https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/602

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **ELC MISC CASE NO. E012 OF 2025** **SALOME ATEMO SUDI…………..…………..………….…………………………..PLAINTIFF** **VERSUS** **REGINA NASAMBU KHAEMBA…….……………….…………..………………………………………DEFENDANT** **JUDGMENT** 1. It is imperative for the record to reflect from the outset that the Plaintiff erroneously filed this suit as a miscellaneous application instead of a substantive suit. However, the parties herein elected to proceed with the case as is, with an understanding that the same was a substantive suit properly filed. 2. The Plaintiff moved this court through a Plaint dated 04th November 2025 praying for the following orders: 3. *An eviction order against the Defendant herein by herself, agents, workers and/or anyone claiming through her from land parcel number W.Bukusu/W.Siboti/1326* 4. *OCS Bumula Police Station or any nearest police station to ensure compliance of the orders* 5. *Costs* 6. *Any other relief that this Honourable Court may deem fit to grant* 7. The Plaintiff pleaded that she is the registered owner of land parcel number W.Bukusu/W.Siboti/1326 (“the suit property”) measuring approximately 0.95 ha where she has constructed rental houses. 8. She described the Defendant as the suit property’s caretaker who has declined to vacate the suit property despite several requests thus necessitating the filing of this suit. 9. The Defendant entered appearance and filed a Statement of Defence dated 01st December 2025 putting the Plaintiff to strict proof of all the averments in her Plaint. 10. The Defendant pleaded that the suit property was her husband one Nalondo Simon Linus (“the deceased”) inheritance entitlement. She referred to the Plaintiff as her co-wife. She added that the deceased settled her on the suit property in 2020 where she currently stays. 11. It was further averred by the Plaintiff that at the time of the deceased’s death, the suit property was owned by the deceased’s father one Simon Namasisie Nalondo. 12. The Defendant added that the Plaintiff was well aware of her beneficial interest in the suit property as the deceased’s widow at the time she procured the registration of the suit property in her name. She urged this court to dismiss this suit with costs. 13. The Plaintiff filed a Reply to the Statement dated 02nd February 2026 reiterating the averments in her Plaint. She further pleaded that the suit property was not the deceased’s inheritance and that the Defendant did not have any proprietary or beneficial interest in the suit property capable of her registered title. 14. She described the Defendant as a trespasser on the suit property. She pleaded that this court ought to strike out the Defendant’s Statement of Defence and grant her the prayers in the Plaint. 15. Given the divergent positions taken by the parties herein regarding this dispute, this matter was set down for hearing for the parties herein to prove their respective cases on a balance of probabilities. **EVIDENCE** **Plaintiff’s case** 1. **PW1 Salome Atemo Sudi** adopted her witness statement dated 04th November 2025 as her evidence in chief. Her testimony was largely a rendition of her averments in the Plaint summarized above. Therefore, it will not serve any purpose to reproduce the same here. 2. She produced the suit property’s title deed, the Napara location chief’s letter dated 03rd November 2025, and a Certificate of Marriage dated 15th April 2006 as exhibits. 3. She admitted in cross-examination that the suit property had two houses and that one of the houses was her dwelling house while the other one a business premises occupied by the Defendant. She could not tell if the deceased used to stay with the Defendant in the business premises. 4. She also admitted that the suit property was given to her by her father -in-law. She conceded that the Napara location chief’s letter dated 03rd November 2025 and the Namag’ofulo Secondary School’s principal’s letter dated 31st March 2023 showed that the deceased was survived by two widows. She denied reading or seeing the deceased’s burial program/eulogy during the deceased’s burial. **Defendant’s Case** 1. **DW1 Regina Nasambu Khaemba** adopted her witness statement dated 26th January 2026 as her evidence in chief. Her testimony was a reiteration of the contents of her Statement of Defence summarized above. In the circumstances, this court will not rehash those contents here. She reiterated that the deceased was her husband and that the Plaintiff was her co-wife. 2. She produced a mutation form for the suit property, the Napara location chief’s letter dated 05th October 2023, the Namang’ofulo Secondary School principal’s letter dated 31st March 2023, the deceased’s funeral program and the deceased’s certificate of death, her house’s photos, and a copy of the suit property’s register as exhibits. 3. In cross-examination, she admitted that she was aware that the Plaintiff and the deceased were married through a Christian wedding. She added that the deceased paid her dowry in 2022. She accused the Plaintiff of fraudulently transferring the suit property to herself. 4. **DW2 Tobias Mukhebi Wamalwa** adopted his witness statement on record as his evidence in chief. He testified that he was the deceased’s clan secretary and that he prepared the clan’s lufu meeting minutes dated 04th April 2023, which showed that the Defendant was the deceased’s second wife. 5. In cross-examination, he could not tell whether the Plaintiff and the deceased’s church wedding prevented the deceased from marrying a second wife. He added that he was aware that the deceased paid the Defendant’s dowry. **Additional Evidence** 1. It came to the attention of this court during the hearing of this matter that neither party had called Simon Namalisie Nalondo (“the deceased’s father”) as a witness despite both parties recognizing him as their father-in-law and the suit property’s registered owner. 