Thiritu v Kaburu [2025] KEELC 4458 (KLR) | Land Encroachment | Esheria

Thiritu v Kaburu [2025] KEELC 4458 (KLR)

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Thiritu v Kaburu (Land Case Appeal E011 of 2024) [2025] KEELC 4458 (KLR) (5 June 2025) (Judgment)

Neutral citation: [2025] KEELC 4458 (KLR)

Republic of Kenya

In the Environment and Land Court at Isiolo

Land Case Appeal E011 of 2024

JO Mboya, J

June 5, 2025

Between

Zachary Thiritu

Appellant

and

Zachary Kaburu

Respondent

Judgment

1. The Appellant herein approached the Chief Magistrate's court at Meru vide Plaint dated the 15th November 2007 and wherein the appellant sought the following reliefs;I.A permanent injunction restraining the defendant, his agents and workmen from interfering in any manner with plot number KAMBI JUU/4X1. II.Full compensation for the loss and damages caused to the Plaintiff’s property.III.Costs of the suit.IV.Any other better relief that the honorable court may deem fit to grant.

2. The Respondent [was the defendant in the lower court] duly entered an appearance and filed a statement of defense and counterclaim dated the 23rd November 2007. Vide the counterclaim under a reference, the respondent sought the following orders:I.A permanent injunction restraining the plaintiff by himself, his agents, servants, and or heirs from interfering with the defendant's plot 60 together with the access road thereof.II.Costs of the Counterclaim.

3. The suit under reference was subsequently transferred to Isiolo Chief Magistrates’ courts and same was re-numbered as CMC ELC 86 of 2018.

4. Subsequently, the suit was heard and disposed of vide judgment rendered on the 15th of May 2024 whereupon the learned Chief Magistrate found that the Appellant's suit was devoid of merit. To this end, the learned chief magistrate proceeded to and dismissed the appellant's suit with costs.

5. On the contrary, the learned Chief Magistrate found and held that the respondent had duly proved his counterclaim and, in this regard, the Chief Magistrate proceeded to and granted the reliefs sought at the foot of the counterclaim. Instructively, the learned Chief Magistrate decreed an order of permanent injunction restraining the appellant from inter alia interfering with the defendant’s plot number 60 together with the access road thereof.

6. Aggrieved by the judgement and decree of the learned Chief Magistrate, the appellant herein approached this court vide Memorandum of Appeal dated the 29th of May 2024 and wherein the appellant has highlighted the following grounds of appeal:a.The learned trial magistrate misdirected herself and erred in law by framing only one issue for determination that was in favor of the Respondent and totally ignored the Appellant’s case and all the issues raised by the Appellant.b.The learned trial magistrate erred in law and grossly misdirected herself in holding that the Appellant has failed to prove his case to the required standard, whereas there was sufficient evidence in support of the Appellant’s case.c.The learned trial magistrate erred in law and in fact by overlocking material facts placed before her by the Appellant.d.The learned magistrate erred in law and in fact by failing to consider and evaluate, in sufficient manner, the evidence of the Appellant.e.The learned trial magistrate erred in finding that the Respondent had proved his counter-claim to the standards required, whereas there was no evidence to support his case.f.The learned trial magistrate erred in law and fact in failing to find that there was no access road of 4 meters that connected the Respondent to the main road and that the Respondent had a clear access to his plot through another existing road.g.The learned trial magistrate erred in relying on documents which were not authenticated, not official and thereby fell in great error.h.The whole judgement of the learned trial magistrate is against the weight of evidence.

7. The instant appeal came up for directions on the 22nd of January 2025; whereupon the advocate for the parties confirmed that same had duly complied with the requisite directions, and particularly the filing of the record of appeal. Furthermore, it was confirmed that the record of appeal was complete. To this end, the advocates covenanted that the appeal was ready for hearing.

8. Arising from the foregoing, the court proceeded to and issued directions pertaining to the hearing and disposal of the appeal. In particular, the court directed that the appeal shall be canvassed by way of written submission to be filed and exchanged by the parties. Moreover, the court also circumscribed the timeline[s] for the filing of submissions.

