Owere & another v Migazi & another (Both Sued as the Legal Administrators of the Estate of Ishmael Migasi (Deceased)) (Environment and Land Appeal E039 of 2025) [2026] KEELC 5097 (KLR) (14 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT HOMABAY** **ENVIRONMENT AND LAND APPEAL NO. E039 OF 2025** **ORACHA OWERE..............................................................1ST APPELLANT** **ALICE WERE** (Suing as the legal administrator of the estate of CHARLES OGO OWERE (DECEASED)**..........................2ND APPELLANT** **VERSUS** **MOHAMMED MAGANDA MIGAZI** **MUTHWALIB ISHMAEL MIGAZI (**Both sued as the legal administrators of the estate of ISHMAEL MIGASI (DECEASED)**.....................................RESPONDENTS** **JUDGMENT** ***(Being an Appeal against the whole judgment of Hon. JACINTA A. ORWA Delivered on the 23rd day of October 2025 in Homabay Chief Magistrate Court ELC Case No. E051 OF 2023)*** 1. Through Amended Plaint dated 6th May 2024, the Plaintiffs now the Respondents instituted a suit in the lower court being Homabay CMC ELC Case No. E051 OF 2023 seeking judgment against the Defendants now the Appellants, for:- 2. A declaratory order that the two defendants hold the portions registered as Land Parcel Nos. Kanyada/Kanyabala/4585 and 3533 respectively in trust for the family of ISHMAEL MIGASI who still resides thereon to date after 81 years. 3. A declaratory order that the family of ISHMAEL MIGASI have by their occupation overriding interest over the portion measuring approximately 4.20 acres and should be registered as the proprietors thereof. 4. An order of rectification of the register by deleting all the subdivisions created from Land Parcel No. Kanyada/Kanyabala/1008 measuring 10.8 hectares being Land Parcel Nos. 3529, 3530, 4585, 3532 and 3533 and resurveying the same so that a portion measuring 1.68 hectares is registered in the names of MOHAMMED MAGANDA MIGAZI and MUTHWALIB ISHMAEL MIGAZI to hold in trust for the family of Ishmael Migasi and a portion measuring 9.12 hectares to be divided for the family of Owere such as the defendants and other next-of-kin. 5. Costs of the suit together with interests thereon as provided in Section 27(2) of the Civil Procedure Act. 6. Such further or other alternative reliefs as this Honourable Court deems fit to grant. 7. As it can be discerned from the averments in the Plaint, the Plaintiffs case is premised on the ground that at all times material to the suit, the 1st defendant now the appellant is registered as the sole proprietor of Land Parcel No. Kanyada/Kanyabala/4585 while the 2nd defendant now the appellant is registered as the sole proprietor of Land Parcel No. Kanyada/Kanyabala/3533 which parcels of land are some of the subdivisions of Land Parcel No. Kanyada/Kanyabala/1008 on which the family of Migasi resides. 8. The Plaintiffs states that before land adjudication, Land Parcel No. Kanyada/Kanyabala/1008 belonged originally to Oware the father to the Defendants but later in the year 1942 Oware invited Ishmael Migasi to his land and settled him on a portion of his land with each family having distinct homesteads. That the family of the Plaintiffs have lived on the land parcel for many years about eight (8) generations and terming their stay as customary tenancy which has created an overriding interest. 9. The Plaintiff laments that at the time of adjudication, the family of Ishmael Migazi was not issued with a title number but instead one number was issued and the Land Parcel No. Kanyada/Kanyabala/1008 was registered in the names of LAWRENCE MBAYE, ORACHA OWERE and OGO OWERE as proprietors. The proprietors. The Defendants in 2014 caused subdivision on the Land Parcel No. Kanyada/Kanyabala/1008 into five portions namely Land Parcel No. Kanyada/Kanyabala/3529, 3530, 3531, 3532 and 3533. Land Parcel No. Kanyada/Kanyabala/4585 and 3533 registered in the names Oracha Owere and Charles Ogo Owere and they fall within the homesteads of the Plaintiffs’ family. 10. The Plaintiffs stating that their long stay and possession on Land Parcel No. Kanyada/Kanyabala/1008 has created an overriding interest which they term it as customary trust. 11. The Defendants filed a Statement of Defence dated 21st February 2024 in which they denied all the allegations levelled against them and contend that they are indeed the registered owners of the suit property and enjoy exclusive rights to the suit property. 12. The Defendants explained that due to necessity, the late Owere gave a portion of the suit property to the late Ishmael Migasi since he was a foreigner and was placed in care of the late Owere who was then the village elder and the same was temporary pending the war that was ongoing in their Country, Tanzania. 