https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4701

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ELDORET** **ELC CASE NO. 10 OF 2017** **REUBEN CHEPKAW CHESANG ……............................ PLAINTIFF** **-VERSUS-** **TEBEKE CHESANG ………...............……………..… 1ST DEFENDANT** **ROSE JEROTICH KANGOGO ……….................… 2ND DEFENDANT** **JUDGMENT:** 1. The Plaintiff instituted the present suit vide a Plaint dated 11th November, 2016 against the Defendants, seeking the following ORDERS; * 1. **An order of permanent injunction to restrain the defendants jointly and severally from trespassing upon, claiming and making other dealings with the plaintiff’s land namely title No. MOIBEN/MOIBEN BLOCK 3 (KAPSILIAT)/67 measuring approx. 5.311 hectares.** 2. **Costs and interests thereon.** 3. **Any other or further relief deemed fit in favour of the plaintiff.** **Plaintiffs’ Case:** 1. The plaintiffs’ claim is that he is the registered and absolute proprietor of all that parcel of land known as L.R. No. MOIBEN/MOIBEN BLOCK 3 (KAPSILIAT)/67 measuring approx. 5.311 Ha (hereinafter referred to as the ‘suit land’). 2. The plaintiff avers that vide a demand letter Ref. No. CEK/50/16 dated 11.04.2016, the defendants jointly and severally, laid claim over the suit land and gave the plaintiff 14 days’ notice to comply with the demands made therein. 3. The plaintiff responded to the said demand letter vide a letter dated 21.04.2016, wherein he challenged the contents of the letter and particularly the defendants’ claim over the suit land. 4. The plaintiff has thus filed the present suit, seeking an order of permanent injunction to restrain the defendants from claiming the whole land or any part thereof or make other adverse dealings with the suit land. 5. Consequently, he urged the court to allow his claim and to grant the orders as sought in the plaint. 6. The plaintiff’s case was opposed. The defendants filed joint statement of defence in response to the averments made against them in the plaint. **Defendants’ Case;** 1. The Defendants filed a Statement of Defence dated 8th March, 2017, wherein they denied each and every allegation of fact raised in the plaint and in particular, the contents of paragraphs 3 and 5 of the plaint and put the plaintiffs to strict proof thereof. 2. In further response to the contents of paragraph 3 touching on the registration of the suit land, the defendants aver that they are co-owners of the suit land, which originally belonged to their late father. 3. It is their contention that their late father registered the suit land in the plaintiff’s name to hold ½ portion of the suit land in trust for the 1st defendant, who is the plaintiff’s biological brother. 4. However, it is their claim that the plaintiff has since refused to survey and transfer the half portion of the suit land in favour of the 1st defendant but instead has taken advantage of the fact that the suit land is registered in his sole name with the intention of disinheriting the defendants herein. 5. In conclusion, the defendants urged the court to dismiss the plaintiff’s suit against them with costs. 6. The statement of defence was served upon the plaintiff and he filed a Reply to Defence in response to the allegations made therein. **Plaintiff’s Reply to Statement of Defence** 1. The plaintiff filed a Reply to Defence dated 25.04.2017 wherein he denied the averments contained in paragraphs 3,4,5,7 and 8 of the defence, touching on the allegations of trust, co-ownership of the suit land and/or that the suit land belonged to their late father and put the defendants to strict proof thereof. 2. He thereafter urged the court to dismiss the defence with costs and to allow the plaintiff’s suit as prayed. **Trial:** 1. The plaintiffs’ case proceeded for hearing on 25.06.2019. The plaintiff testified as PW1 and thereafter closed his case. He adopted his witness statement dated 11.11.2016 as his evidence in chief. 1. He also produced the following documents as exhibits in further support of his claim as follows: - Pexh.1(a) and (b) – copies of the green card in respect to the suit land and the receipt. Pexh. 2 – copy of the letter dated 27.05.2016 to the Chief Magistrate’s Court in Eldoret. Pexh. 3 – copy of the letter dated 11.04.2016 by Chelagat & Co. Advocates Pexh. 4 – copy of a letter dated 21.04.2016 1. In addition, it was his testimony that the 1st and 2nd defendants are his brother and niece respectively. He explained that the title deed of the suit land is in the Chief Magistrate’s Court Eldoret, wherein he was a surety in a Criminal Case. 2. In conclusion, he urged the court to enter judgment in his favor as sought and order the defendants to vacate the suit land. 3. On cross examination, he stated that he bought the suit land from a company and the title deed thereto was issued in his name. 4. He denied the allegations that the land was bought using the proceeds from the family. He however admitted that his late mother and brother were buried on the suit land. 5. It was also his testimony that his late father died in 1972. That he bought the suit land in the same year 1972 and obtained the title thereto in 1984. In conclusion, he maintained that the suit land does not belong to the family. 