9. Suffice it to state that the advocates for the respective parties duly complied and filed their respective written submissions. For good measure, the two [2] sets of written submissions filed by and on behalf of the parties, form part of the record.

10. The Appellant herein adopted the grounds of appeal and thereafter highlighted three [3] salient issues, namely; that the learned trial magistrate failed to properly appraise the totality of the evidence that was tendered by the appellant and thus arrived at an erroneous conclusion; the learned trial magistrate misconceived and misapprehended the incidence of burden and standard of proof; and the learned trial magistrate erred in relying on documents which were not authenticated in arriving at and finding that the respondent had duly proved his counterclaim.

11. The Respondent on his part raised and highlighted two [2] salient issues namely; that the appellant herein failed to discharge the burden of proof cast upon him and thus the learned trial magistrate correctly dismissed the appellant’s suit; and that the respondent duly produced before the trial court sufficient and credible material demonstrating that the appellant had indeed encroached onto and interfered with the 4-meter road of access. To this end, the respondent imploded the court to find and hold that the appeal before the court is devoid of merit[s].

12. Having reviewed and appraised the pleadings that were filed by the parties before the subordinate courts; having perused the record of appeal; having considered the evidence[both oral and documentary] and having considered the written submissions filed on behalf of the parties, I come to the conclusion that the determination of the instant appeal turns on two [2] key issues, namely; whether the appellant duly proved his case before the trial court; and whether the respondent proved the claims at the foot of the counterclaim or otherwise.

13. Before venturing to interrogate and address the pertinent issues that have been highlighted in the preceding paragraph[s], it is imperative to state and observe that this being a first appeal, this court is tasked with the mandate and jurisdiction to undertake exhaustive review, scrutiny, appraisal and analysis of the entirety of the evidence that was placed before the trial court and thereafter to arrive at an independent conclusion.

14. Suffice it to state that the court is not bound by the factual findings and conclusions that were arrived at by the trial court. For good measure, this court is at liberty to depart from the factual findings and conclusions arrived at by the trial court, where it is shown that the conclusions of the trial court were arrived at on the basis of no evidence; based on a misapprehension of the evidence tendered; perverse to the evidence on record; or better still, where it is demonstrably shown that the trial court has committed an error of principle, which vitiates the judgment.

15. The jurisdictional remit of the first appellate court while entertaining and adjudicating upon an appeal [first Appeal] has been the subject of various court decisions. Recently, the Court of Appeal in the case of Kenya Urban Roads Authority & another v Belgo Holdings Limited (Civil Appeal E011 of 2021) [2025] KECA 764 (KLR) (9 May 2025) (Judgment) expounded on the jurisdiction thus:“37. 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 demeanor of witnesses.

In a nutshell, a first appellate court must proceed with caution in deciding whether 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 judgement. This position is anchored in section 78 of the Civil Procedure Act, which requires a first appellate court to re-evaluate, reassess and reanalyze 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 Appeal are 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 circumstances 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 judgement 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.”

16. Bearing in mind the dicta captured and highlighted by the Court of Appeal in the decision [supra], I am now disposed to revert to and consider the thematic issues, which had been highlighted elsewhere herein before. Suffice it to state that I shall address the issues sequentially.

17. Regarding the first issue, namely; whether the appellant duly proved his case before the trial court, it is imperative to state and observe that it is the appellant who approached the trial court contending that the respondent herein had interfered with his [appellant’s] property, namely; plot number KAMBI JUU/4X1. Furthermore, it is the appellant who on the basis of the alleged interference, sought to procure an order of permanent injunction to restrain the respondent from continuing with the alleged interference.

18. Additionally, it is worth recalling that the appellant also contended that the respondent had demolished a house standing on the suit property and uprooted and damaged the perimeter fence [sic] made of barbed wire. Moreover, the appellant had also posited that the respondent had damaged fencing posts.