13. The Defendants further state that the said occupation of the said portion of land was limited and conditional on grounds that it was agreed by the late Migazi and the late Owere that upon Migazi establishing himself, he was supposed to move out of the suit property together with his family and that is why during land adjudication the late Owere did not bother to subdivide his land to the said Migazi. 14. The Defendants further contend that as a result of the said agreement, the other children of the late Migazi moved out of the suit property including the Plaintiffs herein who have since moved out of the suit parcel and hence there was no customary tenancy against the suit land as claimed by the Plaintiffs. That at the time of registration, the late Migazi was still alive and was aware of the exercise and never raised any objection to the said registration and that hence the Plaintiffs cannot claim that they were not aware of the same. 15. The Defendants prayed that the Plaintiffs’ suit be dismissed with costs. 16. The Plaintiffs in return filed a Reply to Statement of Defence dated 12th March 2024 where they contended that their father the late Ismael Migasi was not present when demarcation officers came on ground as he was finishing in Nanga. 17. When the case came up for hearing, the PW1, Mohammed Maganda Migazi, relied on his witness statement dated 6th May 2024 and List of Documents dated 16th October 2023 and a Further list of Documents dated 6th May 2024, after which they were adopted as his evidence in chief. He prayed to be given the land and that he was born on the land. He also prayed for costs. 18. During cross-examination by Miss Obwanda, PW1 indicated that he resides on a different parcel of land, not the suit land but his son Haroon stays on the land. He stated that his father was buried on the suit land and he claims 4 acres of the suit land but did not have a surveyor’s report to prove that his late father is entitled to 4 acres. He further stated that the land was given to his father by the owners of the suit land. He also indicated that they never filed any objection to registration of land in the name of Owere and assignees. He concluded by stating that the registration of the defendants as owners of the suit land was fraudulent and agreed that he has not file a suit on fraud against the defendant. 19. The PW2, Ismael Migazi Muthulib, relied on his witness statement dated 12th March 2024 which was adopted as his evidence in chief. 20. During cross-examination by Miss Obwanda, PW2 stated that Owere Jaber was their family friend and was not aware of the land adjudication process. He still resides on the disputed land. That as a family they were not aware the land was not registered in their name until Horoon, PW1’s son was arrested and charged. Some of his brothers bought land somewhere else and settled on and those not residing on the suit land are dead. Concluded by stating that the land was acquired in a fraudulent manner. During re-examination, he stated that the houses on the land will confirm that a person is residing on the land. 21. The PW3, Harrison Mbai, relied on his witness statement dated 14th February 2024 which was adopted as his evidence in chief. 22. During cross-examination by Miss Obwanda, PW3 stated that he was present during land adjudication. The original owner of the land Owere died in 1962 and was not present during land adjudication. 23. The Plaintiffs closed their case and the Defendants called two witnesses. 24. The DW1, Japheth Oracha Owere, relied on his witness statement dated 21st February 2024 and List of Documents dated 21st February 2025 after which they were adopted as his evidence in chief. He prayed that the land be vacated. He stated that he was present during land adjudication and Migazi’s family were present. 25. During cross-examination by Mr. Okoth, he stated as follows; “......He is aware of sojourners. They are not indigenous people of that locality. Sojourners were accommodated by indigenous people of the locality due to friendship and family cordial relationship. My father was called Owere son of Jaber. My father gave land to Ishmael on friendly basis. Since 1949 to date, only a person is residing on the land of Owere. He is Muthualib Ishmael. He is the son of Ismael Migazi. It is long time from the time I was born to date. I am 70 years and above. My father left behind no documents to cause the family of Migazi to be evicted. Migazi was buried on the land. Adjudication process occurred when my father had passed on. 1. In re-examination, DW1 stated that he saw the family of Migazi on the land once he became age about 10 years and above. He cannot recall the year his father gave land to Migazi. 2. The DW2, Alice Otieno Owere, relied on his witness statement dated 21st February 2024 which was adopted as his evidence in chief. 