Ogutu v Opere (Environment and Land Appeal E029 of 2023) [2026] KEELC 5374 (KLR) (31 August 2026) (Judgment)

Ogutu v Opere (Environment and Land Appeal E029 of 2023) [2026] KEELC 5374 (KLR) (31 August 2026) (Judgment) Neutral citation: [2026] KEELC 5374 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Appeal E029 of 2023 EK Wabwoto, J August 31, 2026 Between Silvanus Okoth Ogutu Appellant and Pia Ogony Opere Respondent (Being an appeal from the judgment and decree of Hon. R. M. Oanda, Senior Principal Magistrate, delivered on 23rd October 2023 in Winam Senior Principal Magistrate's Court Environment and Land Case No. E021 of 2022 - Pia Ogony Opere v Silvance Okoth Ogutu & another) Judgment 1.This is a first appeal from the judgment and decree of the Senior Principal Magistrate's Court at Winam (Hon. R. M. Oanda, SPM) delivered on 23rd October 2023 in Environment and Land Case No. E021 of 2022. By that judgment the trial court found in favour of the respondent, ordered the appellant to vacate the suit property within ninety days failing which he be evicted, and directed the Land Registrar to remove a caution which the appellant had lodged against the title. 2.The parties are members of one family. The respondent, Pia Ogony Opere, is the second of the three wives of the late Joseph Ojil Oyieke. The appellant, Silvanus Okoth Ogutu, is a grandson of the said Joseph Ojil Oyieke through his late son, Musa Ogutu Ojil, who died on 16th August 1998. The appellant's mother, Benter Ogutu Ojil, died a day later, on 17th August 1998. The appellant, who was born on 10th May 1989, was then a child of about nine years. 3.The subject matter of the dispute is land parcel number Kisumu/Kasule/3847 measuring approximately 0.21 hectares, situate within Kasule Sub-Location, Kolwa West Location, Winam Division of Kisumu County (hereinafter "the suit property"). It is registered in the name of the respondent. The proceedings before the trial court (i) The pleadings 4.By a plaint dated 29th June 2022 and filed on 1st August 2022, the respondent (then plaintiff) sued the appellant (then 1st defendant) and the Kisumu East District Land Registrar (then 2nd defendant). She averred that she is the registered proprietor of the suit property; that the 1st defendant had without any reason trespassed upon the land and erected a semi-permanent house thereon without her permission and had thereafter placed a caution against the title; that her several attempts to obtain the intervention of the elders, the Chief, the Land Registrar and the Assistant County Commissioner had yielded no fruit; and that the defendants' conduct had denied her peaceful enjoyment of the property and rendered her unable to carry out her desired project. 5.She prayed for judgment against the defendants for:(a)an eviction order against the defendants;(b)an order directing the Land Registrar, Kisumu East, to undo the caution placed by the defendant; and(c)costs of the suit and interest. 6.Contemporaneously with the plaint, the respondent took out a Notice of Motion dated 29th July 2022 brought under Order 40 rules 1 and 2 of the Civil Procedure Rules, 2010 and sections 3A and 63 of the Civil Procedure Act, seeking a temporary injunction restraining the 1st defendant from trespassing upon, building on, invading, alienating, subdividing, charging or encroaching upon the suit property pending the hearing and determination of the application and of the suit. The application was certified urgent by Hon. F. M. Rashid, PM on 1st August 2022 and directed to be served for inter partes hearing. 7.The 1st defendant filed a statement of defence dated 5th September 2022 together with a replying affidavit sworn on the same date. He admitted the contents of paragraphs 3, 10 and 11 of the plaint and denied paragraphs 4, 5, 7 and 9. His case, in substance, was as follows: that the respondent is a co-wife to his late grandmother; that the suit property is the only known ancestral land of the family; that the portion which he and his brother, Wicliffe Odhiambo, occupy was the share of their late grandmother; that the respondent herself pointed out to them the portion upon which to build and that they built and have resided thereon peacefully and without complaint; that their parents having died while they were young, the respondent held the land in trust for their benefit as well; that upon their attaining majority, members of the family, led by elders and in the presence of the respondent, deliberated and agreed that they were entitled to the portion which belonged to their grandmother, and the respondent consented voluntarily; that the area Chief, after visiting the land, resolved that they be allowed to continue staying on their portion; that he lodged the caution on the advice of the Land Registrar upon learning that the respondent had embarked on selling the land without the family's consent; that he had frequently requested the respondent to subdivide and transfer their portion but she had declined; and that the family has no other parcel of land upon which to settle and it would be inhuman to evict them from their ancestral land. 8.The 2nd defendant filed a statement of defence dated 15th September 2022 through the Hon. Attorney General. It denied that the respondent was ever the registered proprietor of the suit property, averred that there is a laid-down procedure to be followed in the removal of a caution, and contended in the alternative that the plaint disclosed no reasonable cause of action against it. (ii) The evidence 9.On 12th October 2022, upon hearing the parties on the pending application, the trial court referred the matter to mediation. On 11th November 2022 the Mediator, Hon. G. C. Serem, reported that the parties had not reached a settlement and the file was returned to the trial court for further directions. 10.The hearing proceeded on 27th September 2023. Both the respondent and the appellant appeared and testified in person. The 2nd defendant neither attended the hearing nor called any evidence. 11.PW1, Pia Ogony Opere, testified that she had sold land and that after the sale her grandson, the 1st defendant, lodged a caution against the title. She had taken the purchaser to the Land Control Board and wished to subdivide the land when she came to learn of the caution. A search confirmed that the caution had been lodged by the 1st defendant, who told her that he had done so in order to compel her to give him that land and refund the purchaser. She testified that she had given them their portion and that the 1st defendant had used the land to date. She asked the court to order the removal of the caution, stating that she had no peace at home, and added: "I gave them their land and they fenced off the land I sold." 12.On cross-examination by the 1st defendant, PW1 stated that the land had belonged to her late husband, Joseph Ojil Oyieke; that he had three wives, Anna being the first, herself the second and Rhoda the third; that all the wives bore children; that the 1st defendant's father was deceased and that her husband had died before distributing the land; that her son had shown the 1st defendant his portion of the land; that the 1st defendant's father had received his mother's land, sold his portion and gone to buy land elsewhere while the 1st defendant was still young; that she did not know where the 1st defendant's grandmother was buried; that her co-wives were all deceased; that she could not tell the size of the land the 1st defendant's father had and that he had sold it before obtaining a title deed; that she "prepared the title deed as the wife"; and that the original land was parcel No. 712. She further stated that the 1st defendant's younger brother had not built and that it was the 1st defendant who had lodged the caution against her land. 13.PW1 closed the plaintiff's case without calling the witness she had listed, stating that she had not been aware that her witness was required to record a statement. 