19. Suffice it to state that having made the foregoing allegations, it behooved the appellant to tender and place before the trial court plausible, cogent, and credible evidence to demonstrate the impugned allegations. Instructively, one would have expected the appellant to tender and produce before the court a survey report demonstrating the extent of his land and by extension capturing the portion [if any] encroached upon by the respondent.

20. Pertinently where a person, the appellant not excepted, raises the plea of encroachment and, or interference, such a plea can only be proved by producing before the court a survey report prepared by a qualified and licensed surveyor. Notably it is only when a survey report is tendered and produced that the court can be able to discern encroachment [if any]. Absent a surveyor’s report, then the contended encroachment and or interference remains speculative or hypothetical.

21. Nevertheless, it is worth recalling and reiterating that proof of a case, the one before the chief magistrate not excepted, is dependent on conventional evidence and not speculation, imagination or cosmetic hypothesis. Furthermore, the person chargeable with the primary duty of laying the facts before the court is the claimant. [See the provisions of sections 107, 108, and 109 of the Evidence, chapter 80 laws of Kenya].

22. The position that the burden of proof lies on the shoulder of the claimant and in this case the appellant, has been elaborated in a plethora of decisions. In the case of Agnes Nyambura Munga (suing as the Executrix of the Estate of the late William Earl Nelson) v Lita Violet Shepard (sued in her capacity as the Executrix of the of the Late Bryan Walter Shepard) [2018] eKLR, the Court of appeal expounded on section[s] 107 and 109 of the Evidence Act as hereunder;“The standard of proof is on a balance of probabilities which Lord Denning in the case of Miller vs Minister of Pensions (1947) explained as follows:-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: „We think it more probable than not?, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties? explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”

23. Furthermore, the law as appertains to the burden of proof was also aptly expounded by the Court of Appeal in the case of Daniel Toroitich Arap Moi vs Mwangi Stephen Mureithi [2014 eKLR] where the court stated that;“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.”

24. The Supreme Court of Kenya [ the apex court] has also expounded on the import and legal implications of the burden and standard of proof. In the case of Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] KESC 66 (KLR) the court stated as hereunder;49. Section 108 of the Evidence Act 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 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, 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.

25. It is instructive to underscore that the burden of proving the alleged interference with the appellant property [ if any] laid on the shoulders of the appellant. Suffice it to state that the appellant was duty-bound to tender and place before the court credible evidence.

26. Did the appellant tender and produce any scintilla or iota of evidence to that effect? Sadly, the appellant did not tender any such evidence. Furthermore, it is not lost on this court that the appellant’s case in the Lower Court was predicated on two [2] witnesses namely himself and Esther Nkuene Murimi, who testified as PW2. For good measure, there was no surveyor who was called by the appellant to demonstrate the encroachment, if any.

27. On the contrary, evidence abound to the effect that the locus in quo [ suit property] was indeed visited by the court, in the presence of the advocates for the parties as well as the County Physical Planner, Isiolo; and the County Surveyor- Isiolo, respectively. To this end, it is worthy to take cognizance of the proceedings of the court taken at the locus in quo on the 15th of February 2011.

28. Other than the question of [sic] interference with the appellant’s land, the appellant had also contended that the respondent had demolished his [appellant’s] house that was under construction. To this end, the appellant tendered and produced before the court various photographs in an endeavor to demonstrate the claim pertaining to demolition of the alleged house. [See pages 128, 129, and 130 ff the record of appeal].

29. Nevertheless, it is important to highlight and underscore that the photographs which were tendered and produced before the court were not accompanied with the requisite electronic certificate in line with sections 106B of the Evidence Act Chapter 80 Laws of Kenya.

30. Absent the electronic certificate, the photographs [pictorial evidence] are devoid of probative value.

31. To buttress the foregoing legal position, it suffices to reference the decision of the Court of Appeal in the case of County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] eKLR where the court discussed the importance of electronic certificate.