6. On re-examination, he restated that he bought the suit land using his own funds, and the land therefore belongs to him. He confirmed that his mother and brother were buried on the land while his late father was buried on his parcel of land. 7. The defence case proceeded for hearing on 18.04.2023. The 1st defendant testified as DW1. He adopted his witness statement dated 06.09.2018 as part of his evidence-in-chief. 8. It was also his testimony that the suit land was purchased by their late father. That his late father sold goats and the proceeds thereof were used to purchase the suit land. He confirmed that the plaintiff is his brother and that they are both in occupation of the suit land. 9. On cross – examination, he confirmed that his advocate, Mr. Cheluget wrote a letter dated 11.04.2016 but stated that he did not know whether the said letter was responded to. He stated that the 2nd defendant is his daughter. 10. It was also his testimony that they originally came from Kilao Village in Elgeyo Marakwet and that the plaintiff is his biological brother. That they were 3 boys but one has since died. 11. He also stated that the suit land measures 12 acres and that he was given half an acre thereof, where he put up a grass thatched house and one slope mabati house. 12. With regard to the purchase of the suit land, he admitted that he did not have any document to show that the suit land was purchased by their late father and added that he was not present when the suit land was purchased. 13. He further testified that there was a time when the area chief went to their home and asked them to subdivide the suit land but conceded that he did not have any document to support the said averments. He reiterated that the suit land does not belong to his brother. 14. On re-examination, he stated that the half an acre portion of the land was given to him by his brother. 15. Emmanuel Kangogo Karanei testified as DW2. He adopted his witness statement dated 06.09.2018 as part of his evidence in chief. 16. It was also his testimony that the plaintiff and the defendants are his neighbors and are all in occupation of the suit land. That the suit land was given by Kapsiliat Ranch and denied the claims that the suit land was purchased by the plaintiff. 17. He testified that the suit land belongs to the father of the plaintiff and the 1st defendant. He stated that there was a meeting before the chief, wherein it was agreed that the plaintiff gets a portion of the suit land measuring 6 acres while the 1st defendant gets 4 acres and the last born in the family gets the remaining 2 acres. It was his contention that the plaintiff agreed with what was said in the meeting. 18. On cross-examination, it was his testimony that he went to Kapsiliat in 2007. He confirmed that the suit land is registered in the name of the plaintiff and was not sure whether the title thereto was issued after Kapsiliat Ranch had confirmed that the land belonged to the plaintiff. He however reiterated that the suit land was purchased after the late Chesang Karanei sold his goats and stated that he was at Chepyemit when goats were being sold and he witnessed the same. Be as it may, he conceded that he had never seen any receipt which were issued to the late Chesang Karanei in respect to the said purchase. 19. The witness conceded that he did not have any document to show the deliberations that took place before the chief but maintained that a meeting was held before the chief’s office. 20. He confirmed that where one member of a clan kills another, the family of the killer flees the area but stated that he was not aware whether the 1st defendant killed any person. 21. On re-examination, he stated that Kapsiliat Ranch no longer exists and that the secretary of the ranch is the only one that is still alive. 22. Albina Chepkaw testified as DW3. She adopted her witness statement dated 06.09.2018 as part of her evidence in chief. She stated that the plaintiff is her husband. 23. It was also her testimony that the suit land belongs to Chesang Karanei, who was her father in-law. That she was present when the goats belonging to Chesang were being sold by the plaintiff on behalf of his father and the proceeds from the said sale was used to purchase the suit land. 24. She added that the suit land was registered in the name of the late Chesang Karanei and she does not know how the land was later registered in the name of the plaintiff. However, she did confirm that both the plaintiff and the defendant are living on the suit land. 25. On cross-examination, she stated that she was married to the plaintiff but have since parted ways. She conceded that she did not know the amount that was raised from the sale of the goats. 26. Despite stating in her examination in chief that the suit land was initially registered in the name of the late Chesang Karanei, when cross-examined, it was her testimony that she did not know why the land was not registered in the name of the late Chesang Karanei. 27. Catherine Kibor testified as DW4. She adopted her witness statement dated 06.09.2018 as part of her evidence in chief. She stated that the plaintiff and the 1st defendant are her brothers. That the plaintiff is the second born, the 1st defendant is the third born while she is the fifth born in the family. 