3. During cross-examination by Mr. Okoth, DW 1 stated that her husband was Charles Owere, now deceased. Owere Jaber was deceased when he was married to her husband. The family of Ismael Migazi resides on the land. She found them on the land. 4. In re-examination, DW2 stated that the family of Migazi are no longer residing on the land in question. 5. The DW3, Zephaniah Ochieng Onyango, relied on his witness statement dated 21st February 2024 which was adopted as his evidence in chief. Indicated that Owere’s family is related to them. 6. During cross-examination by Mr. Okoth and stated as follows “.........It is our relatives who told us about Owere’s arrival to the suit land. They never told us that Ismael’s family will be chased away once they died. I know of sojourner. They are in two categories. One scenario is a person who is not related to the indigenous people but were adjudicated as when of the land they occupied. It is true a sojourner can get a title as where he resides.” 7. At close of hearing parties filed submissions. 8. Upon considering the case urged before her, the learned trial magistrate entered judgment in favour of the Plaintiffs in the following terms: - “.... Having analyzed the evidence on record and the Plaintiffs having established family ties with family of Owere Jaber (Deceased), I find that the Plaintiffs have proved their case against the Defendants on a balance of probabilities hence entered judgment in their favour but against the Defendants as follows; 1. The Defendants herein are holding in trust portions of registered land parcel numbers Kanyada/Kanyabala/4585 and 3533 measuring approximately 4.20 acres in favour of Estate of Ishmael Migasi (Deceased). 2. A Declaration that the estate of Ishmael Migasi (Deceased) is entitled to be registered as owners of portions of land Kanyada/Kanyabala/4585 and 3533 they are in occupation of by virtue of customary trust. 3. An order of rectification of the register by land Registrar Homabay to delete all the subdivisions created from parcel number Kanyada/Kanyabala/1008 measuring 10.8 ha being parcel numbers 3529, 3530,4585,3532, 3533 and resurvey of parcel number Kanyada/Kanyabala/1008 be conducted to the extent that a portion measuring approximately 1.68 ha in occupation by family of Ishmael Migasi be registered in the name of estate of Ishmael Migasi and a portion measuring 9.12 ha to be divided for the family of Owere such as the Defendants and other next of kin. 4. The Plaintiffs to bear the re-survey charges/costs of the land Registrar and Surveyor Homabay County. 5. Each party to bear own costs of the suit. 6. Dissatisfied with the decision of the learned trial magistrate appealed to this court on the ground that the learned trial magistrate erred both in law and in fact by:- 7. Applying the wrong interpretation with regards to customary trust thereby reaching a wrong conclusion that the Respondents had proved their case to the required standard. 8. Holding that the parcel number Kanyada/Kanyabala/1008 was held in trust for the family of Ishmael Migazi. 9. Misapprehending the totality of the evidence on record and thus arrived at an erroneous conclusion by failing to isolate, decipher and or discern the existence of any intervening circumstance which could underpin the suit land being registered in the name of the appellants to hold in trust for the respondents. 10. Failing to appreciate the respondents herein were present and actively participated in the adjudication process which led to the registration of the appellants as the registered owner of the said land and did not object. 11. Failing to consider material evidence which was extremely weighty and of significant importance which inferred that the said land was family land belonging to the family of Owere and there is no family relation either primary or secondary between the two families to warrant any customary trust the respondents themselves having confirmed that they came from a place called Yimbo in Siaya County. 12. Failing to consider and ignoring to record the evidence by the parties that the respondents only came to stay in the said land temporary on account that they did not have any land of their own and at the time the family of Owere had already settled in the said suit land and their father by virtue of being a village Elder was requested by the chief then to host them until the war had ended. 13. Shifting the burden of proof from the respondents to the appellants to show that the land was not trust land. 14. Failing to properly and exhaustively evaluate the evidence on record. 15. The Appellant pray that the Appeal be allowed. Judgement of the trial court be set aside. Costs of the Appeal and those of the lower court be awarded to the appellant. 16. The Appeal was disposed of by way of written submissions which this court has duly considered. 17. This being a first appeal, this Court is enjoined to re-evaluate, re-analyse and reconsider the entire evidence that was tendered before the trial court and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and must therefore accord due allowance to that disadvantage. 