32. For coherence, the court stated as hereunder;1. Section 106B of the Evidence Act states that electronic evidence of a computer recording or output is admissible in evidence as an original document “if the conditions mentioned in this section are satisfied in relation to the information and computer.”1. In our view, this is a mandatory requirement which was enacted for good reason. The court should not admit into evidence or rely on manipulated (and we all know this is possible) electronic evidence or record hence the stringent conditions in sub-section 106B(2) of that Act to vouchsafe the authenticity and integrity of the electronic record sought to be produced. For ease of reference, we wish to reproduce Section 106B of the Evidence Act in its entirety:

“106B (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible.(2)The conditions mentioned in subsection (1), in respect of a computer output, are the following—(a)the computer output containing the information was produced by the computer during the period over which the computer was used to store or process information for any activities regularly carried out over that period by a person having lawful control over the use of the computer;(b)during the said period, information of the kind contained in electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;(c)throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its content; and(d)the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.(3)Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in paragraph (a) of sub section (2) was regularly performed by computers, whether—(a)by combination of computers operating in succession over that period; or(b)by different computers operating in succession over that period; or(c)in any manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,then all computers used for that purpose during that period shall be treated for the purposes of this section to constitute a single computer and references in this sections to a computer shall be construed accordingly.(4)In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following—(a)identifying the electronic record containing the statement and describing the manner in which it was produced;(b)giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;(c)dealing with any matters to which conditions mentioned in sub-section (2) relate; and(d)purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate), shall be evidence of any matter stated in the certificate and for the purpose of this subsection it shall be sufficient for a matter to be stated to be the best of the knowledge of the person stating it.(5)For the purpose of this section, information is supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of an appropriate equipment whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purpose of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities.” 1. In relation to this case, the relevant conditions in that section are (a) if the computer output was recorded by a person having lawful control over the computer used; (b) if the output was recorded in the ordinary course of that person’s activities using a computer or some other electronic devise and fed into a computer that was properly operating throughout the material period; and (c) if that person gives a certificate that to the best of his knowledge, the output is an electronic record of the information it contains and describes the manner in which it was produced.1. The Evidence Act does not provide the format the certificate required under sub-section 106B(2) thereof should take. The certificate can therefore take any form including averments in the affidavit of the recorder.

33. In the absence of the electronic certificate and coupled with the fact that the impugned photographs did not capture the date when the same were [sic] taken, I conclude that the appellant did not prove his claim as pertains to sic the alleged demolition of house under construction on his property.

34. Moreover, it is not lost on the court that the appellant also claimed compensation arising from the loss and damages occasioned to his property. It is imperative to underscore that the loss, if any, would be quantifiable and ascertainable from the onset.

35. To this end, it then means that the appellant was obliged to quantify the loss, plead and particularize same; and thereafter, strictly prove the loss in accordance with the law. [see the court of appeal decision in Capital Fish Limited versus Kenya Power and Lighting Company Limited [2016] eKLR] [See also the Court of Appeal decision in Superior Homes (Kenya) PLC v Water Resources Authority & 9 others (Civil Appeal E330 of 2020) [2024] KECA 1102 (KLR) (19 August 2024)].

36. I am afraid that the Appellant did not prove his case before the trial court. For the umpteenth time, I beg to reiterate that it is not enough for the litigant, the appellant not excepted, to throw omnibus allegations on the face of court and thereafter imagine that a court of law would walk a positive and favorable judgment in their favor.

37. It is a firmly settled legal principle that he/she who asserts must prove. Furthermore, proof must be predicated and based on plausible and credible evidence. [See the provisions of Section 3[1] of the Evidence Act, Chapter 80, Laws of Kenya].

38. Regarding the second issue, namely, whether the respondent proved the claim at the foot of the counterclaim or otherwise, it is worthy to recall that the respondent contended that there was a 4 metre[s] access road running on the side of the appellant’s property and linking the respondent’s property to the water intake road. Furthermore, the respondent posited that the road of access in question had been in place long before the appellant bought the suit property from his predecessor.