28. It was also her testimony that the suit land belongs to their father Chesang Karanei, having been purchased from the proceeds from the sale of goats. She stated that she did not know how the suit land was registered in the plaintiff’s name. She confirmed that when one of her brothers died, he was buried in the suit land. 29. On cross-examination, she reiterated that the plaintiff and the 1st defendant are her brothers. She confirmed that they have never carried out succession in respect of the estate of their late father. It was her contention that she witnessed the sale of goats. 30. She further stated that she was present during the meeting at the Chief’s office. She reiterated that the suit land was not purchased by the plaintiff. 31. Benedict Arusei, the Area Chief Kapsiliat Location, testified as DW5. He confirmed that he is the one who wrote the letter dated 22.05.2018, contained in the defendant’s list of documents. He stated that the said letter relates to the suit land and produced the same as Dexhibit 1. 32. On cross-examination, he stated that the letter is in his handwriting but conceded that the letter states that it was written by Charles Kibet. 33. He confirmed that from the said letter, the suit land is registered in the name of the plaintiff and a title thereto was issued. That according to the said letter, it was stated that the suit land was purchased by the plaintiff’s father but conceded that he had no document to support the said sale of land or to support the sale of goats. 34. It was his testimony that the plaintiff and his clan originally came from Kerio Valley, in a place called Kilawi in Keiyo North. That the dispute over the suit land was brought before him several times. 35. It is his contention that after several meetings, the plaintiff agreed to have the suit land sub-divided. He however admitted that they did not have a court order to sub-divide the suit land. He also stated that he was not aware whether succession had been instituted in respect to the estate of the plaintiff’s father. 36. On re-examination, he confirmed that he is the one who wrote the letter marked Dexh. 1. 37. After re-examination, the defence closed their case. 38. Upon close of the defence case, directions were issued on the filing of the final submissions. The plaintiff filed his submissions dated 21.04.2026 together with authorities while the Defendants filed theirs dated 26.05.2026 which I have read and duly considered. Consequently, I will proceed to render my decision as hereunder. **Analysis and Determination:** 1. Upon careful consideration of the facts as contained in the pleadings filed herein, the various testimonies and exhibits adduced in support of the rival claims as well as the parties final submissions and the authorities cited in totality, it is my considered opinion that the following issues arise for determination: - 1. *Who is the actual, lawful and/or legal owner of the suit land herein.* 2. *Whether there exists a customary trust in respect to the suit land* 3. *Whether the plaintiff is entitled to the reliefs sought in the Plaint against the defendants.* 4. *Who shall bear the costs of the suit* 2. **Who is the actual, lawful and/or legal owner of the suit land herein;** 3. The first issue seeks to determine who is the actual, beneficial, lawful and/or registered proprietor of the suit property herein and make a declaration of ownership thereto. 4. It is the plaintiff’s claim that he is the actual and registered proprietor of the suit property measuring 5.311 Ha, having purchased the same from a company and the title issued in his name. 5. In support of the said ownership and registration claims, the plaintiff produced Pexh.1(a), a copy of the Green Card in respect to the suit land and which confirmed that the suit land was indeed registered in the name of the plaintiff. He explained that the title deed of the suit land was in court, having been used in a criminal case where he stood surety for the 1st defendant. 6. These averments were further reiterated and buttressed by the defendants in their statement of defence as well as testimonies in court DW2, DW3, DW4 and DW5 all testified and confirmed that the suit property is currently registered in the name of the plaintiff but averred that they did not know how and when he was registered as owner. 7. Section 26 of the Land Registration Act provides that a certificate of title shall be held as conclusive proof of ownership and gives the grounds of challenging a title document. The section provides as follows: - ***26. Certificate of title to be held as conclusive evidence of proprietorship*** ***(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—*** ***(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or*** ***(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. (Emphasis mine).