Issa v Suleiman & 3 others (Civil Appeal E025 of 2023) [2025] KECA 1336 (KLR)
The bottom line
#Kenya's Court of Appeal upheld that a Mombasa house is family trust property, ruling a properly produced 1979 family agreement proved the trust despite the appellant's forgery and production objections.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge was at fault in holding that the house without land situate on the suit property was held in trust for both the appellant and the respondents, and that the respondents were entitled to the ground floor thereof
- 2.Whether the Agreement of 4th June 1979 was duly produced and proved in evidence
Key legal issues
#Whether the Agreement of 4th June 1979 creating the trust was duly produced and proved in evidence
It was: the 1st respondent applied to have the documents produced as exhibits pex 2-5, including the Agreement marked PMFI 1, and the Judge marked it as PEx-1; its authenticity was uncontroverted.
The record showed PW1 expressly applied to produce the documents as exhibits, including the Agreement marked for identification. The Judge then marked it as PEx-1. The Agreement was executed by both fathers, attested by an advocate of Chudasama & Company and stamped. The appellant's assertion that it was merely marked for identification was contradicted by the record, and its authenticity was uncontroverted.
Whether the suit property (the house without land) was held in trust for the respondents and the appellant
Yes. The Agreement expressly recorded that the plot land was bought by the respondents' father, the new house was registered in the appellant's father's name due to life challenges, and the house belonged to the family, entitling the respondents to the ground floor as beneficial owners.
The Agreement's contents showed the land was purchased by the respondents' father and registered in the appellant's father's name for practical reasons, with the house belonging to the family and the appellant's father entitled to build upward. Executed by both fathers and attested by an advocate with an official stamp, its existence and authenticity were uncontroverted, sustaining the trial court's trust finding.
The mandate of a first appellate court
The Court on a first appeal should reconsider and evaluate the evidence and draw its own conclusions, but interfere with the trial judge's factual findings only with caution.
Citing Ng'ati Farmers and Peters v Sunday Post, the Court affirmed that it has jurisdiction to review evidence but should exercise caution in departing from the trial judge's findings, since the trial judge saw and heard the witnesses. This framework was applied but, on its own evaluation of the record, the Court found the trial judge's trust finding sound.
The abandoned 3rd ground concerning the identity of Hamude
The ground was not pursued and was inconsequential to the existence and validity of the trust.
The appellant did not pursue the question whether Hamude listed as a beneficiary was the respondents' mother or the appellant's sister. The Court held that even if determined, it bore no consequence on the validity of the trust, so nothing turned on it and it did not affect the appeal's outcome.
Legal principles established
#- A document marked for identification and subsequently applied to be produced as an exhibit by a witness, and marked by the court, is duly produced in evidence and may found a holding; a court forming an opinion whether a document is proved considers all facts and evidence on record, not the document alone.
- On a first appeal, the Court of Appeal must reconsider and evaluate the evidence itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses, and it will interfere with findings of fact only with caution.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The judgment and decree of the ELC at Mombasa (N. A. Matheka, J) dated 6th December 2022 is upheld
- 3.The appellant shall bear the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court at Mombasa
- ELC Case No. 398 of 2017
- Jurisdiction invoked
- First appellate jurisdiction under Article 164 of the Constitution of Kenya over appeals from the Environment and Land Court
Relief refused
#The appellant's appeal against the finding of a trust and beneficial ownership
The Agreement was duly produced and proved, and the trust finding was not erroneous
Costs
The appellant shall bear the costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case.
When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the Court would look not at the document alone but it would take into consideration all facts and evidence on record.
The uncontroverted evidence of its existence and authenticity leads to the inescapable conclusion that the learned Judge was not at fault in holding that the suit property was held in trust for both the respondents and the appellant, and that the respondents were the beneficial owners of the ground fioor thereof.
In view of the foregoing, we find that the appeal fails and is hereby dismissed in its entirety. Consequently, the judgment and decree of the ELC at Mombasa (N. A. Matheka, J) dated 6th December 2022 is hereby upheld.
The appellant shall bear the costs of the appeal. Orders accordingly.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Issa v Suleiman & 3 others (Civil Appeal E025 of 2023) [2025] KECA 1336 (KLR)", Case Analysis (2025). Civil Appeal at Mombasa (appellate jurisdiction). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1336/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.