https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4155

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC APPEAL CASE NO. E0l5 OF 2023** **MUTUA MBUVI MASILA** **JOSEPH MUASYA KIMEU:::::::::::::::::::::::::::::::::::::::APPELLANTS** **VERSUS** **SAMUEL MUTINDA MUTUA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT** **JUDGEMENT** The Appellants herein appeal to the Environment and Land Court Machakos against the whole judgement on the following grounds; 1. The Learned Magistrate erred in Law and in Fact in declaring Customary Trust over Land Parcel Number Muputi/Kimutwa 1414 which does not exist. 2. That the Learned Magistrate erred in law and in fact in failing to appreciate that title for Land Parcel Number Muputi/Kimutwa/1414 was closed on sub division giving rise to Land Parcel Number Muputi/Kimutwa/2037 and Land Parcel Number Muputi/Kimutwa/2038. 3. That the Judgement of the Learned Magistrate is ambiguous as the declaration of customary trust is not clear whether it is on Land Parcel Number Muputi/Kimutwa/1414 or Land Parcel Number Muputi/Kimutwa/2037. 4. That the Learned Magistrate erred in Law and in fact in making a wrong presumption that the whole of Land Parcel Number Muputi/Kimutwa/1414 was ancestral land when the same was not. 5. That the Learned Magistrate erred in Law and in fact in failing to find that the Plaintiff did not prove existence of Customary Trust over the 1st Appellants former Land Parcel Number Muputi/Kimutwa/1414 or the current Land Parcel Number Muputi/Kimutwa/2037. 6. That the Learned Magistrate erred in Law and in fact in failing to appreciate that the Respondents suit in the subordinate court was a non-starter as he failed to amend the plaint to plead the new parcel numbers Muputi/Kimutwa/2037 and Land Parcel Number Muputi/Kimutwa/2038. 7. That the Learned Magistrate erred in Law and in fact in holding that the 1st Appellant ought to have involved the Respondent when sub dividing Land Parcel Number Muputi/Kimutwa/1414 when it is not legally mandatory. 8. That the Learned Magistrate erred in failing to appreciate that the 1st Appellant as the previous registered proprietor of Land Parcel Number Muputi/Kimutwa/1414, he had absolute right to sub divide and sell any portion thereof without being fettered by the Respondent who is his son and a mere licencee. 9. That the Learned Magistrate erred in Law and in fact in failing to appreciate Land Parcel Number Muputi/Kimutwa/1414 comprised of two portions; one ancestral and the other one the 1st Appellant purchased from his uncle and both were merged during Adjudication and registered as Land Parcel Number Muputi/Kimutwa/1414. 10. That the Learned Magistrate erred in Law and in fact in failing to appreciate that the Respondent was offered a chance by his father; the 1st Appellant to purchase the portion he constructed his house to cater for the medical bills of his mother but he refused hence the land was sold to the 2nd Appellant. 11. That the learned Magistrate erred in Law and in fact in failing to appreciate that the Respondents brother Paul Muinde Mutua had purchased from the 1st Appellant, his father two portions on the land the 1st Appellant bought from his uncle and fully paid for the same and the Respondent was no exception he ought to have paid to remain on his portion. 12. That the Learned Magistrate erred in Law and in fact in failing to appreciate that the Respondent was owning two portions of land, one where he is settled and the portion on the ancestral land while all his other siblings have one portion on the ancestral land and this is unfair to other siblings. 13. That the Learned Magistrate erred in Law and in fact in making a wrong finding that the Respondent is occupying Land Parcel Number Muputi/Kimutwa/2037 while he is actually occupying 2nd Appellants Land Parcel Number Muputi/Kimutwa/2038. 14. That the Learned Magistrate erred in Law and in fact in failing to appreciate that the Respondent was gifted a portion of the ancestral portion which he should shift to and vacate Land Parcel Number Muputi/Kimutwa/2038 belonging to the 2nd Appellant. 15. That the Learned Magistrate erred in Law and in fact in holding that the 1st Appellant did not pass a good title to the 2nd Appellant yet ironically upholding the sale agreement for Land Parcel Number Muputi/Kimutwa/2038 as valid. 16. That the Learned Magistrate erred in Law and in fact in dismissing the 2nd Appellant's counterclaim without analyzing the evidence tendered, the pleadings and failed to take into consideration the 2nd Appellants submission hence arriving at a wrong conclusion. 17. That the Learned Magistrate erred in Law and in fact in failing to appreciate that the 2nd Appellant was the bonafide registered owner of Land Parcel Number Muputi/Kimutwa/2038 which he validly and legally purchased from 1st Appellant. 18. That the Learned Magistrate erred in Law and in fact in failing to order the Respondent to vacate and/or be evicted from Land Parcel Number Muputi/Kimutwa/2038 belonging to the 2nd Appellant hence leaving the 2nd Appellant holding a title deed but no land on the ground. 19. That the Learned Magistrate erred in Law and in fact by making a wrong finding that Land Parcel Number Muputi/Kimutwa/2037 is registered in the name of the 2nd Appellant yet the 2nd Appellant is the registered owner of Land Parcel Number Muputi/Kimutwa/2038. 20. That the Learned Magistrate erred in Law and in fact in failing to appreciate that no prayer was sought in the plaint for cancellation of 2nd Appellants title to Land Parcel Number Muputi/Kimutwa/2038 hence the same remains a valid title. 21. That the Learned Magistrate erred in Law and in fact in failing to believe the 1st Appellants document dated 19/5/2019 which confirmed that the 1st Appellant purchased land from his uncle which he combined with the portion from ancestral land and was registered as Land Parcel Number Muputi/Kimutwa/1414. 