*** 1. From a look at the said Green Card, the suit land was registered in the name of the plaintiff, as a first registration on 01.12.1987 and the title issued on the same date. The defendants did not adduce any evidence to challenge and/or controvert the title document issued in the name of the plaintiff and evidenced in the green card produced as pexh. 1(a) either in the nature provided under section 26 (1) (a) and (b) above or at all. 2. Therefore, in the absence of any evidence to the contrary, it is the finding of this court that the title deed registered and issued in the name of the plaintiff on 01.12.1987 as seen in the Green Card in respect to the suit land, is a prima facie and conclusive evidence that the plaintiff is the absolute, indefeasible, actual and registered owner of the suit property herein and is thus vested with all the rights and privileges appurtenant thereto as provided under sections 24 and 25 of the Land Registration Act. 3. **Whether there exists a customary trust in respect to the suit land.** 4. The second issue herein seeks to establish the existence of a customary trust over the suit property. 5. Even though the defendants have acknowledged and confirmed that the suit land is indeed registered in the name of the plaintiff, it is the 1st defendant’s claim that they are co-owners of the suit land and that the plaintiff holds the same in trust. 6. Further, it is their contention that the suit land was purchased by their late father, using the proceeds from the sale of goats and therefore maintained that the suit land originally belonged to their late father. 7. It was pleaded in the statement of defence that their late father had the suit land registered in the name of the plaintiff, to hold half portion thereof in trust for the 1st defendant. These assertions were reiterated by DW2, DW4 and DW5 in their testimonies, who all maintained that the suit land belonged to the Plaintiff’s and 1st Defendant’s late father and that the registration in the sole name of the plaintiff is to hold half portion thereof in trust for the 1st defendant. 8. The plaintiff on the other hand testified that the suit land belongs to him, having purchased the same from a company, Kapsiliat Farm Ranch, and a title deed issued thereto in his name. He dismissed the claims made by the defendants that the suit land belonged to their late father or that he was holding a half portion of the suit land in trust for the 1st defendant. He maintained that the suit land is his lawful property. 9. The question that therefore follows is whether there exists a customary trust in respect to the suit property and in favour of the 1st defendant herein. 10. Section 28 of the Land Registration Act provides for overriding interests. The section 28(b) states 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) spousal rights over matrimonial property;*** ***(b) trusts including customary trusts;*** ***(c) ………..*** ***(emphasis mine)*** 1. From section 28(b) of the Act above, it is evident that the registration of a proprietor of a suit parcel may be defeated by the existence of a customary trust, which need not be registered or noted on the register of the said title. 2. The Supreme Court in the case of [***Kiebia vs M’lintari & Another [2018] KESC 22 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2018/22/eng%402018-10-05)while dealing with the issue of customary trust as an overriding interest held 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 trusts 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.*** ***Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land.*** ***Some of the elements that would qualify a claimant as a trustee are:*** ***1.The land in question was before registration, family, clan or group land.*** ***2.The claimant belongs to such family, clan, or group.*** ***3.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.*** ***4.The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.*** ***5.The claim is directed against the registered proprietor who is a member of the family, clan or group.”*** 1. Therefore, having established that the existence of a customary trust need not be noted against the register of the particular suit property, the question that follows is whether the defendants have sufficiently demonstrated the elements for customary trust outlined in the Supreme Court decision above. 2. The first element looks at the pre-registration status of the suit land. That the land in question was before registration a family, clan or group land. 3. The defendants have premised their claim on customary trust on the allegation that their late father, Chesang Karanei, purchased the suit land using the proceeds of the sale of his goats. 4. It is not in dispute that the suit land herein was purchased from Kapsiliat Farm Ranch. Even though the defendants aver that the suit land was purchased by their late father, there is no material that have been placed before this court by the defendants, either in the form of the Kapsiliat Farm membership register list containing the name of the late Chesang Karanei or a receipt from the Kapsiliat Farm as proof of payment of the purchase price in respect to the suit land from the late Chesang Karanei. 5. Save for the letter by the chief and which has been produced as Dexh. 1, the defendants have not produced any document in support of their averments that the land was purchased by their late father or of the proceeds obtained from the alleged sale of goats, if any, or that their late father was a member of the Kapsiliat Farm Ranch. 