18. The duty of a first appellate court was concisely stated in **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123**, where the Court held: "An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect." 1. Guided by the foregoing principles, this Court has carefully reconsidered the pleadings, the oral and documentary evidence tendered before the trial court, the judgment appealed against, the grounds of appeal and the submissions by counsel. 2. The Court will therefore determine this appeal on the basis of its own independent evaluation of the entire record and the applicable law and the following primary issues arise for determination; 3. **Whether the Respondents proved the existence of a customary trust over Land Parcel No. Kanyada/Kanyabala/1008 (now subdivided into Land Parcel Nos. Kanyada/Kanyabala/4585 and 3533) to the requisite standard of proof.** 4. **Whether the judgment of the trial court should be upheld, varied or set aside, and who should bear the costs of the appeal.** 5. **Whether the Respondents proved the existence of a customary trust over Land Parcel No. Kanyada/Kanyabala/1008 (now subdivided into Land Parcel Nos. Kanyada/Kanyabala/4585 and 3533) to the requisite standard of proof.** The central question in this appeal is whether the Respondents discharged the burden of proving that the Appellants held the suit land in customary trust for the estate of the late Ishmael Migasi. It is not disputed that the original parcel, Land Parcel No. Kanyada/Kanyabala/1008, was registered in the names of the Owere family and was subsequently subdivided into several parcels, including Land Parcel Nos. Kanyada/Kanyabala/4585 and 3533, which are the subject of the dispute. What is contested is whether the Appellants' registration was subject to a customary trust in favour of the Respondents. 1. The Respondents' case before the trial court was grounded on the assertion that the late Owere Jaber settled the late Ishmael Migasi on a portion of the suit land in or about 1942, where the late Ishmael Migasi established his homestead and whose descendants have remained in occupation for over eighty years. They contended that such prolonged occupation, coupled with the burial of their deceased on the land, created a customary trust in their favour. 2. The Appellants, on the other hand, maintained that Ishmael Migasi was a sojourner from Uganda who was accommodated by the late Owere out of friendship. According to them, the occupation was merely permissive and did not confer any proprietary or beneficial interest capable of constituting a customary trust. 3. At the outset, it is important to discuss the doctrine of what a trust is... 4. The Black’s Law Dictionary, 8th Edition has dened the term “trust” as follows: “The right, enforceable solely in equity, to the beneficial enjoyment of property to which another person holds the legal titles; a property interest held by one person (the trustee) at the request of another (the settlor) for the benefit of a third party (the beneiciary).” 5. There are many kind of trusts recognized in law, with the most common in land being customary trustsand constructivetrust.The customary trust does not arise in this case because the suit property is not ancestral land. 6. Although the Supreme Court in Kiebia v M'Lintari & another (Petition No. 10 of 2015) [2018] KESC 22 (KLR) discussed the doctrine of customary trust within the framework of section 30(g) of the repealed Registered Land Act, Cap. 300, it is important to note that the Registered Land Act was repealed by the Land Registration Act, No. 3 of 2012. The repeal, however, did not abolish the doctrine of customary trust. Rather, the Land Registration Act preserved overriding interests under section 25(b), expressly recognizing **trusts, including customary trusts,** as overriding interests affecting registered land. 7. Therefore, references by the Supreme Court to section 30(g) of the repealed Registered Land Act must be understood in their historical context. The applicable statutory provision in the present dispute is section 25(b) of the Land Registration Act, 2012, which preserves customary trusts as overriding interests binding upon a registered proprietor without the necessity of registration. 