14.DW1, Silvance Okoth Ogutu, also testified. He stated that he is a carpenter residing at Nyamasaria, Kasule; that after being shown the portion they had stayed at the place; that the respondent had refused to divide the land and that the place she had given them had no proper security; that when they fenced the place she reported the matter to the Chief; that the Chief agreed that security at Nyamasaria was not good; that the respondent then said she had sold the portion of land; that the Chief said that was a different case and asked them to go home; that he went to the Land Registrar who advised him to lodge a caution; that he was asked to remove the caution within thirty days whereupon he lodged an objection; that he and the respondent were heard at the Land Registry and thereafter referred to the Chief; and that the Chief ruled that they should let him stay on the land. He prayed that the suit be dismissed and that they get their portion of land. 15.On cross-examination by the respondent, DW1 maintained that the Land Registrar had given him the go-ahead to lodge the caution in order to protect their interest, and that the deceased's land was to be shared equally. He put it to the respondent that she had not told him that she had sold the portion of land. 16.The respondent indicated that she would not file submissions. The 1st defendant indicated that he would do so. Judgment was reserved. (iii) The documentary record 17.The respondent's list of documents comprised a copy of the green card, a certificate of official search and a copy of the title deed. It is material to observe what those documents in fact show. The green card produced relates to parcel Kisumu/Kasule/712, registered on 19th April 1990 in the name of Joseph Ojil Oyieke, the title to which was closed on subdivision, the resultant parcels being indicated as Nos. 2073 and 2074. The certificate of official search dated 9th February 2021 in respect of the suit property describes it as a subdivision of plot No. 2093, of approximate area 0.21 Ha, shows the respondent as proprietor with effect from 16th June 1998 and a title deed as having issued on 16th June 1999, and records a caution registered on 9th February 2021 by the appellant, as well as a pending application by a party claiming a beneficiary interest. The title deed produced bears the date 16th June 1998. 18.No instrument of transmission, grant of letters of administration, certificate of confirmation of grant, mutation form or any other document explaining how the respondent came to be registered as proprietor of the suit property was produced. Nor was any document produced linking parcel No. 712 to parcel No. 2093 and thence to the suit property. 19.The appellant, for his part, relied upon a copy of his national identity card; a copy of the registry map sheet; the death certificate of Musa Ogutu Ojil, who died on 16th August 1998; the death certificate of Benter Ogutu Ojil, who died on 17th August 1998; the Land Registrar's notice of intention to remove a caution under section 73(2)(a) of the Land Registration Act dated 26th July 2021; his written objection to that removal dated 9th August 2021, in which he asserted a beneficiary interest as a grandson of the original owner; and summons issued under section 14(b) of the Land Registration Act dated 11th August 2021 requiring the respondent to appear before the Land Registrar on 1st September 2021 to be examined at the instance of the appellant concerning the suit property. The impugned judgment 20.The judgment of the trial court is dated and was delivered on 23rd October 2023. After reciting the pleadings and summarising the evidence in brief compass, the learned trial magistrate held that, having considered the entire evidence on record, it was clear that the suit property belongs to the plaintiff; that the 1st defendant has his own portion which he says is not in a secure place and for that reason he had encroached into the plaintiff's land; that by his pleadings the 1st defendant admits that the suit property belongs to the plaintiff; that as the registered proprietor she is entitled to all rights and privileges emanating from such registration, including peaceful and uninterrupted occupation and use of the suit property; and that the 1st defendant has no legal or moral authority in claiming land that does not belong to him, his occupation being illegal. 21.The learned trial magistrate cited section 24 of the Land Registration Act, No. 3 of 2012, and concluded that the plaintiff had proved her case to the required standard and was entitled to the orders sought. 22.The court thereupon entered judgment for the plaintiff in the following terms:1)That the 1st defendant is hereby ordered to vacate the suit property within 90 days from the date of this judgment, failure to which he shall be evicted.2)That the 2nd defendant is hereby ordered and/or directed to remove the caution lodged by the 1st defendant herein in respect to the suit property, Kisumu/Kasule/3847.3)Each party to bear its costs. 23.A decree issued out of the trial court on 1st November 2023 in those terms. 24.The record discloses that after judgment there were protracted execution and stay proceedings before the trial court. A conditional stay of execution was granted on the condition that the appellant deposit Kshs. 100,000 as security within forty-five days. That condition was not met and the stay lapsed. Applications for eviction and for reinstatement and extension of the stay followed. By a ruling delivered on 4th May 2025 the trial court granted leave to appeal and interim orders of stay for twenty-one days. The Appeal 25.Being aggrieved, the appellant lodged a memorandum of appeal dated 1st November 2023, drawn and filed by himself in person. He subsequently filed a notice of appointment of advocates dated 17th November 2023 appointing M/s Andrew Ombwayo & Co. Advocates to act for him. The record of appeal was certified and filed on 11th June 2025. 