https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3324

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ELC(OS) NO. E034 OF 2024** **FRANCIS ODOYO MBECHE (Suing on behalf of the** **Estate of Jeconiah Mbeche** **Obongo** – **Deceased)……………………..1st PLAINTIFF/APPLICANT** **MAUREEN ACHIENG (Suing on behalf of the** **Estate of Tobias Ochieng** **Ndare** – **Deceased)……………………....2ND PLAINTIFF/APPLICANT** **LILIAN AKOTH OCHIENG (Suing on behalf of the** **Estate of Tobias Ochieng** **Ndare** – **Deceased)……………………….3RD PLAINTIFF/APPLICANT** **VERSUS** **ANDEREKI OTIENDE OTUOMA…………………………..DEFENDANT** **JUDGEMENT** 1. By way of an Originating Summons which was later amended with leave of the court and filed as an Amended Originating Summons dated 24th April 2025, the Plaintiffs/Applicants sought the determination of the following issues; 2. **This Honourable Court be pleased to dissolve trust created by the decree dated 20th December 1996 in Civil Suit No. 113 of 1998.** 3. **That this Honourable court be pleased to appoint FRANCIS ODOYO MBECHE, MAUREEN ACHIENG and LILIAN AKOTH OCHIENG in place of the Defendant for the purposes of distribution of the trust property herein LR No. SUNA EAST/WASWETA 1/173.** 4. **This Honourable court be pleased to order the registrar of lands and the county surveyor to sub divide land parcel LR No. SUNA EAST/WASWETA 1/173 in four equal portions for the Defendant, the family of the beneficiaries of JECONIA ODOYO MBECHE, the beneficiaries in the estates of TOBIAS OCHTENG and beneficiaries of estate of PATRICK OMER -Both all deceased and cause mutations for the four sub divisions and subsequently create new parcel numbers for the sub divisions.** 5. **That the Respondent’s sons and or assigns, beneficiaries and or anyone claiming by him and who are occupying land belonging to the families of JECONIA ODOYO MBECHE, the estates of TOBIAS OCHIENG and PATRICK OMER in the suit property be evicted by an order of this court.** 6. **That this Honourable court be pleased to order the Defendant to sign instruments of transfer in favour of the administrators of the estates of JECONIA ODOYO MBECHE, TOBIAS OCHIENG and PARICK OMER and in default direct the Executive officer of the court to effect to execute the instruments of transfer.** 7. **The Defendant herein be ordered and/or directed to execute and/or sign all the necessary instruments to facilitate the transfer and registration of the trust property into the name of the Plaintiff and the names of persons appointed to administer the estates of MAUREEN ACHIENG, and LILIAN AKOTH OCHIENG TOBIAS OCHIENG and PATRICK OMER-both deceased m default of which the Deputy Registrar to execute the same in order to facilitate the transfer.** 8. **That costs be provided for** 9. As stated at the beginning of the analysis and determination blow, the suit parcel of land was amended orally in open Court on 23rd March 2026 to reflect the proper parcel number in issue as Suna East/Manyatta/173. 10. The Summons was supported by the grounds on the face of it and depositions in the Affidavit sworn by Francis Odoyo Mbeche the 1st Applicant. The Affidavit reiterated the contents of the grounds in support of the summons save that it had some additional evidence thereto. Thus, this court need not rehash the contents of both the set of grounds and depositions separately. Rather, it will merge them and use the longer version of the content which in any event is both the pleading and evidence, that is, the Supporting Affidavit. Suffice it to say that the Applicants pleaded that they were jointly beneficiaries in the trust created by the decree dated 20th December 1996 over parcel No. Suna East/Wasweta 1/173. 11. In the Affidavit in support of the Summons, the Plaintiff deponed that he was the son of JECONIA ODOYO MBECHE (deceased) and the administrator Ad Litem of his Estate, limited to filing of this suit. He attached and marked as TOM 1 a copy of Grant ad Litem. Further, that he had sought the leave of MAUREEN ACHIENG and LILIAN AKOTH OCHIENG to swear this affidavit on their behalf, annexing and marking as **TOM 1a** the Authority to Plead. He stated that by civil suit No. 113 of 1988 at Kisii, the Respondent sued his father JECONIA ODOYO MBECHE, TOBIAS OCHIENG and PATRICK OMER - all deceased, claiming absolute proprietorship and vacant possession of the suit property. The suit was heard and determined in 1996 when court declared the Respondent herein held the suit property SUNA EAST/WASWETA/173 in trust for the family. He attached and marked as **TOM 2** a copy of the decree. 12. The deponent averred that Mbaluto J, as he then was, created a trust over the suit property wherein the Respondent was made a trustee on behalf of the family of ALEXIUS ABUTO-Deceased who included JECONIA ODOYO MBECHE, TOBIAS OCHIENG and PATRICK OMER - all deceased. Following the deaths of JECONIA ODOYO MBECHE, TOBIAS OCHIENG and PATRICK OMER, the Respondent proceeded and clandestinely reconfigured the boundaries in the suit land gradually uprooting sisal markings and eventually pushed out the dependants of TOBIAS OCHIENG and PATRICK OMER and himself to a tiny portion of the suit property measuring approximately 0.05 Ha. 13. The deponent averred that the Respondent thereafter drew a mutation sub dividing the suit parcel into eleven portions; to himself, his sons and a tiny portion measuring 0.05 Ha to him (Applicant). He attached and marked as **TOM 4** a copy of mutation. That the sons of the Respondent herein had since occupied portions of land that were hitherto belonging to the families JECONIA ODOYO MBECHE, TOBIAS OCHIENG and PATRICK OMER. As a result of Respondent’s clandestine actions, he had abused trust conferred upon him by Mbaluto J in Civil Suit No. 113 of 1988 and he could not be trusted further in administering the trust property hence it was in the interest of justice that the trust be dissolved and its property be divided equally among the four claimants under the trust. 14. He urged that the suit land measures approximately 4.2 Hectares, and annexed and marked as TOM5 a copy of the survey report. He urged that it was in the interest of justice that all the beneficiaries of the trust get their portions of the suit land. 15. The Defendant filed a Replying Affidavit sworn on 4th February 2026 in response to the Amended Originating Summons, which was sworn by Andrew Otieno Otiende. He deponed that he was the sole registered owner of the suit land. He produced a copy of the title deed marked as **AGOO1**. Further, that he obtained title to the land after following due process. He attached copies of the Application for consent, consent letter and transfer forms. He urged that the Amended Originating Summons was defective and that the decree dated 20th December 1996 was time barred as it offended the provisions of Section 7 of the Limitation of Actions Act. 16. The deponent averred that the property was properly distributed amongst the family members of Jeconia Mbeche Obongo and Tobias Ochieng Ndare and that the property had been under litigation vide various suits to wit; Kisii HCCC 290 of 2012, Kisii HCCC 243 of 2013, Migori ELC 79 of 2019 and Migori ELC Case 48 of 2019 and hence the same was res judicata. Further, that parcel No. SUNA EAST/ WASWETA 1/173 was registered in the name of Hellen Omillo hence the Applicants’ claim over the suit land has no bearing in this matter. 