2. It is against this backdrop that this court invoked its inherent powers under section 1A, 1B of the Civil Procedure Act, as well as its powers under section 22 (b) of the Civil Procedure Act to summon a relevant witness suo moto and issued witness summons to Simon Namasisie Nalondo to shed more light on the circumstances of this case for the ends of justice to meet. 3. Simon Namasisie Nalondo appeared before this court on 23rd June 2026 when he testified and was thereafter cross-examined by the parties' counsel. 4. He testified that the deceased was his son who was survived by one wife (the Plaintiff) and two children. He stated that the Defendant was the deceased’s friend since 2020. 5. He added that there was a time he saw the deceased constructing a house on his portion of the land near the market. He later saw the Defendant running a catering business in that house. He denied seeing the deceased’s eulogy during the deceased’s burial. He identified DW2 as their clan secretary, who prepared the deceased’s eulogy after consulting the clan. He added that the Defendant still stays in the house that the deceased constructed, and that the Defendant was not paying rent for staying in the said house. 6. He further stated in cross-examination by Mr. Mokaya, counsel for the Plaintiff, he stated that he was 86 years old. He added that he had given the suit property to the deceased before his death and that he later handed over the suit property’s title deed to the Plaintiff for the Plaintiff to take care of the suit property for the benefit of the deceased’s children. He also stated that his clan never paid the Defendant’s dowry. 7. On cross-examination by Mr. Murunga, counsel for the Defendant, he admitted that the deceased used to stay with the Defendant before his death. He also stated that the deceased’s body was taken to the Defendant’s house after removal from the mortuary. He admitted that under their customs, a married man’s body is only taken to his wife's or wives' homes and not any random rental house. **ANALYSIS & DETERMINATION** 1. This court has given due regard to the pleadings, the evidence on record, as well as the written submissions filed and the authorities cited by the parties herein. 2. It is this court’s considered view that the issues for determination are: 3. *Whether the Defendant was the deceased’s wife* 4. *Whether there exists a customary trust in favour of the Defendant with respect to the suit property* 5. *Who should bear the costs of this suit* ***Whether the Defendant was the deceased’s wife*** 1. The Plaintiff took the position that the Defendant was a caretaker on the suit property who had outlived her stay on the suit property; hence she should be evicted from the suit property. 2. The above position was disputed by the Defendant, who maintained that he was the deceased’s second wife since sometime in 2020. She produced the Napara location chief’s letter dated 05th October 2023, the Namang’ofulo Secondary School principal’s letter dated 31st March 2023, and the deceased’s funeral program showing that she was the deceased’s second wife. 3. DW2, who is the deceased’s clan’s secretary, corroborated the Defendant’s testimony that she was the deceased’s wife by producing the deceased’s clan’s lufu meeting minutes which recognized the Defendant as the deceased’s second wife. 4. The Plaintiff did not impeach the contents of the letters and the minutes produced by the Defendant in support of her position that she was the deceased’s 2nd wife. 5. Whereas the deceased’s father feigned ignorance of the contents in the deceased’s funeral program and sought to identify the Defendant as the deceased’s friend, he admitted that the Defendant used to stay with the deceased on the suit property in a house constructed by the deceased. He also added that the deceased's body was taken to the Defendant’s house before burial and that, per his clan’s culture, a married man’s remains could only be taken to his wife’s or wives' homes before burial, not to any other random woman’s house staying in a rented house. 6. It should be remembered that the deceased’s father’s age qualifies him as an expert in his clan’s customary law (see **Ernest Kinyanjui Kimani v Muiru Gikanga and Another (1965) EA 735**). 7. The evidence led by the Defendant in support of her position that she was the deceased’s wife above shows that the deceased’s clan, the deceased’s workmates, the deceased’s area chief, and even the deceased’s father regarded her as the deceased’s 2nd wife. This shows that the deceased and the Defendant held out to all those who knew them as husband and wife. 8. The Plaintiff appeared to suggest during the hearing of this case that, given the fact that she celebrated her marriage with the deceased on 15th April 2006 at Luanda Catholic under the African Christian Marriage and Divorce Act (repealed), as evidenced by her Certificate of Marriage on record, the deceased lacked the capacity to marry the Defendant in 2020. 9. The argument by the Plaintiff that the deceased could not contract a valid marriage in 2020 while his monogamous marriage with the Plaintiff was subsisting is not an idle one. This position can be gleaned from **Gatwiri v Karonga (Succession Appeal E001 of 2023) [2026] KEHC 1061 (KLR).