8. Shedding light on the transition to the Land Registration Act from the Registered Land Act Registered (now repealed), the Supreme Court in Kiebia’s case expressed itself as follows; “[57] With the repeal of the Registered Land Act (Cap 300), Parliament enacted the Land Registration Act No. 3 of 2012. The provisions of Section 28 of the former, including the proviso thereto, were re-enacted as Section 25 of the latter; while the provisions of Section 30 of Cap 300 were re-enacted as Section 28 of the Land Registration Act. However, Parliament introduced two new categories of overriding interests, the first category is what are now called “spousal rights over matrimonial property”; while the second category is what are, rather curiously called “trusts including customary trusts”. Even more curious, is the fact that “the rights of a person in possession or actual occupation of land to which he is entitled in right only of such possession or occupation,” as earlier provided for under Section 30 (g) of the Registered Land Act, are no longer on the list of overriding interests under Section 28 of the Land Registration Act. [58] What are we to make of these changes? Several interpretations are plausible. It is now clear that customary trusts, as well as all other trusts, are overriding interests. These trusts, being overriding interests, are not required to be noted in the register. However, by retaining the proviso to Section 28 of the Registered Land Act (now repealed), in Section 25 of the Land Registration Act, it can be logically assumed that certain trusts can still be noted in the register. Once so noted, such trusts, not being overriding interests, would bind the registered proprietor in terms noted on the register. The rights of a person in possession or actual occupation of land, as previously envisaged under Section 30 (g) of the Registered Land Act, have now been subsumed in the “customary trusts” under Section 25 (b) of the Land Registration Act. Thus, under the latter Section, a person can prove the existence of a specific category of a customary trust, one of which can arise, although not exclusively, from the fact of rightful possession or actual occupation of the land…” 9. In Alan Kiama v. Ndia Mathunya & Others, C.A 42/1978, Madan J.A indicated that ***“What meaning is to be given to Section 30 (g)? The rights under customary law may be argued to be extinguished by Section 28… It must refer to equitable rights, it cannot be otherwise, it has to be so to be sensibly interpretable. Overriding interests which arise in right only of possession or actual occupation without legal title are equitable rights which are binding on the land, therefore on the registered owner of it. Under Section 30(g) they possess legal sanctity without being noted on the register; Overriding interests which so exist or are so created are entitled to protection because they are equitable rights even if they have a customary law flavor… Equity always protects the just rights of the oppressed. Equity always prevents an injustice being perpetrated. Equity sanctifies the administration of justice…”*** 1. The legal position was rightly captured by the Supreme Court in *Kiebia v M'Lintari & another* (Petition No. 10 of 2015) [2018] KESC 22 (KLR), where, at paragraph 48, the Court posed the following pertinent question: **“If the rights of a person in possession or actual occupation of Trust land before registration, are not rights arising under African customary law, what are they? Or to put it differently, if the rights of a person arising under African customary law as evidenced by his/her being in possession or actual occupation of the land are not overriding interests under Section 30 (g) as decreed in Obiero v. Opiyo, what are they? Madan J.A, inappropriately termed them “equitable rights” even if they have “a customary flavour”, while Nyarangi J.A termed them “valid rights”.** 1. The supreme court in Kiebia’s case further noted that it is customary law and practice that clothes the rights of a person in possession or actual occupation, with legal validity. If customary law and practice, does not recognize such possession or actual occupation, then it cannot be a right to which a person is entitled. It further emphasised what Madan J.A said in the case of Alan Kiama that; ***“..…they (meaning, the rights in possession or actual occupation) are not subject to interference or disturbance such as by eviction save where inquiry is made and they are not disclosed. In this case, the respondents were in possession and actual occupation of the land and they also cultivated it to the knowledge of the appellant. He made no inquiry, any inquiry would have been superfluous; he had himself lived on the land together with the respondents for a time and knew that they cultivated it.”*** 1. In Mungai Njoroge & another v Kiarie Njoroge & another [2020] KECA 453 (KLR), the respondents occupied their respective parts of the suit land for many years and cultivated crops on the suit land which they considered and inherited as their home/land. The Court established that the 1st appellant could not in law divest them of their rightful inheritance. 