[2025] KEELC 4546 (KLR)

Wasike (Suing on behalf of Muchi PEFA Church) v Mugira & 2 others (Environment and Land Appeal E052 of 2024) [2025] KEELC 4546 (KLR) (12 June 2025) (Judgment)

Neutral citation: [2025] KEELC 4546 (KLR)

Republic of Kenya

In the Environment and Land Court at Bungoma

Environment and Land Appeal E052 of 2024

EC Cherono, J

June 12, 2025

Between

Martin N Wasike (Suing on behalf of Muchi PEFA Church)

Appellant

and

Shadrack Aradi Mugira

1st Respondent

David Bwoyi

2nd Respondent

Benard Wasike

3rd Respondent

Judgment

Introduction 1. Vide a memorandum of appeal dated 27/11/2024, the Appellant herein who was the plaintiff before the trial Court in Webuye PMCC Case no. 30 of 2019 preferred this appeal challenging the judgment delivered by HON. V. YATOR P.M on 24/07/2024 dismissing the Plaintiff/Appellant’s case against the Respondents.

2. The brief background of the former suit is that the Appellant jointly with Joseph Wanjala Kutiri filed a plaint dated 02/08/2019 in which they averred that in the year 2002, they entered into an agreement where the said Joseph Wanjala Kutiri sold him ¼ acre of land parcel no. Ndivsi/Muchi/744. That the Respondents were officials of Muchi PEFA Church and signatories of the agreement. That the church leadership underwent changes in February 2019 and the Respondents were expected to hand over the title documents for the abovementioned land but they became evasive. That the Respondent sub-divided the suit land into two portions i.e land parcel no. Ndivsi/Muchi/9777 and 9778. His claim therefore was for;a.An order compelling the defendants to release and/or surrender the title deeds for LR NO. Ndivsi/Muchi/9777 and 9778 to the plaintiffs.b.Costs of the suit.c.Any other relief this honourable court may deem fit.

3. The Respondents entered appearance and filed a statement of defence dated 10/09/2019 in which they denied the Appellants’ claim and further averred that the issue of the titles lay squarely on the said Joseph Wanjala Kuturi and the Land Registrar.

4. The suit before the trial court proceeded by way of viva voce evidence with the Appellants calling two witnesses while the Respondents called one witness.

5. PW1Joseph Wanjala Kutiri adopted his witness statement dated 02/08/2019 as his evidence-in-chief. He testified that he owns land parcel no. Ndivsi/Muchi/744 and that he entrusted the Respondents to do a sub-division. He produced a copy of green card as P-Exhibit 1. He asked the court to compel the Respondents to give both him and the church the respective titles from the sub-division.

6. PW2 Martin Nyongesa Wasike adopted his witness statement dated 02/08/2019 as his evidence-in-chief. He testified that their claim is for title deed for land parcel no. Ndivsi/Muchi/9778 which belongs to the church. He testified that PW1 had been issued with his title deed and that he had no proof that the Respondents were responsible for processing the title he claims. That when he visited the lands office, he was told that the title he claims had been collected but he was not told who collected the title.

7. DW1Shadrack Kenani Mukira adopted his witness statement dated 19/06/2023 as his evidence in chief. He testified that Joseph Wanjala Kutiri was the owner of land parcel no. Ndivsi/Muchi/744 and had sold it to the church. He stated that the Appellant ought to have visited the lands office to verify his facts. In cross-examination, he testified that the Respondents were involved in the process of transferring the land purchased but he did not collect the title from the lands office and doesn’t know who did as he was transferred prior.

8. Upon determining the suit, the trial court dismissed the Appellants’ case with costs. Being aggrieved by the trial court’s judgment, the Appellant preferred the present appeal on the following grounds;a.That the learned magistrate grossly erred in law in evaluation of the evidence before her.b.That the learned magistrate erred in fact and in law in failing to properly frame the issues for determination in the suit before her.c.That the learned magistrate erred in fact and in law by adjudicating on issues not raised by the parties for consideration, the issue of holding of property in the name of the registered trustees of PEFA Church.d.That the learned magistrate made a mistake by failing to acknowledge the mediation attempt by parties both at the church level and the court annexed mediation.e.That the learned trial magistrate erred in law and in fact by putting reliance on evidence not adduced in the proceedings specifically relying on the church constitution.f.That the learned trial magistrate misapprehended the law by ignoring material facts in evidence adduced by the appellant.g.That the learned trial magistrate erred in law and in fact and expressed bias by comparing evidence in two different matters and making a determination on the basis of the two unrelated matters.h.That the learned trial magistrate misapprehended the law by failing to determine the case on a balance of probabilities.

9. The Appellant sought to have the judgment of the trial court varied, reviewed and or set aside.

10. When this appeal came up for directions, it was agreed that this appeal to be disposed of by way of written submissions.

11. The Appellant filed written submissions dated 28/03/2025, wherein he reiterated the factual allegations forming the basis of his case. Conversely, the Respondents filed their submissions dated 26/03/2025, equally restating the factual averments and positions advanced in their defence.