6. An alleged purchase using the funds obtained from the sale of goats is not in my considered view sufficient proof to demonstrate that the suit property was before registration family, clan or group land. 7. Moreover, DW1 and DW5 confirmed that the defendants were originally from Kilawi Village, Kerio Valley, Keiyo North within Elgeyo Marakwet County. The 1st defendant, who testified as DW1, confirmed that they only came to the suit land after he was chased away from Kilao Village, following an assault incident. 8. Thus, in view of the foregoing, this court finds that the defendants have not sufficiently demonstrated that the suit land before registration in the name of the plaintiff was family, clan or group land. Sections 107 and 109 of the Evidence Act are clear on the burden of proof on the party which seeks to rely on the existence of a particular fact. In this case, this burden has not been discharged by the Defendants. 9. The second to fifth elements all seek to ascertain the relationship and membership of the claimant to the family, clan or group and further whether the claimant would have been entitled to be registered as an owner, had it not been for certain circumstances and lastly, the target of the claim. 10. In the present case, it is not in dispute that the plaintiff and the defendants are all related. They are brothers and niece respectively. 11. However, having held that there is no sufficient demonstration that the suit land prior to the registration was either a family, clan or group land, I find that the remaining elements fall by the way side. 12. Consequently, the totality of the foregoing is that customary trust does not exist in respect to the suit property in favour of the 1st defendant as alleged. The defendants have failed to discharge the burden of proof of the existence of a customary trust in respect to the suit land to the required standard. 13. **Whether the plaintiff is entitled to the reliefs sought in the Plaint against the defendants** 14. The plaintiff in his plaint has sought an order of permanent injunction, restraining the defendants from trespassing upon, laying claims or dealing with the suit land in any other manner as well as costs of the suit. 15. This issue therefore seeks to determine whether the plaintiff is entitled to these orders as sought and whether the same have been proved to the required standard. 16. The elements for the grant of a permanent injunction are now well settled and this court does not seek to reinvent the same. The Court of Appeal in the case of ***Nguruman Limited vs. Jan Bonde Nielsen & 2 others [2014] eKLR*** in outlining the principles for the grant of injunctions held as follows: ***“…these are the three pillars on which rest the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially… if the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted will be irreparable. In other words, if damages recoverable in law are an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.”*** 1. As to what constitutes permanent injunction, the court in the case of ***Kenya Power & Lighting Co. Ltd v Sheriff Molana Habib [2018] eKLR***, in which the Court stated as follows: ***“A permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit. It fully determines the rights of the parties before the Court and is thus a decree of the Court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the Defendant in order for the rights of the Plaintiff to be protected.”*** 1. In the present case, the conditions for the grant of a permanent injunction have in my considered view been satisfactorily met to the required standard. As held in issue (i) and (ii) above, the plaintiff has demonstrated his lawful ownership and absolute proprietorship of the suit property while the defendants have failed to sufficiently demonstrate the existence of customary trust as a basis for their claim on the suit land. The evidence and material placed before this court in my view fully supports the Plaintiff’s claim for the grant of permanent injunction. 2. Consequently, in view of the finding in issue Nos. (i) and (ii) above, it is the finding of this court that the plaintiff is entitled to an order of permanent injunction as sought in the plaint. 3. **Who shall bear the costs of the suit?** 4. The general rule is that a successful party is ordinarily entitled to costs of the suit unless the court directs otherwise. 5. However, given the nature and circumstances of the present suit and the fact that the parties herein are all related and family members, this court hereby directs each party to bear their own costs of the present suit. **Disposition:** 1. The upshot of the foregoing is that the Plaintiff has sufficiently proved his claim against the defendants on a balance of probabilities. Consequently, this court finds that the Plaint dated 11th November, 2016 is **merited** and is hereby **allowed** on the following terms: - 2. **An order of permanent injunction be and is hereby issued, restraining the defendants jointly and severally from trespassing upon, claiming and making other dealings with the parcel of land namely title No. MOIBEN/MOIBEN BLOCK 3 (KAPSILIAT)/67 measuring approx. 5.311 hectares.** 3. **Each party to bear their own costs of the suit.** 4. It is so ordered. **DATED**, **SIGNED** and **DELIVERED** virtually at **ELDORET** this **23RD** dayof **JULY, 2026.** **HON. C.K. YANO** **JUDGE** In presence virtual presence of: - Ms. Muriithi for Defendants. Mr. Cheptarus for Plaintiff. Court Assistant – Laban