22. That the Learned Magistrate erred in Law and in fact in failing to find that the respondent did not prove his suit on a balance of probabilities and proceed to dismiss the same. The Appellants pray for orders that; 1. That the appeal be allowed and the subordinate courts judgment dated 15/3/2023 be set aside and substituted with an order dismissing the Respondent's suit with costs to the appellant. 2. That the 2nd Appellants counterclaim in the subordinate court be allowed and the Respondent be evicted from 2nd Appellants Land Parcel Number Muputi/Kimutwa/2038. 3. That the costs of the appeal and the suit before the subordinate court be borne by the Respondent. This court has considered the evidence and the submissions therein. This is the first appeal, the primary role of the court is to re-evaluate, re-assess and re-analyze the evidence on record and decide as to whether the conclusion reached by the learned magistrate was sound, and give reasons either way. This duty was emphasized by the Court of Appeal in Mbogo and another vs Shah (1968) EA 93 where it was held that; *“I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matter on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. It is for the company to satisfy this court that the judge was wrong and this, in my view it has failed to do.”* The matter began by a plaint dated 9th May 2019. The Plaintiff/Respondent testified that the 1st Defendant/Appellant is his father and he inherited the said suit land from his grandfather. That his father showed him the site to build which he did in the year 2000 and resides there with his wife and children. That he stayed there peacefully and uninterrupted until 2018 when the 2nd Defendant/Appellant send him letters stating that he had bought the land and he should move out in 45 days. He was never consulted about any sale of the suit land. It is in evidence that the suit land Parcel Number Muputi/Kimutwa/2038 is registered in the name of the 2nd Defendant/Appellant the same being a subdivision of the original Land Parcel Number Muputi/Kimutwa/1414. The Land Registration Act is very clear on issues of ownership of land and Section 24(a) of the Land Registration Act provides as follows; *“Subject to this Act, 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*.” Section 26 (1) of the Land Registration Act states as follows; *“The Certificate of Title issued by the Registrar upon registration … shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner… and the title of that proprietor shall not be subject to challenge except –* a. *On the ground of fraud or misrepresentation to which the person is proved to be a party; or* b. *Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”* The 1st Defendant/Appellant testified that he had inherited a portion of ancestral and in 1972 purchased another portion and consolidated the two giving rise to Land Parcel Number Muputi/Kimutwa/1414. His family settled on the ancestral land and he subdivide and sold the other portion to the 2nd Appellant and also his other son. The Respondent without consent moved into the bought portion and was requested to move back to the ancestral portion or pay for it which he has refused. That after the sale Land Parcel Number Muputi/Kimutwa/1414 was subdivided into Land Parcel Number Muputi/Kimutwa/2037 and Land Parcel Number Muputi/Kimutwa/2038 and the 2nd Appellant purchased Land Parcel Number Muputi/Kimutwa/2038 which was registered in his name. The 2nd Defendant/Appellant stated that he bought the land from the 1st Defendant/Appellant. That when he bought it there was house which looked deserted and was told it belonged to the Plaintiff. After purchase he allowed the Plaintiff to use the suit land for grazing but the Plaintiff later refused to move out. That when he purchased the land it was Land Parcel Number Muputi/Kimutwa/1414 which was later subdivided. DW3 the 1st Defendant’s daughter corroborated the 1st Defendants evidence and stated that she was aware that her brother lived and cultivates on the suit land. That her father was also aware of the Respondent’s occupation. The Supreme Court in Petition No. 18 (E020) OF 2022 Arvind Shah & 7 Others vs Mombasa Bricks & Tiles Limited & 5 Others stated as follows; *While Sections 25, 26 and 28 of the*[*Land Registration Act*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2012/3)*recognize that the rights of a registered proprietor of land are absolute and indefeasible, these are only subject to rights and encumbrances noted in the register and overriding interests. The overriding interests include trusts. In our view, and in the absence of any limitation as to the trusts, this includes constructive trusts. Applying the provisions of Article 24 of*[*the Constitution*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution)*therefore, the limitation of the right to property is provided under law, and includes a constructive trust.(86)We have found that the doctrines of equity are part of our laws by virtue of Section 3 of the*[*Judicature Act*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1967/16)*. And while*[*the Constitution*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution)*entitles every person to the right to property at Article 40, this right is not absolute. Article 24 provides that a right cannot be limited except by law. We have also established that, while Sections 25 and 26 of the*[*Land Registration Act*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2012/3)*provide for the rights of a proprietor and that the certificate of title is conclusive evidence of proprietorship, Section 28 provides that the registration is subject to overriding interests. One of these overriding interests is trust, which includes constructive trust.