26.The memorandum of appeal raises six grounds which, paraphrased, are that the learned trial magistrate erred in law and misdirected himself by:(a)finding that the suit property belongs to the respondent alone whereas, being ancestral property, it belongs to both the respondent and the appellant;(b)finding that the portion belonging to the appellant is a different property, whereas both parties were speaking of the same suit property which they share;(c)finding that the respondent is the registered owner of the suit property, whereas that registration arose from a succession purportedly carried out by the respondent in circumstances in which the appellant's late grandfather (the respondent's late husband) and, by extension, the appellant's late father, were also beneficiaries;(d)treating the issues of inheritance and levirate unions shallowly and holding that the latter did not exist, thereby arriving at a wrong finding to the detriment of the appellant;(e)failing to record the evidence adduced, recording totally different matters, adding his own evidence and delivering judgment, thereby giving the appearance of favouritism, in a case where execution meant the eviction of the appellant who has been in occupation for thirty-four years following the death of his parents, who were themselves in occupation together with the appellant's grandparents; and(f)delivering a judgment which is a recipe for illegalities and which is unreasonable, oppressive, prejudicial to the appellant, capricious and a travesty of justice. 27.The appellant prays that the appeal be allowed, that the judgment of the trial court be set aside, and that the respondent's suit be dismissed with costs. Directions and submissions 28.The appeal was canvassed by way of written submissions and each party was allocated time within which to file and serve their respective submissions. 29.Only the respondent complied with those directions. Her written submissions are dated 25th May 2026 and were drawn and filed by M/s Peres Odoyo & Company Advocates. The appellant filed no submissions at all. Although he was granted time within which to do so, none were filed by him or on his behalf, no extension of that time was sought, and no explanation for the default has been offered to the court. 30.The respondent framed four issues for determination, namely: whether the learned trial magistrate erred in law or in fact in declaring her the lawful proprietor of the suit property; whether the appellant proved the existence of a customary trust over the suit property; whether the caution lodged by the appellant was wrongful and liable to removal; and whether the appellant had capacity to sue. 31.On the first issue, the respondent submits that she produced before the trial court the title deed, a certificate of official search and the green card relating to the suit property, all of which confirmed that it is registered in her name, and that the appellant did not challenge the authenticity, validity or admissibility of those documents. She relies upon sections 24, 25 and 26 of the Land Registration Act, contending that section 24(a) vests absolute ownership in the registered proprietor, that section 25 protects the rights of the proprietor from defeat except as provided in the Act, and that section 26 renders the certificate of title prima facie evidence that the person named is the absolute and indefeasible owner. She cites Henry Muthee Kathurima v Commissioner of Lands & another [2015] eKLR for the proposition that title is indefeasible unless acquired through fraud, misrepresentation, illegality or procedural impropriety attributable to the proprietor, and Onyango v Chief Land Registrar-Kisumu & 5 others [2025] KEELC 266 (KLR) for the proposition that indefeasibility under section 26 is subject to Article 40(6) of the Constitution and is inapplicable to the extent that title was unlawfully acquired. Her submission is that the appellant neither pleaded nor proved any fraud, illegality, procedural impropriety or misrepresentation in her acquisition of the suit property; that the evidence on record demonstrates that she lawfully acquired it through succession from the estate of her late husband; and that the trial court correctly found her to be the lawful and indefeasible proprietor. 32.On the second issue, the respondent accepts that section 28(b) of the Land Registration Act recognises customary trusts as overriding interests, but submits that the burden of proving such a trust lies squarely upon the party alleging it. She relies upon Alice Wairimu Macharia v Kirigo Philip Macharia [2019] eKLR, in which it was held that a claimant asserting a customary trust must establish that the land in question was ancestral or clan land, that during adjudication and consolidation one member of the family was designated to hold the land on behalf of others, and that the registered proprietor was registered as trustee for the family; upon Njenga Chogera v Maria Wanjira Kimani & 2 others [2005] eKLR and Muthuita v Muthuita [1982-88] 1 KLR 42, to the effect that customary trust is a question of fact which must be proved through cogent evidence; upon Isack Kieba M'Inanga v Isaaya Theuri M'Lintari & another, SC Petition No. 10 of 2015, for the proposition that not every claim relating to family land amounts to a customary trust and that the intention of the parties and the nature of the holding are critical considerations; and upon Peter Ndungu Njenga v Sophia Watiri Ndungu [2000] eKLR, for the proposition that a court will not imply a trust save in order to give effect to the intention of the parties, which intention must be clearly determined before a trust is implied. She submits that the appellant adduced no evidence that the suit property was ancestral clan land, that she was registered as trustee on behalf of the family, that there existed any common intention to create a trust, or of the circumstances in which the alleged trust arose; that the evidence before the trial court established that the appellant's father had already received his share from the estate of the deceased and had disposed of it before acquiring land elsewhere; and that the appellant cannot lay claim over her lawful share merely on account of the familial relationship. 33.On the third issue, the respondent submits that while section 71(1) of the Land Registration Act permits a person claiming a registrable interest in land to lodge a caution, the burden rests upon the cautioner to justify the continued existence of the caution. She relies upon Andrea Gishore Onditi v Andrew Mogusu Kereu & 2 others [2013] eKLR, where it was held that the burden lies upon the cautioner to demonstrate sufficient reasons why the caution should not be removed; upon Kiptuya Ngerech Too v Peris Wangui Macharia & another [2018] KEHC 5682 (KLR), where it was observed that the purpose of a caution is to preserve a legally recognisable interest in land pending the determination of rights; and upon Pryson Makokha Tabata v Charles Wekesa Wanyama [2014] eKLR, for the proposition that a caution ought not to remain in place where it unjustifiably prejudices the registered proprietor. She submits that the appellant failed to establish any recognisable legal or equitable interest capable of protection by way of caution; that the caution unfairly deprived her of her proprietary rights, including the right freely to deal with and dispose of her property; and that the trial court properly ordered its removal. 