had been residing on the suit plot. 28. DW2 is GRACE WAIRAGU the National Land Commission County Co-ordinator in Laikipia County. She contends that their Commission deals with issues of public land in both the National and the County Government and they also deal with Alternative Dispute Resolutions. They also issue letters of allotment after the survey and planning is done by the County Government. She avers that in the area known as African Location, no leases have been issued for the plots but they are currently undertaking the regularization exercise. 29. DW2 was stood down in the middle of her evidence as she did not have some documents and therefore summons were issued to Josphat Waswa the National Land Commission Coordinator at Meru County and Mr. Peter Manyala. 30. DW3 is one JOSPHAT WASWA the National Land Commission Meru County Coordinator formerly the County Coordinator at Laikipia. He avers that they received a complaint from the defendant that someone was claiming her plot. That her case was taken up by the Board which conducts Dispute resolutions on land ownership. Thus on 22.10.2015 they convened a meeting where the defendant tendered her complaint that she owned the suit plot and that her house had been demolished by the county officers and her household goods were confiscated. The Board could not understand how the defendant was removed from the register of plot B43. That is how he came to write the letter of 12.11.2015 asking for minutes for repossession of the suit plot, records of the first plot allottees, and list of plot defaulters which apparently led to repossession of the suit plot. The letter was delivered to the County offices but it was never responded to. The Board also authorized him to write to the DCIO as per defence exhibit 3. 31. He avers that the suit plot was allocated to the plaintiff erroneously as there was no reference to the Commissioner of lands. He added that the eviction of the first allottee (the respondent) was inhuman and unconstitutional. DW3 left the matter to be investigated by the DCIO. He avers that the plaintiff also went to their office with her husband where she was claiming that the suit plot was hers. 32. In cross-examination, DW3 stated that they never visited the scene, therefore he cannot say anything about the photographs but the County Council officers confirmed that they are the ones who had gone to the ground. He however did not have a copy of the written complaint and the minutes of the deliberations as the file is in Laikipia while he is in Meru. He avers that as a land expert, the problem was created by the Town Council of Rumuruti. Nevertheless the Town Council could allocate land on authority by the Commissioner of Lands, but the land is government land which ought to be planned first before allocation. 33. He avers that as per defence exhibit 4 this was an allocation by Rumuruti Town Council to the defendant. 34. In Re-examination, Dw3 stated that their Commission had established that the suit plot was allocated to the defendant even though the later did not have documents as they were burnt. They ordered that the first allottee was to be put in possession of the land but this was not done. 35. In a judgment delivered on 12.1.2023, the trial court found that the plaintiff had failed to prove her case on a balance of probabilities and therefore dismissed the said case and allowed the counter claim of the defendant as follows; **“** 1. **A declaration be and is hereby made that the repossession and subsequent reallocation of plot No. B43 Rumuruti Town Council African Location to the 1st defendant is null and void and that the same is thus revoked forthwith.** 2. **The 2nd defendant be and is hereby ordered to give vacant possession of plot No. B43 Rumuruti Town Council African Location together with allocation documents to the plaintiff in the counterclaim forthwith.** 3. **I do also award her kshs 600,000/- as exemplary damages.** 4. **An order of permanent injunction be and is hereby issued restraining the 1st and 2nd defendants in the counterclaim, their agents, servants, employees or assigns from interfering with the plaintiff’s in the counterclaim quiet possession and enjoyment of plot No. B43 Rumuruti Town Council African Location.** 5. **The defendants are also condemned to pay costs of the suit.”** *The Appeal* 1. Aggrieved by the aforementioned decision, the plaintiff/appellant filed a Memorandum of Appeal dated 9.2.2023 raising six grounds of Appeal as follows; that the Trial Magistrate erred in holding that both litigants were allocated the same plot yet there was no evidence to that effect, holding that NLC had a role in allocation of plots, and relying on purported proceedings from the said entity, dismissing the appellants claim while upholding the counter claim of the respondent who did not produce any documents to support her claim and awarding excessive and unreasonable exemplary damages without any proof of loss. 2. The appellant therefore prays that the Trial Court judgment be set aside and in place thereof judgment be entered in her favor and the counter claim of the 1st respondent to be dismissed with cost. 3. The appeal was heard by way of written submissions of which the submissions of the appellant are dated 10.4.2026. She contends that the appellant had produced documents showing how she came to be allocated the suit plot, but in converse the respondent did not tender a single document to show that she had even been allocated the said plot. That the trial court despite the absence of evidence presented to it by the respondent proceeded to enter judgment in favour of the respondent. She argues that it was erroneous for the trial court to rely on a letter from NLC (page 70 of the record of Appeal) indicating that the respondent was allocated the plot in 1986 yet there is no evidence as to which was the allocating authority. 