Njuguna v Gakere & another (Environment and Land Appeal E032 of 2025) [2026] KEELC 3199 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial magistrate arrived at an erroneous decision as a result of failing to call the directors of Githunguri Constituency Ranching Company Limited
- 2.Whether the trial magistrate overly relied on the evidence of the Respondents
- 3.Whether the appeal should be allowed
Key legal issues
#Whether failure to call the officials of Githunguri Constituency Ranching Company Limited rendered the trial decision erroneous
No; the burden was on the Appellant to prove ownership and she ought to have called the Chairman to produce and explain the documents, but failed to do so
The Appellant instituted the suit and thus bore the burden under Section 108 of the Evidence Act. Her claim rested on documents issued by the Ranching Company, which required the Company's evidence to be explained and proved. The court accepted the trial magistrate's finding that failure to call the Chairman weakened her case, and no error in the trial decision arose from that omission.
Whether the trial magistrate overly relied on the Respondents' evidence
No; the trial magistrate carefully considered the evidence of both parties and correctly found the Appellant had not proved her case on a balance of probabilities
On the record, neither party held a title deed. The Respondent produced a certificate number 2090 dated 19th May 1989 and proved residence on the property since 1989, while the Appellant's late husband, though aware of that occupation, never moved to evict. The appellate court found the trial judgment properly weighed both sides' evidence and saw no basis to interfere.
Whether the appeal should be allowed
Dismissed; no reason to interfere with the judgment of the lower court
Applying the first-appeal principles in Selle v Associated Motor Boat Company and Ng'ati Farmers, the court re-evaluated the record, found the trial magistrate's findings supported by the evidence, and concluded the Appellant failed to discharge the burden of proof on a balance of probabilities. The appeal therefore failed with costs to the Respondent.
Legal principles established
#- A first appellate court must re-evaluate and re-assess the evidence and draw its own conclusions, while making due allowance for not having seen or heard the witnesses
- Section 108 of the Evidence Act places the burden of proof on the person who would fail if no evidence were adduced on either side
Court orders
#- 1.The appeal is dismissed with costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Thika Magistrate's Court
- MCE&L Case No. E056 of 2019
- Jurisdiction invoked
- Section 78 of the Civil Procedure Act (first appeal; re-evaluation of evidence)
Relief refused
#Appeal against dismissal of the plaintiff's suit for permanent injunction, eviction and general damages for trespass
Appellant failed to prove her case on a balance of probabilities; she did not call the Chairman of Githunguri Constituency Ranching Company Limited to produce and explain the documents relating to the suit property
Costs
Appeal dismissed with costs to the Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, the appeal is dismissed with costs to the Respondent.
This being a first appeal section 78 of the Civil Procedure Act mandates this court to re-evaluate, re-assess and re-consider the evidence that was adduced before the trial court and arrive at its own findings.
Section 108 of the Evidence Act places the burden of proof upon the person who would fail if no evidence was adduced on either side.
Based on the foregoing evidence, the trial magistrate correctly arrived at the finding that the Appellant had failed to prove her case on a balance of probabilities.
Issues in the judgment
#Document heading/footer references 'THIKA ELCA NO. E032 OF 2025' but the appeal is from MCE&L Case No. E056 of 2019 and the clearance certificate is described as B 3053 while the plaint refers to certificate number B 3058 - an internal inconsistency in the record
Delivery date appears as 25th May 2026, later than the appeal number year 2025 and the trial judgment of 2024; possible typographical error in the year
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuguna v Gakere & another (Environment and Land Appeal E032 of 2025) [2026] KEELC 3199 (KLR)", Case Analysis (2026). Thika ELCA No. E032 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3199/eng@2026-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.