17. He urged that the Plaintiffs are not family members of Alexius Abuto Akello and hence they lack locus standi to file the suit. Additionally, that the claim and the decree in respect of Kisii 113 of 1996 has no bearing in this matter. 18. The matter then proceeded for full hearing with the village elder and the chief testifying in court. 19. **PW1** was **Francis Odoyo Mbeche** who stated that Jeconia Mbeche Obongo (deceased) was his father. He adopted his witness statement as evidence in chief and the produced the in evidence the documents in the List of Documents dated 24th April 2025. The documents were marked in the List as 1 – 8 and initially marked as PMFI 1 – 8, and later produced as Pexh 1 – 7 since the Plaintiff did not produce Document number 2 on the List. Thus, the plaintiffs’ exhibits were: 20. *Limited grant to estate of Jeconia Mbeche Pexh 1* 21. *Sketch map – Pexh 2* 22. *Certified copy of judgment in Kisii Pexh 3* 23. *Chief’s letter dated 25.5.2015 as Pexh 4* 24. *Survey report dated 28.9.2020 Pexh 5* 25. *Photographs (4) are Pexh 6(a) to (d)* 26. *Green card copy Pexh 5* 27. In his written Statement he stated that he was the son of Jeconiah Mbeche (deceased). That his father and Tobias Ochieng Ndar (deceased), Patrick Omer (deceased) and the Defendant were all coproprietors of the parcel of Suna East/ Manyata/173 (herein referred to as the suit land). When he came of age he heard about Kisii Civil Suit No. 113 of 1988 which was filed by the Defendant against the coproprietors. His prayers were the eviction of the coproprietors. The suit was decided. In it he was declared to be holding the land in trust for the other proprietors. All the proprietors except him died. After the death of his father, the defendant became extremely hostile to him and his family. He destroyed the boundary of the property in 2015 which action prompted him to report the incident to the area chief who on 28th May 2015 wrote a letter that effect to the Defendant. That did not deter the defendant from interfering with the boundary. He proceeded to evict him from the portion of the suit land that relegated him to a tiny portion thereof. Further, he knew how the four families lived on the land before the actions of inequity of the defendant. He sought the dissolution of the trust that was created by the High Court in Kisii in Civil Suit No. 113 of 1998 so that the suit land be subdivided into four equal portions in favour of the four families. 28. In his poral testimony he stated that he claimed a portion of the land parcel no. 173 as a son of Mbeche. That the portion they occupied at the time of suit was not reflective in size of what their father left them. The beacons were removed and their land joined with another one. That the sons of Andrew Otiende Otwoma now resided on the portion which was left to them. He now claimed the portion their father left to them. 29. During Cross-examination he stated that the case he has relied on from Kisii, being No. 113 of 1988. That the decree was dated 20.12.1996. It was issued 28 years ago, that is, before he filed the instant case. That the decree was not dead. In it the judge said the land belonged to Alexas Abuto. That his father was known as Jeconia Mbeche and had brothers. One was John Hongo, Tobias Ochieng and Patrick Omer. 30. When questioned by the Court, he stated that he relied on the judgment in the Kisii case and not the decree because the judgment is the one that concluded the case. That the decree and judgment were the same or similar. 31. **PW2** was **Tobias Ogalo Okello** who stated that he knew Andrew Otwoma, Jeconia Mbeche, Patrick Omer and Tobias Ochieng Ndara as they were family members. He adopted his witness statement as evidence in chief. In it he stated that the three deceased persons being Jeconiah Mbeche, Tobias Ochieng and Patrick Omer, and the defendant were known to him. They together with the witness all migrated from Kisumu County to the present Kisumu Ndogo Village where the suit property was located. They and the witness belonged to the same clan. They migrated from Kisumu County at different times. The first person to settle in Kisumu Ndogo village was Alexis Abuto who inherited a widow known as Adebe (now deceased) and who was the mother of Jeremiah Gwada the mother of the 4th plaintiff. The last person to join the group the Defendant, and that was in or about **1972**. 32. He added that at that time all the four resided in one compound within the suit property under the patronage of Alexius Abuto who was not their biological father but acted as the father figure to them, having been older than and welcomed them to the Kisumu Ndogo Village. Later the clan sat and deliberated on the settlement of the four original claimants to their respective portions within the suit land. The suit land was divided into four portions as shown in the sketch map. Later, Alexius Abuto died leaving the four surviving him. After his death in **1983**, adjudication was carried in the area. The defendant being the most educated at the time outsmarted the other three proprietors and was registered as the sole proprietor of the land. The defendant then embarked on his clandestine adventure. The defendant first chased away the widow of Patrick Omer and her son Jeremiah Gwada the 4th plaintiff from the suit property. After that the defendant moved his home from where it was to the portion allocated to Patrick Omer (deceased). **In 1985**, upon adjudication and registration of the defendant as the proprietor of the suit land the defendant destroyed the boundaries of the suit land for the first time. The matter was escalated to court. The defendant sued the three (3) co owners for vacant possession. That was in **Civil Suit No. 113 of 1988** whose judgment formed the foundation of the originating Summons. The suit was decided in **1996** wherein the court held that the defendant the title to the Suit land in trust for the three unregistered proprietors of the suit land. Shortly after the judgment Jeconiah Mbeche died. The defendant tried to resist his burial on the suit land but was overpowered by the clan members who buried the deceased on the suit land. Later Ochieng Ndar and Patrick Omer also died. The defendant contested their burial on the suit land but in vain. In the year **2015** the defendant forcefully took possession of the suit land that belonged to Jaconiah Mbeche and settled his sons on it. The two are the ones who died during the pendency of this and were subject of the interlocutory application and orders of this court. Francis Mbeche and his siblings were relegated to a tiny portion of the suit land. Currently the defendant occupied **80%** of the suit property where he had settled his sons. 33. In the oral testimony he urged that the four persons were residing on one parcel of land as one family or home. They were invited to reside there by one Obaso Tako and Ogalo Tako who were his grandfathers. Alexas Abuto was invited onto the land by Obaso Tako and Ogalo Tako to the same parcel of land. He too invited others. 