Analysis and Determination. 12. This being a first appeal, this court is under a duty to reconsider the evidence adduced and analyse it so as to be able to reach its own independent conclusion and determine whether the conclusions reached by the trial court are consistent with the evidence and the applicable law. In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court held that:“this being a first appeal, it is trite law that this court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”

13. I have read the Memorandum of Appeal, the Record of Appeal, written submissions filed by the parties and the court record generally and although the Appellant raised eight (8) grounds of appeal, I am of the opinion that the Appeal may conclusively be determined on the following two grounds: -:a.Whether the failure to frame issues for determination vitiates the judgment. (Ground 2 and 3)b.Whether the evidence adduced was sufficient to prove the claim on a balance of probabilities. (Ground 1,4,5,6,7 and 8)

14. Regarding the first issue, the Appellant lamented that the trial magistrate erred in law and fact by failing to frame the issues for determination and ended up adjudicating on issues not raised by the parties. Order 21 Rules 4 and 5 of the Civil Procedure Rules provides as follows;4)Judgments in defended suits shall contain a concise statement of the case, the points of determination, the decision thereon, and the reasons for the decision.5)In suits in which issues have been framed, the court shall state its findings or decision with the reasons therefore upon each separate issue.

15. In the case of Rukidi vs Iguru and Another (1995-1998) 2 EA 318 the court held that:-“Framing of the issues is an important step in the determination of a case as it defines the areas of controversy and narrows down the scope of inquiry. It makes the hearing of the case more focus oriented and saves the time of the court …”

16. In the instant case, the trial magistrate in paragraph 7 expressly framed the single issue for determination as follows; “whether the defendnats should be compelled to surrender title number Ndivisi/Muchi/9777 and 9778” as mandated under Order 2 Rule 5 of the Civil Procedure Rules. Further, upon examination of the record, it is apparent that the trial magistrate proceeded to consider and analyse the facts as pleaded by the parties, as well as the oral and documentary evidence adduced during the trial. Therefore, ground 2 and 3 fail.

17. On whether the evidence adduced was sufficient to prove the claim on a balance of probabilities, the Appellant contends that he entered into a land purchase agreement on behalf of Muji PEFA Church with one Joseph Wanjala Kutiri for a portion of land forming part of land parcel No. Ndivisi/Muchi/744. According to the Appellant, the Respondents who were fellow pastors and signatories to the agreement were subsequently entrusted with the responsibility of overseeing the subdivision of the land and facilitating the issuance of a title deed in favour of the church. He averred that the land was duly subdivided, giving rise to land parcels No. Ndivisi/Muchi/9777 and 9778. The Appellant further alleged that the Respondents are unjustifiably withholding the title deed belonging to the church.

18. The Respondents on their part admitted to have been involved in the transfer and sub-division process but denied being in possession of the title deed in the name of the church.

19. In support of the Appellant’s case, a copy of the green card relating to land parcel No. Ndivisi/Muchi/744 was produced in evidence and marked as P-Exhibit 1. The said document indicates that the said parcel of land was registered in the name of Joseph Wanjala Kutiri on 2/10/1970. Further, the green card reflects that the said title was formally closed on subdivision on 14/02/2018 resulting in the creation of two new parcels, namely Ndivisi/Muchi/9777 and Ndivisi/Muchi/9778. This documentary evidence corroborates the Appellant’s claim that the original parcel was subdivided and new titles were issued.

20. On this sole important issue, the law is clear that he who alleges must roof. The Burden of Proof mean an obligation by a person to adduce evidence of a fact. Section 107 of the Evidence Act defines Burden of Proof as– of essence the burden of proof is proving the matter in court. Section 109 of the Evidence Act exemplifies the rule in Section 107 on proof of a particular fact. It is to the effect that, the burden of proof as to any particular fact, lies on the person who wishes to rely on its existence. Whoever has the obligation to convince the court is the person said to bear the burden of proof. Thus, if one does not discharge the burden of proof, then the person will not succeed in his claim for the same.

21. In the case of Alice Wanjiru Ruhiu Vs Messaic Assembly of Yahweh [2021] eKLR the court had the opportunity to set out the principles and held as follows;“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party's case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues. The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence"

22. The question that arise therefore is, whether the Appellant herein, being the mover of the case in the lower court discharged his burden of proof that the Respondents are in possession of the title deeds relating to land parcel no. Ndivisi/Muchi/9777 and 9778. Although the Appellant alleges that the Respondents are his fellow pastors and signatories to the agreement and are entrusted with the responsibility of securing title deed for the church, he has not produced any documents to proof that any agreement took place or that there was a delegation of such authority to the Respondents or any of the fundamental elements in support of his claim. The Appellant’s assertions, though made with conviction, remain unsubstantiated in the absence of tangible evidence demonstrating that the Respondents were obligated to act on behalf of the church in the manner alleged.

23. Moreover, the appellant has not adduced any credible evidence to show that the Respondents are in actual possession or custody of the said title deeds. There is no documentation or testamentary evidence confirming that the said titles were issued to them. The green card presented as P-Exhibit 1 merely shows the historical ownership and subsequent subdivision of the original parcel but does not link the Respondents to the current titles. In the absence of such nexus, this Court finds that the Appellant’s claim that the Respondents are unjustifiably withholding the church's title deed lacks evidentiary support and is speculative at best.

24. Further, upon review of the trial court’s judgment, I note that reference was made to Civil Case No. 68 of 2019. However, the basis upon which the trial court drew a comparison with that case is unclear, and its relevance to the matter at hand is not adequately explained. In this regard, the trial court fell into error by referring to the said case without establishing its applicability or connection to the present proceedings, as correctly raised in ground 7 of the memorandum of appeal.

25. Be that as it may and having considered the appeal in its entirety, it is my finding that the Appellant has not demonstrated sufficient grounds to warrant the intervention by this court as sough in the memorandum of appeal. It is for that reason that I find this appeal lacking in merit and the same is hereby dismissed. Each party shall bear their own costs.

26. Orders accordingly.

DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 12TH DAY OF JUNE, 2025. .........................HON.E.C CHERONOELC JUDGEIn the presence of;1. Appellant in person-present.2. Mr. Athunga for the Respondents.3. Bett C/A