https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5312

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT KILGORIS** **APPEAL NO. E041 OF 2025** **BENSON LETEIPA PARNINGO………...………………………………………1st APPELLANT** **JULIUS SAMIRA KOILEKEN…………………………………………………...2nd APPELLANT** **PHILIP KAKUTA…………………………………………………………………3rd APPELLANT** **VERSUS** **OLEUNUA OLE TONGEI………………………………………………………...RESPONDENT** **JUDGMENT** 1. Aggrieved with the judgment delivered by Hon. W.C Waswa on 24.07.2025, in E.L.C Case Number E028 of 2024, at Chief Magistrate's Court, Kilgoris between Benson Leteipa Parningo & 2 others and Oleunua Ole Tongei, in respect to the possession and use of the suit land, the Appellants Benson Leteipa Parningo, Julius Samira Koileken and Philip Kakuta filed the Memorandum of Appeal dated 10.09.2025, and sought the following reliefs; a) This Appeal be allowed in its entirety. b) The judgment and ensuing decree of the trial court dated 24.07.2025 in MCELC No. E28 of 2024 to be set aside in its entirety. c) The Plaintiff’s suit before the trial court be dismissed with costs. d) The Honourable Court to grant judgment in favour of the Appellants as prayed in their counterclaim, including: 1. A declaration that the Respondent holds parcel number Transmara/Kimintet “F”/732 in trust for the Appellants; 2. An order directing the transfer of the suit land to the Appellants; 3. A permanent injunction restraining the Respondent from interfering with the Appellants’ possession and use of suit land. e) The costs of this Appeal and the proceedings in the lower court be awarded to the Appellants. f) Any other orders or reliefs this Honourable Court may deem just and expedient. 1. The Appellants framed 7 grounds of Appeal; as follows; 2. The Learned Trial Magistrate erred in law and in fact by failing to properly consider and apply the doctrine of customary trust, contrary to the provisions of **Section 28(b) of the Land Registration Act**, despite overwhelming evidence of long-term occupation and use of the land by the Appellants. 3. The Trial Court erred in law and in fact in holding that there was no evidence to support the existence of a trust, notwithstanding the uncontroverted testimony of the Appellants and their witnesses that they had been in occupation of the suit land, Transmara/Kimintet “F”/732, since 1990 - long before adjudication and registration in favour of the Respondent. 4. The Honourable Magistrate erred in law and in fact in ignoring and/or failing to properly evaluate the cultural and historical land tenure practices of the Maasai community, which recognize customary land trusts and communal arrangements during and post-adjudication. 5. The learned trial magistrate erred in fact by placing undue weight on documentary title ownership while disregarding the oral and circumstantial evidence of actual possession and occupation over a 34-year period, which established the Appellants’ beneficial interest in the suit land. 6. The Learned Magistrate misdirected himself in law and fact by dismissing the Appellants’ counterclaim, yet the Appellants had raised legitimate claims under trust and equitable interest which warranted further inquiry or protection. 7. The trial court erred in law and in fact by issuing eviction orders and a permanent injunction, thereby unjustly depriving the Appellants of their longstanding homestead and source of livelihood without fair consideration of their equitable claims and rights arising from possession and use. 8. The learned magistrate erred in law in failing to uphold the principles of justice and equity, especially in land disputes arising from community-based allocations and informal agreements pending formal adjudication. 9. The Honourable Court erred by failing to consider or adequately address the implications of the Respondent’s alleged collusion with adjudication officers, as claimed by the Appellants, which raised serious questions of procedural irregularity and potential fraud in registration. 10. The decision of the trial court is against the weight of the evidence on record. 11. On the strengths of the above grounds of Appeal, the Appellant sought for the reliefs set out at Paragraph 1 of this judgment. 12. Upon admission of the Appeal the court issued directions for the disposal of the Appeal by way of written submissions which the court summarizes as herefollows; **Appellants Submissions** 1. The Appellants’ submissions submit on two main issues for determination. On issue No. 1, whether the Appeal is merited, the Appellants submit that the Appeal raises weighty, arguable, and meritorious issues of both fact and law justifying the intervention of this Honourable Court as the first Appellate Court by relying on the cases of **Selle & Another v Associated Motor Boat Co. Ltd (1968) EA 123** and **Peters V Sunday Post Ltd (1958) EA 424.** 2. The Appellants note that the central issue before the trial court concerned the existence of a customary trust expressly recognized under **Section 28(b)** of the **Land Registration Act, 2012 (Kenya)**, in which the Appellants relied on the cases of **Isack M’Inanga Kiebia V Isaaya Theuri M’lintari & Another (2018) eKLR**, **Mbui Mukangu V Gerald Mutwiri Mbui (2004) eKLR (O’kubasu, Githinji & Waki, JJA)**, **Kiarie V Kinuthia (1986) KLR 273**, **Mwangi & Another V Mwangi (1986) KLR 328**, and **Mbui Mukangu V Gerald Mutwiri Mbui (2004) eKLR**. 