34. During Cross-examination he stated that he was born in 1969 and his father was Joash Okello Obaso. That his grandfather was called Obaso Tako and that he was not blood brothers with Alexius. He had heard of the Kisii case judgment wherein the court held that the land was of Alexius Abuto. 35. **DW1** was **Andrew Otiende Otwoma** who adopted his witness statement and Affidavits sworn on 26.3.2025 and 4.2.2026 as evidence. His witness statement dated 4th February 2026 was titled, Respondents Statement of Facts. It was filed by the party in person yet he had two Advocates on record for him, that is to say, M/S Mudeyi Okumu & Co. Advocates, and M/S Odondi Awino & Co. Advocates. The Replying Affidavit too was filed by him in person, as though he was acting in person yet there was no Notice to Act in Person filed, according to **Order 9 Rule 8** of the **Civil Procedure Rules**. The said Advocates too continued to file other documents in his behalf. That was strange. 36. Be that as it may, this Court could have struck out the two documents from the record and thereby finding that there was no written testimony adopted in evidence in Chief but in in the interest of justice, and under **Article 159(2)(d)** of the **Constitution**, this Court has in a very rare exception to be of its own kind ever permitted the documents to be part the record as properly filed and relied on. The Statement is similar in content with the Replying Affidavit to the Amended Originating Summons hence the court will adopt both but take down the contents of the more detailed document which is the Affidavit. The Affidavit was sworn on **4th February 2026**. Its depositions were that he was the sole proprietor of the parcel number Suna East/Manyatta/173. He annexed a copy of the title as **AGOO1**. he obtained it after following due process as required by law he attached a copy of the application for consent the consent and transfer forms marked to **2ABC**. 37. He added that the Amended Originating Summons was frivolous and misconceived and an abuse of the process of the court. It was defective and bad, and no amendment would cure it. The allegations by the plaintiffs were false and misleading. Their claims were incompetent and incapable of being entertained by the court. They did not disclose any sufficient grounds upon which the orders could be granted. 38. He deposed further that the decree 20th December 1996 was not clear, visible and was unreadable hence could not be relied on. Further, it was statutorily barred and could not be executed. It offended the mandatory provisions of Section 7 of the Limitation of Actions in so far as the claim was being brought outside the stipulated time. The claim was unrealistic and without legal basis. Further, he was the registered owner of the suit land where he stayed with his family. He attached a copy of the green card as AGOO1. By virtue of being the registered own he was entitled to use and possess the suit land absolutely. 39. DW1 added a deposition that the suit land was properly distributed amongst the family members of Jeconia Mbeche Obongo and Tobias Ochieng Ndare hence the allegations were untrue and contradictory. Further, through **Kisii HCC No. 290** of **2012** and **Kisii HCC No. 243** of **2013**, **Migori ELC No**. **79** of **2019** and **Migori ELC No. 48** of **2019** involving the same subject matter the claim was res judicata. He attached copies of the proceedings of the four case and marked them as **AOO2A**, **B**, **C**, and **D**. 40. He deposed that the suit parcel Suna East/Wasweta 1/173 being claimed by the applicants was registered in the name of Hellen Omoll hence it had no bearing in the matter in a question. He annexed a copy of the green card to thereto and marked it AOO3. He emphasized that the suit was res judicata. Further, that the plaintiffs’ claim was full of misstatement and misapprehension of the facts pertaining to the matter same question. The claim was in bad faith and an afterthought meant to embarrass him and deny him the rights he had under the law. The plaintiffs were not entitled to the orders sought in the Amended Originating Summons insofar as they were not members of the Alexius Abuto Akello family and had no local standi to sue on behalf of the Estate. Further, he had never interfered with or reconfigured the boundary of the suit land. To him he knew that the boundary had been as it was since the acquisition of the title and the resultant transfer was lawful in accordance with the lawful dealings. 41. DW1 added that the share of each was fair and the acreage in accordance with the ground. Further, that a parcel number Suna East/Mayatta/173 was registered in his name with the same measurement and acreage and the title issued to him on 11th April 1983. The claim was unfounded in law and fact. The defendant was a stranger to the allegations in the Amended Summons. The claim was wrongly filed before the court and the applicants should have executed the decree on the mother file and not by way of an Amended Originating Summons. They were attempting to execute through the back door a decree whose life span had expired. The suit land was specifically to be shared specifically between the family members of Alexius Abuto Akello as per the decree of Kisii High Case No.113 of 1988 and therefore the applicants had no rights whatsoever to lay a claim onto the land. 42. He added that as a result of the Plaintiffs’ long stay on the suit land he voluntarily prepared a Mutation Form subdividing the land into 11 portions and allocated the same to his family members and the family members of Alexius Abuto Akello, including the family of Jaconia Mbeche and Tobias Ochieng. He attached a copy of the Mutation and marked it AOO4. Before the mutation was registered it was discovered that there were discrepancies as to the acreage on the ground and the title deed. The Mutation was yet to be rectified due to the discrepancies. The