** 10. Be that as it may, when confronted with a situation almost similar to the situation obtaining in this case. The Court of Appeal in **Musela v Wambui & another & 3 others (Civil Appeal E504 of 2020) [2024] KECA 679 (KLR)** eloquently rendered itself thus: *“59.In MNM v DNMK & 13 others [2017] eKLR, this Court considered a similar situation where the deceased had married his first wife under customary law; and said to have divorced her but with no proof that the same was dissolved. He got into a 2nd marriage though it is not clear how the same was contracted. Then he had a statutory marriage with a 3rd wife said to have been dissolved, though no evidence was adduced. Again, he got himself a 4th wife who claimed but failed to prove customary marriage, and where there was cohabitation for 6 years. They held themselves out as, man and wife, and there was a clear recognition by family. This Court had this to say:* *“This leads us to the question whether on the evidence before it, the court could have presumed a marriage between the deceased and E based on cohabitation and the parties holding themselves out to society as husband and wife. In Mbogoh v Muthoni & another [2006] 1 KLR 199, this Court stated that where the requirements of statutory or customary marriage have not been proved and the issue of presumption of marriage has been raised, the Court had to go further and consider whether, on the facts and circumstances available on record, the principle of presumption of marriage was applicable. (See also Kimani v Kimani & 2 others [2006] 2 KLR 272)…* *60.Based on the finding of this Court in MNM v DNMK & 13 others, we fault the learned judge to the extent that he found that Section 3(5) of the Act did not apply to the circumstances of Grace and Magdalene. We are also of the view that Section 3(5) of the Act ought to be read alongside Article 20 of the Constitution which provides that to give meaning to the current situation facing women in Kenya:* *20(1)The Bill of Rights applies to all laws and binds all state organs and persons.* *2.Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom* *3.In applying a provision of the Bill of Rights, a court shall-* *a.develop the law to the extent that it does not give effect to a right or fundamental freedom, and* *b.adopt the interpretation that most favours the enforcement of a right or fundamental freedom.* *4.In interpreting the Bill of Rights, a court, tribunal, or other authority shall promote-* *a.the values that underlie an open and democratic society based on human dignity, equality, equity and freedom* *b.the spirit, purport and objects of the Bill of Rights.* *Further, Article 27(1) provides that:* *Every person is equal before the law to equal protection and equal benefit of the law.* *61.Applying Articles 20 & 27 of the Constitution, and without having to discriminate against women in “come we stay” marriages or where partial customary practices are met and parties enter into long cohabitation, we find and hold that the circumstances that led to the enactment of Section 3(5) of the Act apply mutandi mutandis to women who find themselves in ‘come we stay’ marriages, a prevalent phenomenon in our country as this is the right thing to do. Finding to the contrary will smack of injustice and discrimination to the myriad of Kenyan women who find themselves in such situations.* *62.Having arrived at the above determination, we find and hold therefore for purposes of the Act that Grace and Magdalene are widows of the deceased.”* 1. Guided by the authority above, this court returns a finding that the Plaintiff and the Defendant are the deceased’s widows for purposes of succession. ***Whether there exists a customary trust in favour of the Defendant with respect to the suit property*** 1. The Plaintiff stated that being the suit property’s registered owner, she was holding a title against the whole world which could only be defeated in a manner permitted by the law. 2. The Defendant, on her part, maintained that the suit property was the deceased’s inheritance from his father, which she was entitled to as the deceased’s widow. The Defendant was impliedly claiming customary trust over the suit property. 3. The evidence led before this court shows that the suit property’s original registered owner was the deceased’s father, Simon Namalisie Nalondo. He testified before this court that he handed over the suit property’s title deed to the Plaintiff after the deceased’s death for the Plaintiff to take care of the suit property for the benefit of the deceased’s children. It is during this period that the Plaintiff caused the suit property to be registered in her name. 4. The foregoing shows that it is not disputed that the Plaintiff is the registered owner of the suit property, and that the title to the suit property was transmitted to her when the deceased’s father entrusted her with his title deed to the suit property for her to take care of the suit property on behalf of the deceased’s children. 5. Section 26 of the Land Registration Act provides that a court takes a certificate of title as prima facie evidence that the person named as the proprietor of the suit property is the absolute and indefeasible owner, except where ownership is challenged based on fraud or misrepresentation. 6. It provides as follows: *“(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.”