3. On issue No. 2, on who should bear the costs of the Appeal, the Appellants sought that the Appeal be allowed with costs on the strength of the above submissions. **Respondent’s Submissions** 1. The Respondent submitted and framed 6 issues for determination. On issue No. 1, whether the Appellants proved the existence of a customary trust, the Respondent submits that there was no evidence tendered to demonstrate the suit land is ancestral land, that there existed a family or clan arrangement, or that the Respondent was registered as a trustee, making the claim for customary trust speculative and unproved. The Respondent relied on the decision in **Isack M’Inanga Kiebia V Isaaya Theuri M’Lintori & Another [2018] eKLR** on the strict elements required to prove customary trust, that the Appellant must demonstrate not only occupation but also a clear familial, clan-based or customary nexus linking them to the registered proprietor and the land. 2. On issue No. 2, whether the Respondent’s title is indefeasible, the Respondent’s submissions submit that he holds a Title Deed issued on 15.12.2022, confirmed by Certificate of Official Search dated 04.04.2024 and relies on **Article 40 of the Constitution of Kenya (2010)**, the decision in the matter of **Wreck Motors Enterprises V Commissioner of Lands [1997] KLR**, and **Section 26(1) of the Land Registration Act** which provides that a certificate of title shall be taken as conclusive evidence of ownership unless it is challenged on grounds of fraud, misrepresentation, illegality or procedural irregularity. 3. On issue No. 3, whether the Appellants’ alleged long occupation conferred any legal rights, the Respondent submits that occupation without legal entitlement does not confer ownership rights relying on the case of **Mbira V Gachuhi [2002] 1 E.A 137**. 4. On issue No. 4, whether the court erred in its evaluation of evidence, the Respondent submits that the trial court carefully analyzed all the evidence and applied the correct legal principles on trust and ownership and there is no legal basis for interference with the judgment. The Respondent also points that in **Selle V Associated Motor Boat Co. [1968] EA 123**, an Appellate court only interferes with findings of fact where they are based on no evidence or are plainly wrong. 5. On issue No. 5, whether the Appellants’ occupation can defeat the Respondents’ registered ownership, the Respondent submits that under Kenyan Law, ownership is determined b y registration and possession cannot override title unless supported by a recognized legal doctrine relying on the case of **Dr. Joseph N.K. Arap Ng’ok V Justice Moijo Ole Keiuwa & Others [1997] eKLR**. 6. On issue No. 6, whether the orders of eviction and injunction were proper, the Respondent submits that the Trial Court was justified in granting orders of eviction and permanent injunction to protect the rights of the Respondent and prevent continued unlawful occupation citing **Article 40 of the Constitution of Kenya (2010)**. 7. On the strengths of the above submissions, the Respondent sought that this Appeal be dismissed in its entirety with costs and to uphold the judgment delivered on 24.07.2025. **Issues For Determination** 1. From the Record of Appeal the submissions of the parties and consideration of the law, the court frames the following as issues for determination; - 2. Whether or not the Appeal is merited, in deciding this issue the court will determine which between the plaintiff’s suit or the defendants defence and counter was merited and ought to have been upheld 3. What reliefs ought to issue. 4. Who bears the costs of Appeal. **Analysis and Determination** 1. In performance of this court’s duties as a first Appellate court, I have reviewed the pleadings and proceeding that were before the trial court. The Appellants herein were the Defendants before the trial court, while the Respondent herein was the plaintiff before the trial court; 2. Vide his Amended Plaint dated 29th of June 2024, the plaintiff averred interalia as follows; 3. That he was the registered owner of all that parcel of land known as Transmara/Kimintet ‘F’/732 measuring 21.51 Ha, which he had occupied pursuant to allocation to the date of Plaint, but on diverse dates between 2023 and 2024 the Defendants had trespassed onto the suit property and started cultivating, cutting down the indigenous trees thereon and digging up holes and started putting up fences and the 3rd Defendant built a cattle shed thereon; which actions were carried out without any colour of right, and deprived him of usage and the plaintiff claimed general damages for trespass and mesne profits as well as an eviction order and declaration as to ownership and a permanent injunction. 4. The Defendants now Appellants filed a joint statement of Defence and counter-claim in which they averred *interalia* that; - * + - 1. They denied trespassing on the suit property, denied knowledge of the plaintiff’s interest therein alleging that the plaintiff’s averments were false and misleading and they claimed to have interests on the suit property that superceded the plaintiff’s claim of right; claiming having had occupation and possession of suit property since 1990 even before the adjudication and that they lived thereon. 2. They averred that the plaintiff’s title to the suit land was held in Trust for them as the defendants had allowed the plaintiff’s entry to the suit land before adjudication, they further averred that the suit was misconceived, frivolous and an otherwise an abuse of court process, that the same offended the provisions of Limitation of Actions Act, cap 21 as the cause of action arose in 1990. 