2. In the present case, the Plaintiffs states that before land adjudication, Land Parcel No. Kanyada/Kanyabala/1008 belonged originally to Oware the father to the Defendants but later in the year 1942 Oware invited Ishmael Migasi to his land and settled him on a portion of his land with each family having distinct homesteads. The Defendants and their witnesses supported this averment. In particular, DW1 stated that “......My father gave land to Ishmael on friendly basis. Since 1949 to date, only a person is residing on the land of Owere is Muthualib Ishmael. He is the son of Ismael Migazi. It is long time from the time I was born to date. I am 70 years and above. My father left behind no documents to cause the family of Migazi to be evicted. Migazi was buried on the land.” DW2 on the other hand stated that the family of Ismael Migazi resides on the land. She found them on the land. Lastly, DW 3 said “...It is our relatives who told us about Owere’s arrival to the suit land. They never told us that Ismael’s family will be chased away once they died”. 3. In the case of **Peter Gitonga Vs Francis Maingi M’Ikiara Meru HC.CC 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” (emphasis is mine) 1. It is important to establish whether a trust was envisaged as per the set of facts provided before this court. The evidence is uncontroverted that the Respondents and their predecessors have been in actual, open and uninterrupted occupation of the suit land for over eighty years. They established permanent homesteads thereon, buried their deceased family members on the land, and continue to occupy the same to date. Significantly, the Appellants and their predecessors neither objected to nor sought to terminate the Respondents' occupation throughout that period. The parties peacefully co-existed both before and after the adjudication and registration of the land, and by the time of first registration, the Respondents had already been in possession and occupation of the suit land for more than thirty years. These are weighty factual circumstances which this Court cannot ignore. They are relevant in determining the interests the respondents had on the suit property. 2. The supreme court in Kiebia’s case identified several guiding considerations, including; 3. The land in question was before registration, family, clan or group land 4. The claimant belongs to such family, clan, or group 5. 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. 6. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances. 7. The claim is directed against the registered proprietor who is a member of the family, clan or group. 8. The court also declare that, rights of a person in possession or actual occupation under Section 30(g) of the Registered Land Act, are customary rights. 9. Having regard to the foregoing reasons, this Court agrees with the trial court that the Respondents are entitled to the protection afforded by the doctrine of customary trust. Their interest constitutes an overriding interest preserved under **section 28(b) of the Land Registration Act, 2012**. Although the Supreme Court in *Kiebia* analysed the doctrine through the lens of section 30(g) of the repealed Registered Land Act, the principles articulated therein remain applicable, the Land Registration Act having expressly retained customary trusts as overriding interests. I am therefore satisfied that the Respondents established, on a balance of probabilities, the existence of a customary trust over Land Parcel No. Kanyada/Kanyabala/1008 (now subdivided into Land Parcel Nos. Kanyada/Kanyabala/4585 and 3533). 10. In the Civil Appeal NO. E100 OF 2023 Mwinyi Haji Mohammed Mwabika...V Fatuma Mohamed ...Judges of Appeal. Murgor Laibuta & Ngenya dealt with an issue of customary trust .This was an appeal from the judgment and decree of the Environment and Land Court at Kwale. The appellant (Mwinyihaji Mohamed Mwabika) against the respondent (Fatuma Mohamed) in Kwale CMC Land Case No. 29 of 2019 vide a Plaint dated 30th April was that he was the lawful owner of the parcel of land Reference No. Kwale/Tiwi/1640 (the suit property), which he inherited jointly with his now deceased brothers from their deceased father; that he was the only surviving son; that the respondent was a distant relative who was allowed to temporarily settle on the suit property on humanitarian grounds by one of the appellant’s deceased brothers after she had been driven out of her family land; that the arrangement was expressly temporary, and on the understanding that the respondent would vacate and return to her family land once their dispute was resolved; that the respondent subsequently refused to vacate the suit property and, in disregard of the owners’ agreement, began laying a foundation for a permanent building while falsely claiming that the land had been given to her by the owner; that, despite reports being made to the area chief and the officer in charge of Kwale Police Station, the respondent persisted with the construction; that the respondent’s actions amounted to trespass and a violation of his right to property; and that repeated demands by him and other relatives that the respondent stops the construction and vacate the land were ignored, leaving him with no alternative but to institute the suit. 11. On a 1st Appeal the learned Judge held that the evidence on record did not support the appellant’s assertion that the occupation was temporary or conditional and that, by reason of that long and permissive occupation, the respondent had acquired an overriding or equitable interest recognised by law. Accordingly, the learned Judge rejected the characterization of the respondent as a trespasser and held that eviction orders were unwarranted. 