* *We have also established that constructive trusts can arise in various circumstances, including in land sale agreements. Trust is an equitable remedy which is an intervention against unconscionable conduct. Where the circumstances of the case are such that it would demand that equity treats the legal owner as a trustee, the law will impose a trust. It is imposed by law whenever justice and good conscience require it. On this issue and for the reasons given above, we therefore find that a constructive trust can be imported into a land sale agreement to defeat a registered title.”* Section 28 (b) of [*Land Registration Ac*](http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20300)*t* provides as follows; *a.Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register—* *b.…* *c.trusts including customary trusts.* Similarly in the case of [Peter Gitonga vs Francis Maingi M’Ikiara](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/kehc/2007/1392) Meru HCCC NO. 146 of 2000 it was stated that; *“A “trust” can be created under customary law and the circumstances* *surrounding registration must be looked at to determine the purpose of the registration. This was what led Muli J. to say this; “Registration of titles are a creation of law and one must look into the considerations surrounding the registration of titles to determine whether a trust was envisaged”.* Finally, the concept of customary trust has found firm approval in the Supreme Court of Kenya in the case of [Issack Kieba M’Inanga vs Isaaya Theuri M’Linturi & Anor](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/kesc/2018/22) Supreme Court of Kenya No. 10 of 2015 where the Lord Justices of the Supreme Court held as follows; *“Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding were for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are: the land in question was before registration, family, clan or group land; the claimant belongs to such family, clan, or group; the relationship of the claimant to such family, clan or group is not* *so remote or tenuous as to make his/her claim idle or adventurous; the claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances; the claim is directed against the registered proprietor who is a member of the family, clan or group.”* The legal burden to prove the existence of the trust rests with the one who is asserting a right under customary trust. To discharge this burden, the person must proof that the suit properties were ancestral/ clan land; that during adjudication and consolidation, one member of the family was designated to hold on behalf of the family; that the registered persons were the designated family members who were registered to hold the parcels of land on behalf of the family. The Plaintiff/Respondent led detailed evidence that the suit land was shown to him by his father the 1st Appellant and he constructed his homestead there. This was confirmed by the Appellants. That the land is ancestral and was held in trust under his father’s name. That the 1st Defendant has always stayed there. I am satisfied that the Plaintiff has been in possession of the suit land from the year 2000 with his family members and this is not in dispute. There is no evidence provided by the 1st Appellant of which portion was ancestral and which one could have been purchased if at all. Looking at the totality of the evidence that was considered by the court below and noting that both the 1st Appellant and Respondent were in peaceful occupation of their respective parcels for over 18 years before 2018, when the 2nd Appellant sent a demand letter for eviction, we are persuaded that the trial magistrate was not wrong in her finding. I find that it was dishonest for the 1st Appellant to transfer the suit land to the 2nd Appellant knowing very well the Plaintiff/Respondent was and/had been in possession for years and had constructed a house thereon. If one was to believe the 1st Appellant for a moment, why would he allow the Respondent to occupy the parcel of land for over 18 years without raising any question? I find that a customary trust does exist and the Plaintiff/Respondent holds an overriding interest over the suit land. Having found that the Appellants have failed to discharge the evidentiary burden on a balance of probability, this Court holds and finds that the trial magistrate did not err in law when she found for the Respondent herein. The upshot of the foregoing is that this Court finds and holds that the Appeal herein as contained in the Memorandum of Appeal dated 13th April 2023, is not merited. For the avoidance of doubt I find that Land Parcel Number Muputi/Kimutwa/1414 is ancestral land held in trust for all the beneficiaries and the same was subdivided into Land Parcel Number Muputi/Kimutwa/2037 and Land Parcel Number Muputi/Kimutwa/2038. Any purported sale without the consent of the other family members including the Respondent was hence null and void. On the issue of costs, Section 27 of the [Civil Procedure Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1924/3) requires that costs to follow event, but the Court has the discretion to rule otherwise. The Court in Machakos ELC Pet No. 6 of 2013 Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 others (2013) eKLR quoted the case of Levben Products vs Alexander Films (SA) (PTY)Ltd 1957 (4) SA 225 (SR) at 227M held: *“It is clear from authorities that the fundamental principle underlying the award of costs is two-fold. In the first place the award of costs is matter in which the trial Judge is given discretion (Fripp vs Gibbon & Co., 1913 AD D 354). But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at. In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.”* This Court notes that the 1st Appellant and Respondent are relatives and the dispute is over family property. In a nutshell, the Court finds and holds that the Appeal herein is not merited and is dismissed with no orders as to costs as the parties are relatives. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 7TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**