34.On the fourth issue, which is raised for the first time on appeal, the respondent submits that although the appellant claimed to be a grandson of the initial owner of the suit property, no proof of that relationship was produced, and that he never produced a limited grant ad litem to demonstrate that he had capacity to sue on behalf of his late father or on his own behalf. In the absence of capacity, she submits, the appeal ought to be dismissed with costs. 35.In conclusion the respondent submits that the appeal is devoid of merit both in fact and in law, that the learned trial magistrate properly evaluated the evidence and correctly applied the law, and she prays that the appeal be dismissed with costs. 36.That notwithstanding, the appellant's default does not relieve this court of its mandate to determine the appeal on its merits. Written submissions are not evidence. They are an aid to the court, being the party's own exposition of the law and of the inferences which the party invites the court to draw from the material already on the record, and they can neither add to nor subtract from that material, See Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR. It follows that where a party who has been granted time to file submissions fails to do so, the court does not for that reason dismiss his appeal or treat it as abandoned. It proceeds to determine the appeal upon the record, the memorandum of appeal and such submissions as have been filed. That duty is the more compelling on a first appeal, where this court is under an independent obligation to re-evaluate the whole of the evidence and to arrive at its own conclusions, and it accords with Article 159(2)(d) of the Constitution, which enjoins the court to administer justice without undue regard to procedural technicalities. I have therefore considered every ground set out in the memorandum of appeal, unargued though those grounds are, and I have taken particular care to test each of the contentions advanced by the respondent against the record rather than to accept any of them merely because it stands unanswered. Analysis and determination 37.I have considered the record of appeal in its entirety, the memorandum of appeal, the pleadings, the certified typed proceedings, the documentary exhibits, the impugned judgment and the decree, together with the respondent's written submissions and the authorities cited therein, and the applicable law. 38.This being a first appeal, the duty of this court is to reconsider and re-evaluate the evidence tendered before the trial court, subject it to a fresh and exhaustive scrutiny, and arrive at its own independent conclusions, bearing in mind always that it neither saw nor heard the witnesses and making due allowance in that respect. 39.The principle was stated in Selle & another v Associated Motor Boat Company Limited & others [1968] EA 123 and has been consistently applied. In Peters v Sunday Post Limited [1958] EA 424 the court cautioned that an appellate court will not lightly differ from the trial court on a finding of fact which depends upon the demeanour and credibility of witnesses, and will interfere only where it is satisfied that the trial court plainly went wrong. In Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR the Court of Appeal reiterated that the first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld. 40.Where, however, the complaint is that the trial court failed to consider a defence that was pleaded, misapprehended the pleadings, or made findings not supported by any evidence, an appellate court is not only entitled but is obliged to intervene. Such matters do not turn on demeanour. 41.Having considered the grounds of appeal and the record, the following issues fall for determination:i.whether the appellant lacked the capacity to prosecute this appeal and to resist the respondent's claim, for want of a grant of representation;ii.whether the respondent's registration as proprietor of the suit property was established and, if so, what the legal effect of that registration is as against the appellant;iii.whether the appellant raised, and the trial court failed to determine, a defence of an overriding interest in the nature of a customary trust and/or an equity arising from acquiescence, and whether any such interest was proved;iv.whether the respondent proved trespass so as to warrant the order of eviction;v.whether the order directing the removal of the caution was properly made;vi.whether the trial was vitiated by the alleged failure to record evidence and by the appearance of favouritism; andvii.what reliefs and orders ought to issue, and who should bear the costs. 42.The respondent's fourth issue is in substance a preliminary objection and I deal with it first. It is said that the appellant produced no proof of his relationship to the original owner of the suit property, and that he never produced a limited grant ad litem entitling him to sue on behalf of his late father or on his own behalf, and that the appeal must fail on that ground alone. 43.With respect, the submission conflates two distinct things. The appellant did not sue anybody. He was sued. A defendant requires no grant of representation in order to defend proceedings brought against him in his own name, and none in order to resist an order for his own eviction from land upon which he resides. The requirement of a grant arises where a party seeks to intermeddle in the estate of a deceased person, or to prosecute or defend a claim on behalf of such an estate. The claim which the appellant was called upon to answer was a claim against him personally, founded upon his personal occupation of the land, and the interest he asserts by way of defence is asserted as his own, as a grandson of the original registered owner and as a member of the house of his late grandmother. It is not a claim brought on behalf of the estate of his late father. 44.The position would be different if the appellant were seeking affirmative relief - a declaration of trust, an order of subdivision, or the transfer to him of a share in the estate of the late Joseph Ojil Oyieke or of the late Musa Ogutu Ojil. Such relief could not be granted to a claimant without capacity and without the joinder of the personal representatives of those estates. No such relief was sought by way of counterclaim in the trial court, none is sought in this appeal, and none is granted by this judgment. To that limited extent the respondent's submission is well made, and it reinforces what is said later in this judgment as to the proceedings which are now required and the parties who must be joined in them. 45.As to proof of the relationship, the point was never pleaded, no objection was taken to the appellant's standing at the trial, and the respondent's own sworn evidence established the relationship she now invites this court to doubt. She testified that the appellant is her grandson, that his father was deceased, that her late husband had three wives all of whom bore children, and that her son had shown the appellant his portion of the land. A party cannot on appeal ask the court to disbelieve a fact which her own testimony placed beyond controversy. A point going to capacity ought in any event to be taken at the earliest opportunity so that the other side may meet it by evidence; taken for the first time in written submissions on appeal, it comes far too late. The preliminary point accordingly fails. Registration and its legal effect 46.The fact of the respondent's registration as proprietor of the suit property was established by the certificate of official search dated 9th February 2021 and by the copy of the title deed produced. Ground 3 of the memorandum of appeal, insofar as it disputes the fact of registration, therefore fails. The 2nd defendant's bare pleaded denial that the respondent was ever registered was neither pursued nor supported by any evidence, that party having elected not to participate at the hearing. 