12. the fact that it was not disputed that the registered owners of the suit property invited the respondent, their close relative to live on the land for over 20 years hence she could not by any means be regarded as a trespasser. Indeed, her entry and occupation of the land was with the knowledge, consent, and permission of all the registered proprietors. 13. The court found find nothing to suggest that her occupation was subject to any conditions, the breach of which would justify her eviction, including the erection of permanent structures on the land. 14. The respondent’s long occupation of the suit property with the owners’ knowledge, permission and/or acquiescence supported the learned Judge’s holding that the respondent had acquired an overriding interest in respect of the portion that she occupied, and for good reason. 15. Section 28b of the Land Registration Act now provides for a trust a customary trust 16. a bare licence, being a mere permission to occupy, confers no proprietary interest and is revocable at will. However, equity has long recognised that the strict application of this principle may, in appropriate circumstances, work unconscionable results, and it is in this space that the doctrines of constructive trust and proprietary estoppel come into operation. 17. The common intention of the appellant and his deceased brothers was to permit the respondent to settle on part of their land held under a tenancy in common. In detrimental reliance on their common intention, she proceeded to build a home where she and her family continued to reside to this day for a period of more than 20 years. Viewed through the lenses of common law the circumstances of the case before us also impute the existence of a constructive trust. 18. Simply put, her long occupation under licence, combined with expenditure and detrimental reliance, confers on the respondent an equitable interest thereon (see Inwards v Baker [1965] 2 QB) 19. The respondent’s equally finds refuge in the doctrine of proprietary estoppel, which operates as an independent but related equity. The classic statement of the doctrine is that of Fry J in Willmott v Barber (1880) 15 Ch D 96) 20. For proprietary estoppel to arise, three elements must be established: (a) a representation or assurance made to the claimant; (b) reliance by the claimant on that assurance; and (c) detriment suffered by the claimant in consequence of his or her reasonable reliance. 1. Where these elements are established, equity will not permit the legal owner to resile from his assurance and the court will grant such relief as is proportionate to satisfy the equity raised in the claimant's favour. 2. All in all, courts have recognised that possession of immovable property or any part thereof under a licence, may, in appropriate circumstances, such as a prolonged period as was the case here give rise to equitable rights that a court of conscience cannot ignore, particularly where the licensor has by his conduct encouraged the licensee to treat the property as their own and to expend money or labour upon it. 3. **The Judges then concluded thus:** **’Having carefully considered the record of appeal, the grounds on which it was anchored, the rival submissions, the afore-cited judicial authorities and the law, we reach the inescapable conclusion that: (a) the appellant and his deceased brothers held the suit property as tenants in common in equal shares under and by virtue of section 91(2) of the Land Registration Act; (b) the appellant and his brothers had the independent right to appoint any part of their share and gift or convey it to any person of their choice either inter vivos (as did the appellant’s brothers)** under a will or in intestacy; (c) two of the appellant’s deceased brothers allocated part of their rightful share of the suit property to the respondent with intent that she settles thereon with her family; (d) the evidence on record discloses a common intention — express or to be inferred from the parties' conduct — that the respondent, as licensee, should have a beneficial interest in the appointed portion of the suit property; (e) by the