matter was referred to the Land Registrar and County Surveyor to ascertain the anomaly and fix the boundary sometimes in 2019. He attached a copy of the Notice to ascertain and fix the boundary and marked it as AOO5A and B. The process of fixing the boundary was stopped by Francis Odoyo Mbeche who obtained a restriction Order from the court. The Lands Office was yet to fix the said boundary. He annexed a copy of the Order as AOO6 A and B. 43. Further, that contrary to the allegations by the applicants their allocated portions where in accordance with the acreage they were in occupation and the same was well fenced and demarcated as to where they were staying with their families. The Applicants’ claim was unrealistic and without basis and ought to be struck out. Their claim was unclear and therefore not capable of being entertained by the court. He added that he could not complete the process due to the restriction report by the Lands office following the Order on 20th May 2019. In the circumstances, applicants’ claim was an afterthought and in bad faith. It was premature. The suit parcel of land claimed in the Amended Originating Summons was different from his and the accompanying affidavits were false. 44. DW1 I did that the land was originally registered in the name of Alexius Abuto Akello who transferred it to him following the required procedure. The said Alexius Abuto was his father’s brother. He attached a copy of the Chief’s letter and marked it AOO8. Further, contrary to the allegations of plaintiffs there was no relationship between them and the family of Tobias Ochieng Ndare hence they were not entitled to claim the land. He knew Mbeche Obongo hailed from Kanyanjoni Village, Upper Osiri sublocation within South West Kisumu where there was the land parcel Kisumu/Kanyawegi/3096 hence the applicant ought to direct their claim to the same. He annexed a copy of the Chief’s letter. He added that the applicants had deliberately misled the court that they were entitled to the of the suit land yet they pleaded that their claim was in respect of Suna East/Waswetta 1/173. Further, that the decree in Kisi High Court Case No. 113 of 1988 was specifically to have the land distributed amongst the members of Alexis Abuto Akello yet the plaintiffs were not members of that family and had no right to claim anything. If they were entitled to claim anything from they should have filed Succession proceedings against the estate of Alexis Abuto Akello who is since deceased. The Originating Summons was frivolous misconceived and an abuse of the process of the court 45. In his oral evidence stated that he had a case in Kisii Law Courts, Civil case No. 113 of 1988 where Judgment was delivered. From his list of documents that he filed he produced only the decree dated 20.12.1996 as Dexh 1. He added that at paragraph (b) of the Decree the Judge said that the land was family land and the defendants held it in trust for the family of Alexas Abuto. That Alexas Abuto Akello was a brother to his father. That Parcel No. 173 is occupied presently by three people to wit; himself and children of Jeconia Mbeche of whom one is Francis Mbeche. That Francis is occupying 0.08Ha of the land and the other brother occupies 0.23Ha. He stated that is what he would want them to take away as he is occupying the balance. That the total is 4.2Ha. 46. During Cross-examination he stated that in Sivil Suit No. 133 of 1988 he sued three people being Jeconia Mbeche Obongo, Patrick Orwer and Tobias Ochieng Achieng. He was seeking eviction of the three from the parcel of land. The basis was that he was and still is the registered owner of the land. The court declared him as the trustee of Alexius Abuto and he appealed the judgment declaring him as trustee. That was in Kisumu on 1996 December case No. 97 of 1996 Court of Appeal. The Court of Appeal dropped his case under technicality and that the decree was not overturned. That he later made another appeal in Kisumu in 97 of 1996. There was and is no decree overturning the decree of Kisii that he was a trustee for the family of Abuto. 47. The parties were then directed to file submissions on the Summons. **Plaintiff’s submissions** 1. Learned Counsel for the Plaintiff submitted that the evidence before this Court demonstrates that the Defendant was declared as the registered proprietor of the suit property in trust for the family of the late Alexius Abuto, which family included Jeconia Odoyo Mbeche, Tobias Ochieng and Patrick Omer by the High Court in a judgment delivered by Hon. Justice Mbaluto on 21st June 1996. The said judgment arose from a suit filed by the Defendant seeking to evict the said persons from the suit land. The court dismissed the Defendant’s claim and held that although the Defendant was the registered proprietor of the suit land, he held the same in trust for the said family members. The judgment was never overturned on appeal and therefore remains binding upon the parties. 2. Counsel urged that the Plaintiff herein is the son and administrator ad litem of the estate of Jeconia Mbeche Obongo, one of the beneficiaries recognized in the said judgment. The Plaintiff testified and relied on documentary evidence including limited grants ad litem, the certified copy of the judgment in Civil Suit No.113 of 1988, the chiefs letter dated 28th May 2015 complaining about interference with boundaries by the Defendant, the survey report dated 28th September 2020 showing the extent of the suit property, photographs and the green card for the suit property. The Plaintiffs evidence demonstrates that despite the declaration of trust by the High Court, the Defendant proceeded to evict the families of Tobias Ochieng and Patrick Outer, relegated the Plaintiffs family to a very small portion of land and allocated the majority of the land to his sons. 3. Counsel reproduced the evidence of the witnesses and urged that the Defendant attempted to challenge the relationship between the Plaintiffs family and the family of Alexius Abuto by relying on a letter allegedly written by a chief in Kisumu in 2018 declaring him the rightful beneficiary of Alexius Abuto. That with respect, that issue was conclusively determined in Civil Suit No.113 of 1988. That the Defendant cannot reopen the issue of family relations which was already determined by a court of competent jurisdiction as the doctrine of res judicata bars such attempts. Reliance was placed on Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others, Civil Appeal No.105 of 2017 [2017] eKLR. 4. On limitation of actions, Counsel urged that the decree in Civil Suit No. 113 of 1988 was essentially a negative decree because the Defendant’s suit for eviction was dismissed. What the court did was to declare the existence of a trust. The present proceedings therefore seek enforcement and proper administration of the trust and not execution of a decree. Further, that the law is clear that limitation does not run against a trustee who remains in possession of trust property. He cited Section 20 of the Limitation of Actions Act (Cap 22 Laws of Kenya) and the decision in Stephens & 6 Others v Stephens & Another, Civil Appeal No. 13 of 1986 [1987] KLR 125. 