47.The legal effect of registration is, however, a different question altogether, and it is here that, with respect, the trial court fell into error. The learned trial magistrate invoked section 24 of the Land Registration Act and stopped there. Section 24(a) provides that the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto. But that section does not stand alone. It is expressly qualified by section 25(2) and by section 28 of the same Act. 48.Section 25 provides:25.(1)The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject - (a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and (b) to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register.(2)Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject as a trustee. 49.Section 28, in turn, provides that unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register, and paragraph (b) thereof expressly lists "trusts including customary trusts". 50.It follows that a certificate of title is not, in every case and against every claimant, the end of the inquiry. Where a party in occupation asserts a trust, and in particular a customary trust, the court is bound to inquire into and determine that assertion. A registered proprietor who holds as trustee is not relieved by registration of the duties of a trustee. The trial court's reliance on section 24 in isolation, without any reference to sections 25(2) and 28(b), was a misdirection in law. 51.I have considered the authorities relied upon by the respondent on this issue. There is no quarrel with the propositions for which Henry Muthee Kathurima v Commissioner of Lands & another [2015] eKLR and Onyango v Chief Land Registrar-Kisumu & 5 others [2025] KEELC 266 (KLR) are cited. Both decisions are, however, addressed to a different question, namely the circumstances in which a title may be impeached on the ground that it was unlawfully acquired. The appellant does not plead fraud, and this judgment makes no finding of fraud, illegality, misrepresentation or procedural impropriety against the respondent. The question which arises here is not whether the respondent's title is liable to be cancelled. It is whether a registered proprietor who holds subject to an overriding interest may, without more, evict a person entitled to the benefit of that interest. That question is answered not by section 26 but by sections 25(2) and 28 of the Act, to which the respondent's submissions make no reference at all. 52.For the same reason the submission that the appellant “neither pleaded nor proved any fraud, illegality, procedural impropriety or misrepresentation” does not conclude the matter. A trust does not impeach a title; it qualifies the manner in which the title is held. Section 25(2) makes the point expressly: nothing in that section relieves a proprietor of any duty or obligation to which the person is subject as a trustee. Nor can I accept, as a matter of record, the related submission that the respondent “lawfully acquired the suit property through succession from the estate of her late husband”. That assertion assumes what has never been established. No grant of representation, certificate of confirmation of grant or instrument of transmission was produced at the trial, and a submission from the bar is not a substitute for evidence. 53.Compounding that misdirection, the learned trial magistrate held that "by his pleadings, the 1st defendant admits that the suit property belongs to the plaintiff". With respect, that is a misreading of the defence. What paragraph 3 of the statement of defence admitted was paragraph 3 of the plaint, namely the averment that the plaintiff is the registered proprietor of parcel Kisumu/Kasule/3847. That admission of registration was immediately qualified by paragraphs 5 to 14 of the same defence, which asserted in terms that the suit property is the only known ancestral land of the family, that the portion occupied by the appellant and his brother was the share of their late grandmother, that the respondent held the land in trust for their benefit, and that she had refused to subdivide and transfer their portion. An admission of registration is not an admission of sole beneficial ownership. The trial court therefore decided the central question of the case upon an admission that had never been made. 54.There is a further matter. The appellant's pleaded case, echoed in ground 3 of the memorandum of appeal, was that the respondent's registration arose from a succession to the estate of the late Joseph Ojil Oyieke in which other houses had an interest. The respondent's own sworn evidence went a considerable way towards confirming the factual premise of that challenge. She testified that the land had belonged to her late husband; that he had three wives, all of whom bore children; that he died before distributing the land; and that she "prepared the title deed as the wife". No grant of representation, certificate of confirmation of grant or instrument of transmission was produced. Nor was any document produced tracing parcel No. 712, registered in the name of the late Joseph Ojil Oyieke, through the intermediate subdivisions to the suit property. In those circumstances the register could not properly be treated as conclusive of the beneficial entitlements of the several houses of the deceased without any inquiry whatsoever. Customary trust and equity: a defence never determined 55.The defence squarely pleaded a customary trust, though not in those precise words. The trial court did not address it at all. 56.The Supreme Court in Isack M'Inanga Kiebia v Isaaya Theuri M'Lintari & another [2018] eKLR settled the criteria for establishing a customary trust. The elements identified include that the land in question was before registration family, clan or group land; that the claimant belongs to such family, clan or group; that the relationship between the claimant and the registered proprietor is such as would attract the concept of trust; that the claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstance; and that the claim is directed against the registered proprietor who is a member of the family, clan or group. The Court emphasised that each case must be determined on its own facts and that a customary trust, once established, falls within the ambit of the overriding interests then found in section 28 of the Land Registration Act. 57.Measured against those criteria, the appellant's defence was far from fanciful. On the respondent's own evidence: the suit property derives from land which belonged to the late Joseph Ojil Oyieke; he had three houses; he died before distributing