time of their demise, such licence had not been revoked by the appellant’s deceased brothers; (f) the respondent acted to her detriment in reliance on that intention and constructed a home where they have lived for the last two decades; and (g) in addition to the overriding interest as well as the customary trust that accrued in favour of the respondent, an equity was created in her favour, well founded in the constructive trust as known to common law. 1. In the **case of Ngao v Kitheka (Civil Appeal 152 of 2019) [2024] KECA 21 (KLR) (25 January 2024) (Judgment) the court of appeal held thus** 24“’The Appellant in this case allowed his brother to live on parcel number 475 since 1975. The Respondent has been living on the said land without any interference from the registered proprietor, the Appellant. Obviously, if someone has been living on your land for more than forty (40) years, the court isentitled to import the concept of constructivetrust to protectsuch an individual from eviction. Furthermore, Section 30(g) of the Registered Land Act (repealed) provided that the rights of a person in possession or actual occupation of land to which he is entitled in right only of such possession is an overriding interest on registered land. 25. Thefacts of this caseshows that therewas a common intention between the Appellantand the Respondent, which intention the Respondent relied upon, to live and utilize parcel number 475. That intention created a trust, which is recognized by the Registered Land Act. Indeed, it has been recognized that a constructive trust is an equitable concept which acts on the conscience of the legal owner to prevent him from acting in an unconscionable manner by defeating a common intention. 26. Having allowed the Respondent to occupy his land since 1975 to date, the Appellant would be defeating a common intention which he had with his brother since 1975, which is unconscionableand not acceptable. “” 1. The court concluded thus: **Looking at the totality of the evidence that was considered by the two courts below and noting that both the appellantand respondent were in peaceful occupation of their respective parcels for 24 years beforethe appellant filed the suit for eviction,we are not persuaded that the Judge waswrong in finding that a common intention had been established and thus a constructivetrust arose.If one was to believe the appellant for a moment, why would he allow his brother, the respondent to occupy the parcel of land for 24 years without raising any question and fail to complain to the police on what he now calls a forged agreement?** **The documents in the record of appeal and the evidence are consistent with the holding that all along the suit land belonged to the respondent though registered in the name of the appellant.** **As the learned Judge held, this case falls within the exception captured in section 26 of the Registered Land Act.** 1. **Whether the judgment of the trial court should be upheld, varied or set aside, and who should bear the costs of the appeal.** Having independently re-evaluated the pleadings, the oral and documentary evidence on record, the judgment of the learned trial magistrate, the grounds of appeal and the applicable law, this Court is satisfied that the learned trial magistrate properly directed herself on the facts and the law relating to customary trust. It is equally noteworthy that the Appellants did not demonstrate that the learned trial magistrate misapprehended the evidence, applied wrong legal principles or reached conclusions unsupported by the record. Consequently, this Court finds no basis upon which to interfere with the findings and conclusions of the learned trial magistrate. In the result, and for the foregoing reasons, I find that the appeal lacks merit and is hereby dismissed in its entirety. The judgment and decree of the Chief Magistrate's Court in Homabay CMC ELC Case No. E051 of 2023 delivered on 23rd October 2025 are hereby upheld. 1. Regarding costs, the general principle under Section 27(1) of the Civil Procedure Act is that costs follow the event unless the court, for good reason, orders otherwise. This dispute concerns members of two families who have co-existed on the suit land for several decades and whose relationship has been shaped by customary arrangements. The learned trial magistrate directed each party to bear its own costs of the suit, evidently with a view to preserving harmony between the families. This Court finds no reason to depart from that approach. 2. Appeal dismissed. Each party to bear own costs. 3. File Closed. **Judgement dated and delivered via teams’ online platform at Homa Bay this 14th day of July 2026.** In the Presence of; 1. Oyala for G.S Okoth for the Respondent -Present. 2. Kimberly for the Appellants- Present JUSTICE J.W WANYONYI -JUDGE 14/7/2026 Top of Form Bottom of Form