5. Counsel urged that the law governing customary trust in Kenya is now well settled, citing Isack M’lnanga Kiebia v Isaaya Theuri M’Lintari & Another, Supreme Court Petition No.10 of 2015 [2018] eKLR, Kanyi v Muthiora [1984] KLR 712 (Civil Appeal No.19 of 1984) and Mwangi & Another v Mwangi [1986] KLR 328 (Civil Appeal No.245 of 1995). Counsel further submitted that Section 28(b) of the Land Registration Act No.3 of 2012 recognizes trusts including customary trusts as overriding interests that bind the registered proprietor even though they are not noted in the register. 6. Counsel submitted that the Defendant’s conduct in subdividing the suit land into eleven parcels and allocating most of those parcels to his sons clearly demonstrates a breach of the trust declared by the High Court. Instead of administering the land for the benefit of the four families recognized in Civil Suit No. 113 of 1988 he appropriated the land for the benefit of his own family members while marginalizing the other beneficiaries. 7. Counsel submitted that Courts have consistently intervened where trustees attempt to appropriate trust property for their own benefit, citing Mbui Mukangu v Gerald Mutwiri Mbui, Civil Appeal No.281 of 2000 [2004] eKLR, and Mumo v Makau [1984] KLR 392 (Civil Appeal No.41 of 1983). 8. Counsel urged that the Court of Appeal in Willy Kimutai Kitilit v Michael Kibet, Civil Appeal No.51 of 2015 [2018] eKLR further held that equitable doctrines such as constructive trust and proprietary estoppel are applicable to land registered under the land registration statutes. 9. Counsel posited that the Defendant also attempted to rely on the doctrine of res judicata by referring to HCC No.290 of 2012, ELC No.79 of 2019 and ELC No.48 of 2019. However the evidence shows that HCC No.290 of 2012 was dismissed for want of prosecution while the other suits were withdrawn. A suit dismissed for want of prosecution or withdrawn without determination on the merits cannot operate as res judicata. That the Court of Appeal clarified this position in Njue Ngai v Ephantus Njiru Ngal & Another, Civil Appeal No.26 of 2015 [2016} eKLR. 10. Counsel urged that the Defendant admitted that the suit land measures approximately 3.50 hectares while the Plaintiff occupies only about 0.08 hectares. The mutation forms produced by the Defendant show that he subdivided the land into eleven parcels which were largely allocated to his sons. The subdivisions therefore do not reflect the trust structure recognized in Civil Suit No. 113 of 1988 which involved four families. That if the total acreage of 3.50 hectares were to be distributed equally among the four families recognized in the said judgment, each family would be entitled to approximately 0.875 hectares. The Plaintiff s family currently occupies only 0.08 hectares, demonstrating the extent of the injustice occasioned by the Defendant’s actions. 11. Counsel urged that the Plaintiff has proved on a balance of probabilities that the Defendant holds land parcel LR No. SUNA EAST/MANYATTA/173 in trust for the four families recognized in Civil Suit 113 of 1988 and that the Defendant has breached that trust by allocating the majority of the land to his sons while marginalizing the Plaintiffs family and other beneficiaries. He urged the court to order dissolution of the trust declared in Civil Suit No. 113 of 1988, order subdivision of land parcel LR No. SUNA EAST/MANYATTA/173 into four equal portions corresponding to the four beneficiary families, direct the Land Registrar to effect the subdivision and registration of the resultant parcels in favour of the respective beneficiaries, order eviction of the Defendant’s sons and assigns occupying portions belonging to the other beneficiaries, direct the Defendant to execute the necessary transfer instruments and in default authorize the Executive Officer of this Honourable Court to execute the same and award costs of the suit to the Plaintiff. **Defendants’ Submissions** 1. Counsel for the Defendant submitted that the judgment and/or decree which was produced as exhibit is couched in the following words; “(a) The plaintiff’s claim is dismissed with costs. (b) The Land Parcel No. Suna East/Manyatta/173 is declared family land and the plaintiff holds in trust for family of the late Alexius Abuto.” 1. That the decree is dated 20th December, 1996 and by dint of Section 7 of Limitations of Actions Act, Cap 22 Laws of Kenya, has outlived its usefulness and is now a dead decree. Be that as it may, the trust therein is about the family of Alexas Abuto, the plaintiff attempted to suggest that he is from the family of Alexius Abuto, but he quickly changed his narrative that he is grandson of Obongo Rasanga and the plaintiff’s father is Jeconia Mbeche Obongo. That there is no connection at all between the family of Alexius Abuto and Obongo Rasanga, nor does the decree in High Court Civil Case No. 113 of 1988 mention the family of Obongo Rasanga. 2. Counsel urged that it is therefore misleading to suggest that the trust created in the High Court case in Kisii was in favour of Jeconia Odoyo Mbeche, Tobias Ochieng and Patrick Omer. Nowhere in the decree is their share disclosed. 3. Counsel submitted that the plaintiff testified that he is in occupation of a portion of the suit land, he described the portion as “tiny” and cited the case of Peter Okoth vs Ambrose Ochido Andajo & Another ELC Case No. 48 of 2018. He urged the Court to award the plaintiff the portion he described in court and discharge the restrictions imposed on the suit land with cost to the defendant. **Analysis and Determination** 1. This suit raises the pertinent question as to whether the Plaintiff is entitled to the suit land arising out of the trust created by the decision of the court. 2. It is important to note at the very outset that although the Plaintiffs had initially pleaded that the suit land was Suna East/Wasweta I/173 they moved the court orally and had the pleading amended on 23rd March 2026, just before the first witness could testify, to read Suna East/Manyatta/173. Thus, the evidence and opposition to their pleadings on the reference to the “Wasweta I” was automatically cancelled and rendered of no basis. The court thus focuses on the suit land as Suna East/Manyatta/173. 