* 1. The Defendant in this matter has challenged the Plaintiff’s title to the suit property by stating that the suit property was a share of the deceased’s inheritance from his father. 2. Angote J in **Karenju v Kamau (Environment & Land Case 429 of 2012) [2025] KEELC 273 (KLR)** stated as follows on the path to be taken where the validity of the title is challenged: *“Where the validity of a certificate of title has been challenged, it is not enough to wave a certificate or title as proof of ownership. A person must therefore establish the root of his title. This position has been upheld by the Supreme Court in the case of Dina Management Limited vs County Government of Mombasa & 5 Others [2023] KESC 30 (KLR) as follows:“As held by the Court of Appeal in Munyu Maina v Hiram Gathiha Maina Civil Appeal No 239 of 2009 [2013] eKLR, where the registered proprietor’s root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register.”(Emphasis added)* 1. The root of the Plaintiff’s title to the suit property can be gleaned from Simon Namalisie Nalondo’s testimony on the circumstances under which the Plaintiff became the suit property’s registered owner. That testimony lends credence to the Defendant’s position that the suit property was a share of the deceased’s inheritance from his father’s land. 2. Therefore, there is no doubt that Simon Namalisie Nalondo intended that the deceased’s estate benefits from the suit property when he handed the suit property’s original title deed to the Plaintiff. That in effect created a customary trust in favour of the deceased over the suit property. 3. This court has already made a finding that the Defendant is the deceased’s widow. This begs the question of whether there is a customary trust in her favour over the suit property. 4. The Supreme Court in **Kiebia v M’lintari & another (Petition 10 of 2015) [2018] KESC 22 (KLR)** stated thus on the ingredients of a customary trust *“52…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.* *53.We also declare that, rights of a person in possession or actual occupation under Section 30(g) of the Registered Land Act, are customary rights. This statement of legal principle, therefore reverses the age old pronouncements to the contrary in Obiero v. Opiyo and Esiroyo v. Esiroyo. Once it is concluded, that such rights subsist, a court need not fall back upon a customary trust to accord them legal sanctity, since they are already recognized by statute as overriding interests.”* 1. Applying the principles above to the facts of this case, it is evident from the evidence on record that: the suit property was the deceased’s family land before the Plaintiff procured its registration in her name; the Defendant is a member of the deceased’s family; the Defendant is a close relation of the deceased’s family by dint of her marriage to the deceased; the Defendant is a beneficiary of the suit property by dint of her marriage to the deceased; and that the Defendant’s claim to the suit property is a claim against the Plaintiff who is a member of the deceased’s family. 2. The analysis above shows that the Defendant’s claim to the suit property is in all fours with the ingredients of a customary trust established by the Supreme Court in the Kiebia case (supra). 3. In the circumstances, this court finds and holds that there exists a customary trust in favour of the Defendant with respect to the suit property. 4. Section 28 of the Land Registration Act under which the suit property is registered recognizes customary trust as an overriding interest. To this end, this court draws inspiration from **Luka v Riinya & another (Environment and Land Appeal E037 of 2022) [2026] KEELC 133 (KLR**) where Eboso J stated as follows: *“28. Section 28 of the Land Registration Act recognizes a customary trust as one of the overriding interests subject to which a registered title may be held without it being noted in the land register…* *42. Consequently, having evaluated the evidence that was placed before the trial court, this court comes to the conclusion that the threshold outlined by the Supreme Court of Kenya in the case of Kiebia [supra]was properly met. In the circumstances, it is the finding of the court that land parcel number Nkuene/ U-Mikumbune/1685 is part of the larger family/ancestral land that was at all material times held in customary trust for the family of the late Kireria Kirurui, to which the late Luka Murithi, Florence Riinya and Janet Guantai belonged. All the impugned registrations were and are subject to the said customary trust.”* 1. The findings above leave no doubt in this court’s mind that the Defendant is entitled to a share of the suit property. Therefore, this court cannot grant the eviction order she sought against the Defendant. ***Who should bear the costs of this suit*** 1. The general rule is that costs follow the event. However, section 27 of the Civil Procedure Act permits a court to depart from this rule where the circumstances of a case permit. 2. Considering the relationship between the parties herein, and in an effort not to antagonize them further, it is this court’s view that this is a proper matter for this court to depart from the general rule on costs. 3. It is against this backdrop that this court orders each party to bear their costs. **DETERMINATION** 1. The upshot of the foregoing is that the Plaintiff’s suit is dismissed. 2. Each party to bear their own costs. 3. Judgment accordingly. **Read, signed, and delivered in open Court at Bungoma this 06th day of August 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Mokaya for the Plaintiff Ms. Wakasa for the Defendant Defendant C/A: Mr. Rioba