https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4465

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT BUSIA ELC CASE NO. E009 OF 2025 MILLICENT PAULINE OKECH…………...……………....…..1ST PLAINTIFF MICHAEL CLEMENT OKECH………………………….....….2ND PLAINTIFF ALLAN BOSCO OKECH……………………………….…..…...3RD PLAINTIFF LINDA N. OKECH…………………………………………………4TH PLAINTIFF SYLVIA EDNA OKECH…………………………………………..5TH PLAINTIFF MERCY DONA OKECH……………………………………….…6TH PLAINTIFF VERSUS WILLIAM BARRETE OKECH……………………………….…… DEFENDANT JUDGMENT 1. By a plaint dated 19th September 2024, the plaintiffs instituted the instant suit seeking judgment against the defendant for: - a) A declaration that the defendant holds the parcel of land known as LR NO. MARACHI/ELUKHARI/2589 in BUSIA ELC LC E009 OF 2025 – JUDGMENT 1 | P a g e trust for himself and them in equal shares; b) A declaration that the defendant’s right and interest in a portion of the parcel of land known as L.R NO. MARACHI/ELUKHARI/2589 has become extinguished by operation of law in their favour; c) An order that the parcel of land known as L.R MARACHI/ELUKHARI/2589 be subdivided into seven 7 equal portions and the portions be transferred and registered in the names of the parties accordingly. d) The Deputy Registrar of this court be authorized to execute transfer documents in the event that the defendant declines. e) Costs of the suit. 2. As can be discerned from the averments/ contentions in the plaint, the plaintiffs suit is premised on the grounds that the suit property was created from the parcel of land known as L.R MARIACHI/ELUKHARI/663 which was family land; that the suit and is currently registered in the name of the defendant who is the plaintiffs’ sibling/relative; that registration of the defendant as the proprietor of the suit land is subject of a trust in favour of the plaintiffs and that the plaintiffs have been in open, peaceful, continuous, uninterrupted, exclusive possession of the suit land BUSIA ELC LC E009 OF 2025 – JUDGMENT 2 | P a g e since they were born, a period of over 12 years. 3. Claiming that the defendant’s rights and interest over a portion of the suit land has been extinguished by their adverse possession thereof, the plaintiffs urge the court to grant them the orders sought. 4. Despite having been served with summons to enter appearance and with a hearing notice, the defendant neither entered appearance nor attended court for hearing of the suit. Consequently, the suit was heard without participation of the defendant. 5. When the suit came up for hearing (formal proof), the plaintiff Millicent Pauline Okech (PW1) rehashed their pleaded cases as follows: - “...the plaintiffs and defendants are siblings. Our parents were Michael Okech and Mary Agutu Okech. They owned land parcel Marachi/Elukhari/663. My father inherited the land from his father. BUSIA ELC LC E009 OF 2025 – JUDGMENT My father died in 1992 while the land was still in his 3 | P a g e name. Succession was done and the land was transferred to my uncle Alexandra Martin Oyosa. My mother Mary Agutu Okech and my brothers William Barette Okech (the defendant herein). The land was later subdivided into parcel No. 2589, 2590 and 2591. My brother (defendant) ended up with parcel number 2589. He was to hold the land in trust for the children of Michael Okech (my father). Although this is not captured in the green card, this was ancestral land which initially belonged to my grandfather who passed it to my father, who passed it to my brother. Further, we do not know any other land as we were brought up there. Our parents, uncles and one brother are buried on parcel No. 2589. Several meetings have been held with elders to try and resolve the dispute between us and our brother and the elders have also held that our brother holds the land in trust for us.” 6. PW1 produced the register for L.R NO. MARACHI/ELUKHARI/663 as Pexbt 1; register for L.R No. MARACHI/ELUKHARI/2589 as Pexbt 2 and a letter by the Chief Mariachi East location, dated 12th March 1993 as Pexbt 3. She urged the court to grant them the orders sought in the plaint. BUSIA ELC LC E009 OF 2025 – JUDGMENT 4 | P a g e 7. At close of hearing, the plaintiffs filed submissions dated 20th April 2026 in which they have given an overview of their pleaded case and evidence and submitted/addressed the Court as follows; - “…it is evident from the exhibits, copy of the register L.R Marachi/Elukhari/2589 that the same is registered in the name of the defendant-William Barrete Okech. This land L.R Marachi/Elukhari/2589 resulted from partition of 663 which was registered in names of Okech Oyosa, before it was transferred on transmission to Alexander Martin Oyosa, Allan Buseno Okech and William Barret Okech. Okech Oyosa of the parties herein, acquired land parcel L.R No. Marachi/Elukhari/663 from his father (the grandfather of the parties) on first registration. Thus, the land is ancestral land. Section 28 of the Land Registration Act, Cap 300 (of 2012) provides: “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- BUSIA ELC LC E009 OF 2025 – JUDGMENT 5 | P a g e a) Spousal rights over matrimonial property; b) Trusts including customary trusts; c) ….. d) ….. e) ….. f) ….. g) …… h) ….. i) ….. j) ….. It follows from the provisions of the Land Registration Act including section 28, that customary trust is recognized by statute.” 8. The plaintiffs have made reference to the decision of the Supreme Court in the Case of Kiebia v Mlintari & another (Petition 10 of 2015) (2018) KESC 22 (KLR) (5 October 2018) (Judgment) and the evidence of PW1 and submitted that they have shown and proved acts which would show trust as follows: - “The defendant got the land from their father, who got it from their grandfather; the homestead of their parents is erected on the land; that their parents, their grandparents, their brother and other relatives BUSIA ELC LC E009 OF 2025 – JUDGMENT are buried on the land; all ceremonies including 6 | P a g e weddings, dowry payment are held in the homestead on the land; they were all borne, brought up and reside on the land; the plaintiffs were heirs/beneficiaries in the succession proceedings of their late father and that there have been several meetings in which it was resolved the land belongs to all of them.” 9. Asserting that they have proved their case on a balance of probabilities, the plaintiffs urge the court to grant them the orders sought. 10. I have read the pleadings, the uncontroverted evidence adduced in respect thereof and the submissions filed by the plaintiffs. The sole issue arising from the pleadings, the evidence and the submissions is whether the plaintiffs have proved their pleaded case on a balance of probabilities. 11. Concerning that issue, upon considering the uncontroverted evidence adduced in this suit, which evidence shows that the suit land is family land registered in the name of the defendant, I find and hold that the plaintiffs have made up a case of being granted the orders/prayers sought which I hereby grant them in the 7 | P a g e BUSIA ELC LC E009 OF 2025 – JUDGMENT following terms: - i) A declaration be and is hereby made that the defendant holds the parcel of land known as NO. MARACHI/ELUKHARI/2589 in trust for himself and the plaintiffs in equal shares; ii) An order be made and is hereby made that the parcel of land known as L.R MARACHI/ELUKHARI/2589 be subdivided into seven (7) equal portions and the portions/subdivisions be transferred and registered in the names of the parties accordingly. iii) The Deputy Registrar of this Court be and is hereby authorized to execute transfer documents in the event that the defendant declines to execute them. iv) I make no order no order as to costs. Judgement dated, signed and delivered at Nyahururu this 8th day of July, 2026 through Microsoft Teams L. N. WAITHAKA JUDGE BUSIA ELC LC E009 OF 2025 – JUDGMENT 8 | P a g e In the presence of: Mr. Fwaya for the Plaintiff N/A for the Respondent Court Assistant; Bedan BUSIA ELC LC E009 OF 2025 – JUDGMENT 9 | P a g e