4. That even assuming that the 1st respondent was allocated the plot in 1986, there is no evidence to indicate that she complied with the terms of allocation. Citing the Supreme Court case of **Torino Enterprises V Hon Attorney General** the appellant argued that a letter of allotment does not in itself confer any title in favour of the bearer thereof thus the appeal should be allowed. 5. The submissions of the 1st respondent are dated 20.4.2026 where it is argued that the Nyahururu ELC Appeal No. 6 of 2023 has a mixed up Memorandum of Appeal as there is another appeal No. 69 of 2023 at Nyandarua. She therefore urges the court to dismiss this appeal. She contends that the 2nd respondent is wrongly included in this appeal as they were not parties in the initial plaint but they were there in the counterclaim. She further contends that the appellant cannot impeach or overturn the counterclaim rendered by the Trial Court as against the 2nd respondent who was ordered to reinstate the suit plot to the 1st respondent. 6. That in the **Nyahururu ELC 325 of 2017 Millicent Wanjiru V Margaret Chelagat Kimoe**, the Judge did set aside the interim orders and ordered that the 1st respondent be reinstated on the suit plot, thus the findings and the judgment cannot be impeached. 7. It is further argued that the appellant did not have a single letter of allotment, letter of reallocation or offer by Rumuruti County Council in regard to the suit plot and therefore she had no better or superior right or claim over the said plot as against the 1st respondent. Further, repossession and the double evictions were done contrary to the principles of natural justice and therefore the exemplary damages are merited. It contends that it is the appellant who was alleging and therefore bore the burden of proof. DETERMINATION 1. This being a first appeal, this court reminds itself of its primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse the evidence and then determine whether the conclusions reached by the learned magistrate are to stand and give reasons either way as was pronounced in the cases of **Selle and Another Versus Associated Motor Boat Company Ltd & Others [1968] Ea 123** and ***Abok James Odera t/a A.J Odera & Associates Vs John Patrick Machira t/a Machira & Co. Advocates (2013) eKLR.***The court held that a first appellate court has a duty to re-evaluate, re-assess and re-analyse the record and make its own conclusions. 2. I have considered the trial court’s record, the grounds of appeal as well as the rival submissions. I will desist from commenting on issues submitted by the respondent regarding the validity o]f the memorandum of appeal which also has a number 69 0f 2023 Nyandarua. The reason being that the said issue was not raised at the time the court gave directions on the hearing of this Appeal. 3. There is no controversy that the respondent was in occupation of the suit plot in year 2015 when she was evicted. The said eviction was based on the claim of the appellant that she was the lawful owner of the suit land. In her pleadings, the appellant contended that she balloted for the suit plot and was allocated the same in year 1999 and that she has been in occupation of the said plot. At the trial, the evidence proffered by one Francis Kiema Karani, the ward administrator was that a resolution was made by the Rumuruti Town council for re-possession of 435 plots, the suit plot being one of the aforementioned plots. **45.** The provisions of **Section 107 of the Evidence Act** stipulate that; **“ Whoever desires any court to give judgment as to any** **legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person”.** **46.** While **Section 109** thereof further provides 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”.** **47**. In the case of **Gichinga Kibutha v Caroline Nduku [2018] eKLR,** the Court held that; **“It is not automatic that in instances where the evidence is not controverted, the claimant’s claim shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.”** **48.** What resonates from the above analysis is that he who alleges bears the burden of proving, see - **Jennifer Nyambura Kamau v Humphrey Mbaka Nandi [2013] eKLR.** In the case at hand, it was incumbent upon the plaintiff to proof how she acquired a re-possessed plot, regardless of the evidence tendered by the respondent. **49.** To start with, the resolution mentioned by Pw2 which gave rise to the repossession of plots is anchored on the notices and minutes availed by the appellant as items 4-7 in the list of documents of the appellant ( see page 23 of the record of Appeal). It is in the minutes of 19.5.2000 when a resolution was made at MIN 4/2000 that “ *undeveloped plots be repossessed*”. It follows that any claim over the suit plot could only come after the said resolution. However, the appellant pleaded that she was allocated the plot in 1999, thus her pleadings are at variance with her evidence, as it is not logical that she was getting the plot in year 1999 but the repossession of the same was futuristic! **50.** In the case of **The Independent Electoral and Boundaries Commission vs- Stephen Mutinda Mule & 3 others (2014) eKLR**, the court cited with approval the decision of the **Malawi Supreme Court of Appeal in Malawi Railways Ltd –Vs- Nyasulu (1998) MWSC 3**, where the court quoted an article by sir Jacob entitled “The present importance of pleadings” published in 1960 where the author had stated that; **“As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rule of pleadings…..for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties….”** **51.