the land; the appellant is a grandson of the deceased through the house of a co-wife; the appellant's father predeceased the distribution; the appellant was a minor at the time of his parents' deaths in August 1998, which is also the very year in which the respondent obtained registration; and the appellant and his brother have been in actual occupation of a portion of the land, upon which they have built and lived. Those facts, taken together, called for a considered determination of whether the respondent held the suit property, or a portion of it, upon a customary trust for the several houses of the deceased. That determination was never made. 58.The respondent's answer to the claim was that the appellant's father had already received his mother's share, sold it and purchased land elsewhere. That was, however, a bare assertion. No sale agreement, no consent of the Land Control Board, no title, search or identification of the alleged alternative parcel and no evidence of its location or extent was placed before the trial court. The respondent herself conceded that she could not tell the size of the land the appellant's father had, and that it was sold before a title deed had issued. The appellant denied any knowledge of such a sale. Under sections 107, 108 and 109 of the Evidence Act, he who alleges must prove. The assertion of a prior satisfied share was not proved, and the trial court was not entitled to treat it as established. 59.The respondent submits, and I accept without reservation, that the burden of proving a customary trust lies upon the party who alleges it, and that a customary trust is a question of fact which must be established by cogent evidence: See the cases of Njenga Chogera v Maria Wanjira Kimani & 2 others [2005] eKLR; Muthuita v Muthuita [1982-88] 1 KLR 42; Peter Ndungu Njenga v Sophia Watiri Ndungu [2000] eKLR. I would go further. On the material placed before the trial court the appellant did not discharge that burden. He led no evidence of the customary law of the community relied upon; no evidence of how the land was held before first registration; no evidence of any designation of the respondent, at adjudication or at all, as a holder on behalf of the several houses; and no evidence of the terms upon which registration was effected. Had the trial court addressed the defence and rejected it for want of proof, that conclusion would have been difficult to fault. 60.In so far as the respondent relies upon Alice Wairimu Macharia v Kirigo Philip Macharia [2019] eKLR for the proposition that a claimant must in every case establish designation during adjudication and consolidation and registration expressly as trustee, that formulation derives from the earlier line of authority and must now be read subject to Isack M'Inanga Kiebia, in which the Supreme Court held that the categories of customary trust are not closed and that each case falls to be determined on its own merits and on the quality of the evidence. The elements are indicia, not a statutory checklist. Nothing turns on the distinction in this appeal, however, because the appellant led no evidence directed to either formulation. 61.Two consequences follow and they must be kept distinct. The first is that this court does not, and on this record cannot, find a customary trust proved. The appellant is entitled to no declaration of trust and none is made. The second, and quite different, is that the appellant's failure to prove a trust does not supply the proof which the respondent required in order to succeed in her own claim. The burden of proving trespass lay upon her throughout and never shifted. A defendant who fails to establish a positive case of his own is not for that reason to be treated as a trespasser; the plaintiff must still prove that his occupation is without her permission or other lawful justification. It is at that point, as I now explain, that the respondent's claim fails. 62.I am conscious that the appellant filed no counterclaim. He cannot therefore be granted a declaration of trust, an order of subdivision or a transfer in these proceedings, and none is granted. But an overriding interest under section 28 of the Land Registration Act binds the registered proprietor whether or not it is noted on the register, and it may be relied upon defensively, as a shield, by a defendant resisting eviction. It was open to the appellant to say, as he did, that the respondent had not shown him to be a trespasser. The absence of a counterclaim did not relieve the trial court of the duty to determine the defence that was raised. 63.There is, in addition, a distinct equitable answer to the claim which the trial court likewise did not consider. On the respondent's own evidence, she gave the appellant and his brother a portion upon which to build, her son showed the appellant the portion, and the appellant built upon it. The appellant's evidence, which stands uncontradicted on this point, is that she never stopped him while he was building the houses. Where an owner permits another to build upon her land in the expectation, encouraged or acquiesced in by her, that he may remain, equity will not permit her thereafter to assert her strict legal rights so as to defeat that expectation: see Inwards v Baker [1965] 2 QB 29. The Court of Appeal has confirmed that the doctrines of equity, including proprietary estoppel and constructive trust, are applicable to land transactions in Kenya notwithstanding section 3(3) of the Law of Contract Act: See the case of Willy Kimutai Kitilit v Michael Kibet [2018] eKLR. To like effect are Juletabi African Adventure Limited & another v Christopher Michael Lockley [2017] eKLR and Peter Mbiri Michuki v Samuel Mugo Michuki [2014] eKLR. 64.Grounds 1, 2 and 3 of the memorandum of appeal accordingly succeed, but in a limited sense and to a limited extent only: they succeed in establishing that the trial court failed to consider and determine the appellant's pleaded claim to a beneficial interest and to the equity arising from his occupation and construction with the respondent's knowledge and consent. They do not succeed in establishing the beneficial interest itself, which remains unproved and undetermined. Whether trespass was proved 65.Trespass to land consists in the unjustifiable interference with land which is in the immediate and exclusive possession of another. Its essence is entry upon, or remaining on, land without the consent, licence or lawful justification of the person entitled to possession. It is not enough for a plaintiff to prove title; she must prove that the defendant's presence is without her permission or other lawful basis. 66.On this record, the respondent's own evidence defeated her claim of trespass. She testified in chief that she had given the appellant and his brother their portion and that the appellant had used the land to date. On cross-examination she confirmed that her son had shown the appellant his portion of the land. At the hearing of the interlocutory application on 12th October 2022 she had similarly stated on the record that the land belongs to her and that she gave it to her grandchildren to build on. Her complaint, properly understood, was not that the appellant entered the land without her permission. It was that, having been given a portion, he thereafter fenced off the portion which she had sold to a third party and lodged a caution against the whole title. 