3. The Black’s law Dictionary 11th Edition defines “Trust” as follows; **The right, enforceable solely in equity, to the beneficial enjoyment of property to which another person holds the legal title; a property interest held by one person (the trustee) at the request of another (the settlor) for the benefit of a third party (the beneficiary) A fiduciary relationship regarding property and charging the person with title to the property with equitable duties to deal with it for another’s benefit.** 1. It is not in dispute that the land is registered in the name of the Defendant. However, it is clear from the evidence by the Plaintiff, PExh 8, the Green Card, (which incidentally was annexure AOO1 of the Defendants Supporting Affidavit which he adopted in evidence in chief) that the suit land was registered in the Defendant’s name on 12th April 1983. That was upon a transfer to him by Alexius Abuto who was the initial owner. The same Exhibit also shows that this land has never been subdivided. 2. This turns this Court then the Plaintiffs’ further evidence that the suit land was and is still held in trust for them by the Defendants and that the trust ought to be dissolved. It is not in contention that the suit land has been a subject of litigation in Kisii Civil Case No. 113 of 1988 whose decree was issued on 20th December 1996. The decree was final and was neither set aside not appealed from. The Plaintiff’s claim was that it created a trust in their favour. While the Defendant admits to this evidence he testified that the decree was stale or could not be executed through the instant suit. He emphasised this at paragraphs 12 and 13 of the Replying Affidavit. He said it was time barred by virtue of Section 7 of the Limitation of Actions Act. The Plaintiff’s testified to the contrary. 3. Further, on his part the Defendant changed his testimony state in his affidavit and oral testimony that the parties or families who were found to be entitled to the trust created by the Decree were those of Alexus Abuto Akello only and therefore the Plaintiffs were not entitled to any share of the land. He stated at paragraph 31 of his Replying Affidavit, which is in agreement with the plaintiffs’ testimony, that the suit land was to be shared among the family members of Alexius Abuto. He added that to him the land was then properly distributed amongst the family members of Jeconiah Obongo and Tobias O. Ndare hence the allegations by the plaintiff were untrue and contradictory. He stated this at paragraph 17 of his Replying Affidavit and added at paragraph 23 that the plaintiffs were not family members of Alexius Abuto Akello hence could not suit on behalf of his Estate. He added, at paragraph 23 and 25 that the boundaries of the suit land remained as they were at the time of acquisition of the suit land, and added at paragraph 26 that to him the share of each other was fair. 4. It is not in dispute that the suit land, namely Suna East/Manyatta/173 was the same parcel of land that was the subject in Kisii High Court Civil Suit No. 113 of 1988. It was the suit land that the Court decreed in that case that it be shared amongst the family members of Alexius Abuto because the learned judge held, “…I declare the disputed land to be family land which the Plaintiff holds in trust of all the members of the family…” That being so, the Plaintiff was duty bound to share the land in accordance with the judgment. That, in my understanding is what the Plaintiff did when, as his own evidence as summarised above is, shared physically the parcel of land as it was at the time when he approached the Court in Kisii High Court in the suit No. 113 of 1988. He admits in his own affidavit, although it is a lie because evidence by the Plaintiffs is clear that he destroyed the boundaries from the year 2015, that the boundaries remain as they were at the time of that suit and therefore decree. 5. The above finding leads this Court to look at the judgment in Kisii High Court Civil Case No. 113 of 1988 and the decree thereto for interpretation of the evidence on what the occupation of the land was at the time. This is because, it is my finding herein now that the decree was implemented in part to the extent of settling the families’ occupation on the land and what remained was only titling of the same occupation. Thus, when the Plaintiff sued the three now deceased persons, Jeconiah Mbeche, Tobias Ochieng and Patrick Omer as the 1st, 2nd and 3rd Defenants, who were the parents of the Plaintiffs herein, the court found that “…*the Plaintiff and the 3 defendants are all relatives and that all live on the suit land… They are also al relatives of the late Alexius Abuto… The Plaintiff is a nephew… The 1st defendant is also a nephew… The 2nd Defendant is also a nephew… The 3rd defendant is a son of the late Alexius Abuto*…” 6. The Court found further that “*…there is considerable doubt that the intention of the original owner was to make the plaintiff the sole owner thereof… the late Abuto had allocated each a separate piece… indeed they lived as one family…then the probability that he did not intend to transfer and did not realise that the plaintiff was taking all the land occupied by the family becomes almost a certainty….I declare the disputed land to be family land which the plaintiff holds in trust for the benefit of the family*.” 7. It was upon that finding that the family remained settled on the suit land was were allocated by the late mzee Alexius Abuto. It is clear to me that to the extent that the families which were found by the Court to be members of the Alexius Abuto family were the four, being the Jeconiah Mbeche, Tobias Ochieng, Patrick Omer and the Defendant. They were the ones settled on and living on the suit land as the family of Alexius Abuto at the time. The Defendant cannot be heard to reopen that piece of evidence to the contrary when he did not appeal the judgment. That is a matter the court is functus officio about. The decree was thus, partially executed. It cannot be undone, twenty years later, particularly having settled the issue that the land was held in trust and the parties to the suit were settled on the respective portions on the suit land as they were. 8. If the Defendant were to argue differently, then the question that remains is, which sharing of the suit land was done? Or in accordance with what criteria was the sharing of the land (to be) done? It could only be as per the basis they were declared by the Kisii High Court to have been settled by the late mzee Alexius Abuto. That is a simple open truth that the defendant should agree to and shun greed. 