5. By way of a counter-claim, the Defendants now Plaintiff, pleaded that the suit land had been Trust Land before adjudication and were entitled to the same. 6. The counter-claimers pleaded particulars of Trust, being *interalia*, occupations since 1990, and were beneficiaries of the Trust land having been in occupation of the same. 7. They sought for a declaration that the suit land was held in Trust for them by the plaintiff and were thus entitled to the suit land. 8. An order directing the Plaintiff/Defendant in counter-claim to transfer the suit property to them. 9. The matter proceeded for trial and the learned trial magistrate in his judgment found no existence and/or proof of Trust and that the Defendants had failed to adduce evidence in support of the defendants claim of Trust and thus dismissed the defence or counter-claim and upheld the plaintiff’s claim thus provoking this Appeal. 10. It is common ground that the suit property was in an adjudication section hence the provisions Land Adjudication Act applied. That the plaintiff was allocated suit parcel pursuant to the adjudication process. 11. It is also common ground that the Land Adjudication Act has internal mechanisms of dispute resolutions, including objection proceedings as well as Appeals to the minister. 12. The Defendants/Appellants claim to the suit property was by virtue of a Trust, and in the counter-claim they pleaded Trust. The said Trust was not pursuant to a Trust deed, and was therefore Trust as recognized under section 28 of the Land Registration Act, which Trust was the customary Trust. 13. Paragraph 14 and 15 of the counter-claim lends weight to the type of Trust pleaded therein to be customary Trust, this is further supported by the testimony of D.W.2 in cross-examination where he referred to the Maasai culture. The court therefore deems the Trust relied on by the Appellants as counter-claimers to have been the customary Trust. 14. In respect of the existence of a Trust, the trial court found no evidence of the existence of a Trust as proof of the same required evidence, in making this finding the learned trial magistrate relied on the decision in the case of Salesio M’Itonga Vs. M’arithi M’athara Raphael Mwebia, Phireas Kimathi Arithi and Silas Muriungu (2015) KECA 772 KCR. 15. In finding for the plaintiff, the court found that the plaintiffs had proven the following ownership documents, to wit a copy of a title deed and copy of official search and the court found that the plaintiff’s ownership to be protected under section 24, 25 and 26 of the Land Registration Act. 16. I have reviewed the Record of Appeal, and in I find that the Defendants/Counter-claimers now Appellant conceded to knowing that the suit property was under an adjudication section and that they knew the adjudication process. 17. The Land Adjudication Act provides for ascertainment of rights before and during the adjudication process, if indeed the Appellants were in occupation of the suit property certainly the same would have been demarcated to them, but the same was not. 18. For customary Trust to have existed, the Supreme court in its decision in the case of Isack M’Inanga Kiebia Vs. Isaaya Theuri Mlintari and Another 2018 eKLR, set out the following elements to be proven; ***“(a)The land before registration was family clan or group land.*** * + - 1. ***The claimant belongs to such family clan or group.*** 2. ***The relationship between the claimant and the registered proprietor is not remote;*** 3. ***The claimant could have been entitled to be registered as owner or beneficiary but for some intervening circumstances and*** 4. ***The claim is directed against the registered proprietor who is a member of the family clan or group…”*** 1. Applying the above elements before the claim at the trial court the counter-claimers did not prove the said elements, no evidence was led to the establishment of a customary Trust and the trial court was right that burden of proof under section 107 to 109 of the Evidence Act was not proven by the counter-claimers now Appellants. The counter-claimers did not plead that the Respondent was a member of their clan or family, either. 2. In their submission before the trial court the counter-claimers found at page 50 of the Record of Appeal their counsel introduced a new type of trust namely the Constructive Trust. 3. The court finds other than the customary Trust as pleaded and which evidence was lead on, the trial court rightly ignored the issue of constructive Trust that was introduced in evidence. This is in line with the decision in the case of Daniel Toroitich Arap Moi Vs. Mwangi Stephen Murithi; when the court observed as follows; - ***“submissions cannot take the place of evidence. The 1st Respondent had failed to prove his claim by evidence. What appeared in submission could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties “Marketing language”, each side endeavoring to convince that its case is the better one. Submissions are reiterate do not constitute evidence at all indeed, there are many cases decided without hearing submissions but based only on evidence presented…”*** 4. I say no more on the issue. 5. Thus, upon re-evaluation of the evidence before the trial court, the plaintiff’s case was merited in view of his registration as the owner thereof and the rights conferred upon a registered owner under section 24-26 of the Land Registration Act. 6. The Defendants did not impeach the title issued to the plaintiff and did not prove their claim based on Trust in the counter-claim and the defence and counter-claim were rightly dismissed. 7. In answer to issue No. 1, the court thus finds that Appellants Appeal herein lacks merit as their defence and counter-claim before the trial court were not merited in the first instance. 8. On issue No. 2 having found the Appeal to lack merit, the same is dismissed with costs of Appeal, costs of the suit and counter-claim being awarded to the Respondent, and the judgment by the trial court is upheld. 9. Judgment accordingly. Dated at Kilgoris this 28th day of July, 2026 Hon. M.N Mwanyale Judge **In the presence of** CA –Sylvia/Clara Mr. Kiprotich for the Appellant Ms. Mireri for the Respondent