** Secondly, there is no evidence tendered by the plaintiff to indicate that the plot in question was flagged out as one of the plots for repossession. In the **minutes of 19.5.2000**, the town treasurer stated that there were two lists of the plots to be repossessed, one for undeveloped plots, and the developed plots, which had a total of 254 plots where nobody had come to claim ownership*.* The vagueness in the list is quite telling that this was a rather unprocedural step. In the other minutes of 21.7.2000, the issue had progressed to the method of redemption. Further no list with or without the suit plot was availed in the aforementioned minutes. **52.** Pw2 stated that he did not have records or list of the previous owners, he did not have a list of defaulters either, though they had provided the list to the board. The bottom line of this evidence is that there is nothing to align the suit parcel with any list of plots which were to be repossessed. Thus the two primary documents, the minutes which formed the basis of repossession are anchored on nothing. **53.** The third issue relates to balloting. The ballot paper is not clear, but the payment for the same is the receipt of 20.6.2000 at page 7 of the record of appeal. This is in tandem with appellants evidence in cross examination where she stated that Sh 13 745 was paid on 20.6.2000. However, her second minutes at page 32 of the record of appeal are the ones which were capturing the method of redeeming plots, where the relevant minutes reads as follows; **“ REDEMPTION OF THE REPOSSESSED PLOTS** **..Members discussed the system to be used and came up with the ballot system as a fair method.”** **54.** The aforementioned meeting took place on **21.7.2000**. It follows that the appellant was already ahead, paying for the ballot days earlier on **20.6.2000** before the commencement of the actual balloting. This is yet another pointer to the shaky claim of the appellant. **55.** On the same breadth, the averment by Pw2 that the appellant started paying rates on 20.6.2000 is baseless, thus their plot rent ledger is equally hollow and not a basis to assert the claim of the appellant. **56.** Fourthly, it is quite apparent that no notices were issued to the respondent regarding the repossession of her plot. The notice of **12.5.2000** was for the meeting of **19.5.2000**, while the notice of **17.7.2000** was for the meeting of **21.7.2000** and nothing more. The other documents which can be termed as notices are the newspaper advertisements. For the East African standard of **8.11.1999**, this was a lamentation by the Town Clerk, Dishon Kamau that 840 plots within the town were owned by non-existent people. That is certainly not a notice. For the Daily Nation of **27.5.1999**, it was actually a notice for repossession relating to three categories of plots. However, just like in the minutes of **19.5.2000**, the suit plots is not associated with any of the three categories. In other words, there was no list defining the three categories, thus one cannot tell the basis upon which the repossession of the suit plot occurred. **57**. Still on the notice, it is clear that the two newspaper advertisements were general notices. As it were, Pw2 stated that *“ there were no personal notices to plot owners and no copy is maintained in the office”.* The evidence of Pw2 that “ *Am sure the notices were issued*” is again hollow. **58.** The fifth point closely tied to the notice is the resolution made in the minutes of **19.5.2000** that *“ …unanimously, original owners to be given priority to redeem their plots and clear the outstanding rates in total”.* There is no evidence to indicate how this resolution was implemented. In the next meeting of **21.7.2000**, the Council simply indicated that 40 people had cleared their amounts. Again there is no evidence as to how this information was relayed to the affected original plot owners or how the suit plot was associated with none compliant owners of plots. **59**. This far, it becomes clear that there was no tangible evidence to support the allocation of the suit plot to the appellant on the basis of a repossession exercise. It follows that the purported allocation of the suit plot to the appellant was unlawful and could not birth a protectable claim over the suit property by the appellant. It therefore matters not that the respondent did not have her own documents of allocation. However, as it were, the respondent gave a plausible account of how her documents got burnt during civil strife. To this end, the respondent availed the report of 27.6.2007 regarding the burning of the house of Charles Kipngetich Kemei. This document corroborates the respondents evidence that her documents got burnt in the house of her parents. **60.** I find that the trial magistrate did not make a thorough analysis of the circumstances under which the suit plot was allocated to the appellant, for certainly this was not a case of double allocation as indicated in the trial judgment. It was a case of an irregular and unlawful allocation. However, from whichever angle one looks at the claim of the appellant, it is still bound to collapse. **61.** It has emerged that the respondent was evicted not once, not twice but apparently 3 times even in the face of a court order. The manner of her eviction was horrendous where at some point, her house was thrown onto the road! That being the case, I find that the trial court did not err in awarding damages including exemplary damages, seeing that the evictions carried out against the respondent were done in an extremely inhumane manner. **62**. The end result is that I find no reason to disturb the judgment of the trial court. This appeal is therefore dismissed with costs to the respondent. **DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 8TH DAY OF JULY 2026 THROUGH MICROSOFT TEAMS.** **LUCY N. MBUGUA** **JUDGE** **In the presence of:** **Nancy Mwangi – C/A** **Kamanga for appellant** **Joel Siglai for respondent**