9. The Judgement by Justice Mbaluto in Kisii HCC 113 of 1988 where the Defendant had sought to evict the Plaintiff and the other beneficiaries of the suit land and the court found that the land was held in trust by the Defendant, and that remains to be so up to the date of this judgment. I say so because I have been called upon to declare the trust ended. The trust remains in force to date. Can the claim on that limb for a declaration **to dissolve trust created by the decree dated 20th December 1996 in Civil Suit No. 113 of 1998** be said be said to be time barred? In my humble view it is not. 10. The defendant also sought to rely on the Limitation of Actions Act, in regard to the cause of action being time barred. However, the cause of action arising from a trust, the same cannot be considered time barred in the circumstances of this case and the law. The purpose of the suit is to enforce the trust and bring it to and end, and not to recover land in terms of Section 7 of the Limitation of Actions Act. 11. Additionally, Section 20 of the Limitation of Actions Act provides as follows; **None of the periods of limitation prescribed by this Act apply to an action by a beneficiary under a trust, which is an action—** **(a) in respect of a fraud or fraudulent breach of trust to which the trustee was a party or privy; or** **(b) to recover from the trustee trust property or the proceeds thereof in the possession of the trustee or previously received by the trustee and converted to his use.** **(2) Subject to subsection (1), an action by a beneficiary to recover trust property or in respect of any breach of trust (not being an action for which a period of limitation is prescribed by any other provision of this Act) may not be brought after the end of six years from the date on which the right of action accrued:** **Provided that the right of action does not accrue to a beneficiary entitled to a future interest in the trust property, until the interest falls into possession.** **(3) A beneficiary against whom there would be a good defence under this Act may not derive a greater or other benefit from a judgment or order obtained by another beneficiary than he could have obtained if he had brought the action and this Act had been pleaded in defence.** 1. Section 28 of the Land Registration Act recognizes trusts as one of the overriding interest which though not reflected in the register, registered land is subject to. It provides as follows; **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-** **a.** **…..** **b.** 1. **Trusts including customary trusts.** 2. In **Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others (Civil Application 68 of 2019) [2022] KECA 494 (KLR)**, the Supreme Court explained that:- **85. While sections 25, 26 and 28 of the Land Registration Act 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 therefore, the limitation of the right to property is provided under law, and includes a constructive trust.** **… Constructive trusts could arise in various circumstances, including in land sale agreements. A trust was an equitable remedy which was an intervention against unconscionable conduct. Where the circumstances of the case were such that it would demand that equity treated the legal owner as a trustee, the law would impose a trust. It was imposed by law whenever justice and good conscience required it. A constructive trust can be imported into a land sale agreement to defeat a registered title.”** 1. The Court of Appeal in the case of **Twalib Hatayan & Another-v- Said Saggar Ahmed Al-Heidy C.a. Civil Appeal No 51 of 2014 [2015 eKLR]** after adopting the definition of a trust as defined in Black’s Law Dictionary 9th Edition, the Court went on to state as follows: **Trusts are created either expressly (by the parties) or by operation of the law. An express trust arises when the trust property, it’s purpose and beneficiaries have been clearly identified (see Halsbury’s Law of England Vol. 16 Butterworth’s 1976 at para 1452).** 1. In my humble view the dispute herein falls under Subsection 1(a). There is a blatant breach of trust demonstrated by the Defendant herein. Furthermore, the Defendant’s claim that the execution of the decree is being made through the backdoor is neither here nor there. The cause of action herein is breach of a trust that was created by the court and that trust has never been brought to an end. Its ending can only be brought about by a separate suit since that was not an issue in the previous suit, being Kisii High Court No. 113 of 1988. In any event what that suit did was only to declare the rights of the parties. Those rights subsist. If one or more is breached that does not disentitle the innocent parties from approaching the court for a remedy. The court hereby declares the trust to be ended or to have come to an end from now henceforth. 2. Again, whereas the defendant contends that the Plaintiff was not a beneficiary of the said estate, the plaintiff produced a grant of letters of administration indicating that he is indeed the son of Jeconia Odoyo Mbeche who was a beneficiary recognised in that judgement. Jeconiah Mbeche was one of the parties declared a beneficiary under the trust the Court created. Be that as it may, or that notwithstanding, the issue of determining the beneficiaries is not before this court, and was settled in the High Court matter and I have no jurisdiction to determine it. 3. It goes without saying, by the same token, that the second relief in Prayer 2 of the Amended Originating Summons that this Court does appoint **FRANCIS ODOYO MBECHE, MAUREEN ACHIENG and LILIAN AKOTH OCHIENG in place of the Defendant for the purposes of distribution of the trust property herein LR No. SUNA EAST/MANYATTA/173** cannot succeed since I have no jurisdiction to determine disputes over Succession disputes and distribution of estates of deceased persons: I down my tools in regard to that relief. I am guided by the Court of Appeal decision of **Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment)**, wherein the court emphasized on the importance of determining the question of jurisdiction on priority. In it the court held that: *‘‘30. With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction...* *31. It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court. A party who fails to question the jurisdiction of a court may not be heard to raise the issue after the matter is heard and determined.* *32. I can see no grounds why a question of jurisdiction could not be raised during the proceedings. As soon as that is done, the court should hear and dispose of that issue without further ado.’’