39. The fact that the road of access was in existence long before the appellant bought the suit property was fortified by the evidence of DW2 who stated thus;“There was a road from the mission towards the water intake area. I know of another road to Waso primary school. There was an access road to the defendant’s plot. It was only serving the defendant. The defendant has been on his plot for long.”

40. Other than the testimony of the respondent and DW2, who confirmed that the road of access was in use, there is also the evidence of DW4, DW5, and DW6 respectively, who visited the locus in quo and ascertained the fact that the road of access was indeed in existence.

41. Moreover, it is imperative to recall that DW4, himself, a government surveyor, visited the locus in quo and prepared a report dated the 14th of April 2011. Instructively, the report was duly produced and marked as Exhibit D7. In addition, DW4 confirmed that there was a 4 m road and that the Plaintiff has encroached on the road.

42. Additionally, it is also imperative to recall that the locus in quo was visited by the court in the presence of the advocates for the parties; the parties; and designated government officers, namely, the district physical planner and the deputy surveyor. [See the proceedings of 10th March 2011 and 15th February 2011. ]

43. From the proceedings which were taken at the locus in quo, it was confirmed that indeed there existed a 4 M access road. Furthermore, it was also established that the Appellant had indeed encroached onto the 4M road of access.

44. For ease of appreciation, it is imperative to reproduce the observations made by the County Physical Planner while at the locus in quo.

45. Same stated as hereunder;“From the record available, the defendant’s plot number 60 is right behind the plaintiffs. the parcels in this area are not yet planned as they had been surveyed by one Ibrahim, a private surveyor, who had been contracted by Isiolo County Council. The area is therefore yet to be properly surveyed. However, the records and the maps available with the physical planner reflects that the plaintiff’s parcel number 4X1 is supposed to be 10 M wide, that is, outside the dispute side facing the road. Measurements taken on site, however, showed that the plaintiff has already constructed a permanent structure covering some 14. 2 M showing that he exceeded by some 4. 2 M”

46. There is no gainsaying that the Appellant herein had indeed encroached upon and blocked the road of access. To my mind, the testimony of DW4, DW5, and DW6 as well as the documentary report tendered, confirm the encroachment complained of.

47. Like the learned trial magistrate, I conclude that the respondent herein tendered and placed before the court plausible evidence to vindicate his claims. Suffice it to underscore that the respondent discharged both evidential and legal burden as pertains to his complaints. [see Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Aukot & another (Interested Parties); Attorney General & another (Amicus Curiae) (Presidential Election Petition 1 of 2017) [2017] KESC 42 (KLR) (Election Petitions) (20 September 2017) (Judgment) at Paragraphs 132 and 133 thereof].

48. Flowing from the foregoing analysis and considering the legal principles that underpin the scope of the jurisdictional remits of the first appellate court, I conclude that the learned Chief Magistrate correctly appraised and apprehended the evidence tendered before her. Furthermore, the learned Chief Magistrate duly interrogated the evidence and thereafter applied the correct legal principles in finding and holding that the appellant had not proved his case.

49. I am afraid that the complains mounted by and on behalf of the appellant are not only misconceived but legally unattainable. Moreover, it was the duty of the appellant to prove his case. However, same failed to discharge the statutory burden/ onus.

FINAL DISPOSITION: 50. For the reasons which have been highlighted in the body of the Judgment, it must have become crystal clear, nay, apparent that the appeal beforehand is devoid of merit[s]. In this regard, the appeal courts dismissal.

51. Consequently, and in the premises, the final orders that commend themselves to the court are as hereunder;I.The Appeal be and is hereby dismissed.II.Cost of the appeal be and are hereby awarded to the Respondent.III.The Judgment of the subordinate court [Chief Magistrate] be and is hereby affirmed.

52. It is so ordered.

DATED, SIGNED AND DELIVERED AT ISIOLO THIS5THDAY OF JUNE 2025. OGUTTU MBOYA, FCIArb, CPM [MTI-EA].JUDGE.In the presence of:Mutuma/Mukami – Court Assistant.Mr. Murango Mwenda for the Appellant.Mr. Muthomi for the Respondents.