67.That being so, the finding that the appellant "without any reason trespassed" upon the land and that "his occupation of the suit property is thus illegal" is not supported by the evidence and cannot stand. A person who enters land with the permission of the owner enters as a licensee, not as a trespasser. Such a person becomes a trespasser only if and when the licence is lawfully determined and he thereafter remains in occupation after reasonable notice to quit. There was no evidence of any determination of the licence, and no notice to quit was pleaded or proved. 68.The respondent's submissions do not engage with this evidence at all. They proceed upon the premise that proof of registration is, without more, proof of trespass. For the reasons already given, it is not. Registration establishes title; it does not establish that the person in occupation is there without permission. The one matter which might have supported a claim in trespass on these facts - namely that the appellant, having been allocated a portion, thereafter fenced off a different portion which the respondent had sold was neither pleaded in those terms nor supported by any survey or ground evidence identifying the two portions. 69.The real controversy between these parties was, and remains, one of extent and identity: which portion of the suit property was allocated to the house of the appellant's grandmother; whether the portion the appellant fenced lies within or outside that allocation; whether the respondent was entitled to sell the portion she purported to sell; and what the entitlements of the several houses of the late Joseph Ojil Oyieke are. None of those questions could be answered on the material before the trial court. There was no mutation form, no surveyor's report, no ground report and no site visit. There was no evidence tendered that the trial court did visit the locus in quo, nor was it asked to. In a boundary and encroachment dispute of this nature, a determination of encroachment made without any evidence fixing the boundaries on the ground is unsafe. 70.I would add this. An order of eviction is a drastic remedy. Where, as here, the person sought to be evicted asserts on oath that he has no other parcel of land upon which to settle, and where he has erected his dwelling upon the land with the owner's knowledge and consent, a court should approach the remedy with considerable circumspection and should be satisfied that the legal foundation for it has been strictly proved. That foundation was absent here. 71.There is a further and independent difficulty with the eviction order. The appellant testified, without contradiction, that he resides on the land together with his brother, Wicliffe Odhiambo, who was not sued. The purchaser to whom the respondent says she sold a portion was likewise not joined. An order for eviction directed at the appellant alone could not, in those circumstances, resolve the occupation of the land, and could not bind persons who were never before the court and never heard. 72.Ground 5 of the memorandum of appeal, insofar as it complains that execution of the judgment would result in the eviction of the appellant from land he has occupied since childhood, has substance. The order for removal of the caution 73.Section 71 of the Land Registration Act entitles a person who claims the right to obtain a registrable interest in land, or otherwise claims an interest in land, to lodge a caution forbidding dealings in that land. Section 73 provides the mechanisms for removal: withdrawal by the cautioner, removal by order of court, or removal by the Registrar upon application by any interested person after notice to the cautioner and after affording an opportunity to be heard. 74.The record shows that the section 73 machinery had in fact been set in motion. The Land Registrar issued a notice of intention to remove the caution dated 26th July 2021. The appellant lodged a written objection on 9th August 2021 asserting a beneficiary interest as a grandson of the original owner. Summons issued under section 14(b) of the Act on 11th August 2021 requiring the respondent to appear at the Land Registry on 1st September 2021. Both parties were heard and were then referred to the area Chief. That statutory process was never concluded. 75.The trial court ordered the removal of the caution without first determining whether the appellant held or claimed an interest capable of supporting it. That was, with respect, to put the cart before the horse. The very function of a caution is to hold the ring pending the determination of the claimed interest. Since the appellant has demonstrated at least an arguable beneficial claim, and since that claim has never been adjudicated, the order for removal of the caution cannot stand. 76.On this issue the respondent is on firmer ground. The authorities she cites establish that where a caution is objected to by the proprietor of the land affected, the onus lies upon the cautioner to justify the lodging of the caution and the need for it to remain in place: See the case of Andrea Gishore Onditi v Andrew Mogusu Kereu & 2 others [2013] eKLR; that the purpose of a caution is to preserve a legally recognisable interest pending the determination of rights: See Kiptuya Ngerech Too v Peris Wangui Macharia & another [2018] KEHC 5682 (KLR); and that a caution ought not to be permitted to remain where it unjustifiably prejudices the registered proprietor: See Pryson Makokha Tabata v Charles Wekesa Wanyama [2014] eKLR. Those principles are correct and I adopt them. 77.Applied to the present facts, they cut both ways. Because the very function of a caution is to hold the ring pending the determination of the claimed interest, the cautioner cannot be required to prove that interest conclusively as the price of retaining the caution; that would defeat the object of the protection. But because a caution is a temporary and protective measure only, neither can he be permitted to leave it in place indefinitely while taking no step whatever to have the interest determined. This caution was lodged on 9th February 2021. More than five years have since passed, the statutory process before the Land Registrar was never concluded, no proceedings have been instituted, and the claimed interest remains wholly unadjudicated, while an elderly registered proprietor is unable to deal with her land. That is precisely the mischief at which Onditi and Pryson Makokha Tabata are directed. 