* 1. I therefore have no jurisdiction in that issue and decline to be involved in it. 2. The issue this court is supposed to understand and determine is where there is a parcel if land owned by a party, and if so, how he got to be the owner, and how the facts of this case apply to the ownership. I find that the land is owned by the Defendant. How does he remain the owner to date? He does so by virtue of the decree issued in Kisii HC Civil Suit No. 113 of 1988 which declared him to be owning it in trust for the Defendants therein. The land was to be subdivided into four equal parts or as per the respective portions mzee Alexius Abuto had given his then family. I refer still to Sections 20 of the Limitation of Actions Act and Section 7 of the Act and also on limitation of trust. Section 28 of the Land Registration Act comes in to provide for customary trusts as discussed above. The cases referred to above on this issue of trusts remain binding on me, and I have no reason to distinguish them in any way. 3. In any event the Defendant shoots himself on the foot by demonstrating that he either is too greedy to see the truth of what the High Cough declared or deliberately refusing to accept the decree of the court. He argues that the Plaintiffs are not members of the Alexius Abuto family hence cannot claim from the estate as beneficiaries. What entitles him more to claim from that estate, if at all, than the rest when he is not a son of the late Abuto. 4. If the Defendant were to trudge on that road that the applicants who were found to be members of the family of Alexius Abuto are not part of the same and should not claim from the Estate, he too is not, and should not claim. He then he should return the suit land to the Estate, quit with his family from it and leave it to the son of Alexius Abuto. He cannot abate and reprobate. On the contrary to his assertion, the fact in issue herein is that the parties are not claiming the suit land from Alxius Abuto or his Estate but the from the person whom the court in Kisii High Court Civil Case No. 113 0f 1988 found that he fraudulently registered himself as the sole owner of the entire family land, the suit land. It is him who now purported to owned it specifically as his yet it is held in trust. 5. Moreover, this Court finds that the Defendant remained a trustee of the suit land as was declared by the High Court. Thus, any parts he and his family occupied to a larger extent than he was entitled were so occupied by virtue of his position as trustee and he cannot therefore claim that the rest of the family cannot recover them. His occupation thereof was by permission until the trust ends. 6. Given that the presence of a trust has been established, arising from the judgement of the court, the pertinent question before this court is whether the Defendant acted in accordance with the trust and sub divided the land among the four families that were to benefit from it. From the evidence of record, the testimonies and the defendants’ submissions, it is evident that he did not distribute the land as per the requirements of the trust. He does not dispute the validity of the trust either. 7. The Defendant also claimed that he had absolute rights over the suit land as he was the registered owner of the same. However, being that he was a trustee, this position is untenable. The transfer and registration of land that is subject of a trust into the name of a different proprietor under the Land Registration Act, does not therefore extinguish the rights of the beneficiary of the trust. Such a transfer would also not relieve the new registered proprietor of the duties or obligations as a trustee over the land. 8. In this regard, the Supreme Court settled the question regarding customary land held in trust in **Kiebia v M’lintari & another [2018] KESC 22 (KLR)**, inter alia as follows: “**Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the rights to which a registered proprietor, is subject under the proviso to Section 28 of the Registered Land Act. Under this legal regime, (now repealed), the content of such a trust can take several forms. For example, it may emerge through evidence, that part of the land, now registered, was always reserved for family or clan uses, such as burials, and other traditional rites. It could also be that other parts of the land, depending on the specific group or family setting, were reserved for various future uses, such as construction of houses and other amenities by youths graduating into manhood. The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor.”** 1. The trustee has a fiduciary duty and obligation to the beneficiary of the trust. A fiduciary is defined in Black’s Law Dictionary 10th Edition as: **“Someone who is required to act for the benefit of another on all matters within the scope of their relationship; one who owes to another the duties of good faith, loyalty, due care and disclosure.”** 1. It is therefore my considered view that the Plaintiffs’ case is merited. The Defendant did not carry out his fiduciary duties as a trustee and has completely disregarded the same. The only recourse is that this court allow the Plaintiffs’ claim on this issue, and I have done so above. The Defendant is under a duty to transfer the portions of the suit land to the Plaintiff and the other beneficiaries. 2. The upshot of the foregoing is that the Plaintiffs’ case succeeds and I accordingly enter judgment in their favour against the Defendant in the following terms: 3. **A declaration be and is hereby issued that this Court hereby dissolves forthwith the trust was created by the decree of the Court issued on 20th December 1996 in Kisii High Court Civil Case No. 113 of 1988 in respect of land parcel No. Suna East/Manyatta/173.** 4. **The Defendant shall within 45 days of the delivery of this judgment surrender to the Land Registrar Migori the original title deed to the land parcel No. Suna East/Manyatta/173 and execute all relevant documents to facilitate the demarcation thereof so that four equal portions are surveyed and registered in the names of the estates of JECONIA ODOYO MBECHE, TOBIAS OCHIENG and PATRICK OMER and the Defendant.** 5. **In default, the Deputy Registrar of this Court shall execute all such documents on behalf of the Defendant and the Land Registrar and Surveyor Migori shall proceed as directed notwithstanding the absence of the original title deed to the Land parcel No. Suna East/Manyatta/173.** 6. **It is further decreed that if there is to be any burial of the deceased son who has not been buried, his body is to be interred in the portion of land to be ascertained and specifically designated to be for the family of the Defendant, more specifically again the quarter of the land in issue that shall be ascertained and established to be the only one for the Defendant and not on the remaining three quarters. The burial to take place upon this specific ascertainment.** 7. **The parties herein being family members, each party shall bear its own costs.** **JUDGMENT Dated, Signed and Delivered virtually via the Teams Platform this 20th day of May 2026.** **HON. DR. IUR NYAGAKA** **JUDGE** **From 15: 50 hours, in the presence of,** E. Awino Advocate for Defendants Plaintiffs present in open court Defendant in open court