78.The just course, therefore, is neither to affirm the unconditional order for removal made by the trial court, which was made without any determination of the claimed interest and before the statutory process had run its course, nor to leave the caution standing without limit of time. It is to set aside that order and to substitute a self-executing order under which the caution remains in place for a limited period only, and thereafter lapses unless the appellant has within that period instituted proceedings for the determination of the interest he claims. To that extent, and to that extent only, the respondent's submissions on this issue prevail. The complaints against the conduct of the trial 79.Ground 5 alleges that the trial magistrate failed to record the evidence adduced, recorded totally different matters and added his own evidence, thereby giving the appearance of favouritism. These are grave allegations and they must be approached with care. 80.The proceedings placed before this court are certified as a true copy of the proceedings of the trial court. The appellant did not, at any time, apply to the trial court for correction of the record, nor has he placed before this court any affidavit or other material identifying what evidence was given but not recorded, or what was recorded but not given. The test for apparent bias is an objective one, namely whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias: See Porter v Magill [2002] 2 AC 357. That test is not satisfied by the mere fact that a decision has gone against a party. In the absence of any evidential foundation, the allegation of favouritism is not made out and I reject it. 81.I do, however, note that the judgment contains inaccuracies as to the record. It states that the plaintiff testified on 12th October 2022 and again on 7th September 2023, whereas the certified proceedings show that what took place on 12th October 2022 was the hearing of the interlocutory application, and that the trial hearing took place on 27th September 2023. The judgment also makes no reference at all to the submissions which the 1st defendant had indicated he would file. These matters are not, of themselves, fatal, but they are symptomatic of the summary manner in which the evidence and the defence were treated. 82.As to ground 4, the record does not bear out the assertion that the learned trial magistrate stated that levirate unions did not exist. The judgment says nothing on the subject, and the issue was not pleaded or canvassed in those terms at the trial. To that extent ground 4 is misconceived. Insofar, however, as it complains that the trial court failed to determine the inheritance rights of the appellant's house, it is subsumed within grounds 1 to 3 and succeeds for the reasons already given. 83.Ground 6 is a general omnibus ground and requires no separate treatment. The appropriate relief 84.Having found that the judgment cannot stand, the question is whether this court should order a retrial before a different magistrate, or determine the matter finally under section 78 of the Civil Procedure Act. 85.A retrial should not be ordered as a matter of course. In particular, a retrial ought not to be ordered where its effect would be to afford a party who has failed to discharge the burden of proof an opportunity to fill the gaps in her case. The respondent here had a full and unhurried opportunity to present her case. She elected to close her case without calling the witness she had listed. The evidential deficiencies the absence of any documentation of the succession, the absence of any proof of the alleged prior share given to and sold by the appellant's father, and the absence of any survey material identifying the allocated portions are hers, and a retrial would simply give her a second opportunity to make good a case that failed. 86.The burden lay on the respondent, as plaintiff, to prove trespass. She did not do so. Her claim for eviction accordingly fails. Her claim for an order directing the removal of the caution fails for the reasons given above. The proper order is therefore that her suit be dismissed. 87.I must, however, be clear about the limits of what this judgment decides. It does not determine the beneficial entitlements of the parties or of any other member of the family of the late Joseph Ojil Oyieke. It does not declare a trust. It confers no title on the appellant, and it does not authorise him to extend his occupation beyond the portion which the respondent allocated. It decides only that, on the evidence adduced, the respondent did not establish that the appellant is a trespasser liable to be evicted, and that the appellant's claimed beneficiary interest has never been adjudicated. 88.The underlying family dispute remains alive and it ought to be resolved once and for all in properly constituted proceedings joining all necessary parties, including Wicliffe Odhiambo, the purchaser of the portion said to have been sold, and the personal representatives of the estates of the late Joseph Ojil Oyieke and of the late Musa Ogutu Ojil. Where, as appears here, the root of the difficulty is that the estate of the late Joseph Ojil Oyieke was never regularly administered and distributed among his three houses, the appropriate forum may well be succession proceedings. 89.Given the family relationship between these parties, and given that elders, the area Chief and a court-annexed mediator have all previously been engaged, I would strongly encourage the family to make a further and genuine attempt at settlement through mediation or other alternative dispute resolution mechanisms in accordance with Article 159(2)(c) of the Constitution. Any settlement reached may be recorded before the court.Costs 90.Costs are in the discretion of the court under section 27 of the Civil Procedure Act, and although they ordinarily follow the event, that is not an inflexible rule. The dispute herein involves family members and each party shall bear own costs, both here and in the court below. Disposition 91.In the result, and for the reasons set out above, I make the following orders:i.The appeal is hereby allowed.ii.The judgment delivered on 23rd October 2023 and the decree issued on 1st November 2023 in Winam Senior Principal Magistrate's Court Environment and Land Case No. E021 of 2022 are hereby set aside in their entirety.iii.Substituted therefor is an order dismissing the respondent's suit in Winam Senior Principal Magistrate's Court Environment and Land Case No. E021 of 2022.iv.The order of the trial court directing the removal of the caution is set aside. The caution registered against title number Kisumu/Kasule/3847 on 9th February 2021 shall remain in force for a period of one hundred and eighty (180) days from the date of this judgment and no longer, save as provided in order (v) below.v.If, within the said period of one hundred and eighty (180) days, the appellant institutes proceedings for the determination of the beneficial interests in the suit property and serves the respondent with the same, the caution shall continue in force until the determination of those proceedings or until further order of the court seised of them. If no such proceedings are instituted within that period, the caution shall thereupon lapse and the Land Registrar, Kisumu East, shall remove the same from the register upon the application of the respondent, without any further order of this court.vi.Each party shall bear their own costs of this appeal and of the proceedings before the trial court. DATED, SIGNED AND DELIVERED AT KISUMU THIS 31ST DAY OF AUGUST 2026.E. K. WABWOTOJUDGEIn the presence of:Mr. Ombwayo for the Appellant.Ms. Odoyo for the Respondent.Court Assistant; Joanne Omondi.