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Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment· [2026] KECA 899 (KLR)

David Charo Baya & 3 others v Robert Kaingu Gunga

Court of Appeal of Kenya
15 May 2026
5,195 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that registering land owners as tenants in common defeats claims that they hold the property in trust for the wider family.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Mombasa against the dismissal of a suit in which the Appellants, sons and representatives of the late Katana Gunga Baya, sought a declaration that the suit property in Kilifi County was held under a customary trust by their late father and the Respondent, his brother, for the wider Gunga family, together with subdivision along customary boundaries and a permanent injunction. The property had been registered during the 1978 adjudication in the joint names of the two brothers. The trial court found that the Appellants failed to prove an intention at registration that the registered proprietors hold the land in trust for others, and that the Respondent's title was protected under the Land Registration Act. The Court of Appeal, applying its first appellate mandate to re-evaluate the evidence, dismissed the appeal. It applied the Supreme Court's decision in Isack M'inanga Kiebia on the elements of customary trusts and their status as overriding interests under sections 25 and 28 of the Land Registration Act, and reiterated that the burden of proving a customary trust lies on the party alleging it, that a trust is never implied absent a clear intention to create one, and that proof requires evidence of the root of title and the relevant customary law. Critically, the register recorded the two brothers as proprietors in common each holding an equal undivided half share, a registration structure the Court held denoted distinct legal ownership rather than a fiduciary holding and ousted any claim of an intention to create a trust. The adjudication fee receipt was held not to be, on its own, conclusive evidence of a trust. The judgment of the trial court was affirmed and the appeal dismissed with costs to the Respondent.

Key legal issues

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01

Whether a customary trust existed over the suit property

Holding

No customary trust was established. Although the land was once family land of the grandfather, the Appellants did not prove an intention at adjudication that the two registered proprietors would hold the land for the wider family. The register recorded the two brothers as proprietors in common with equal half shares, denoting distinct legal ownership rather than fiduciary holding.

Reasoning

The Court applied the Supreme Court's framework in Isack M'inanga Kiebia on the elements of a customary trust and the principle that a trust is never presumed absent clear intention. It re-evaluated the first-instance evidence as a first appellate court and found no adjudication records, committee minutes, or credible family agreement evidencing an intention to create a trust. The registration structure as tenants in common in equal shares was decisive against a fiduciary holding.

p. 9
02

Whether payment of adjudication fees by family members proves a trust

Holding

A receipt for adjudication fees paid by family members may be consistent with the land being regarded as family land but is not conclusive proof of a trust; evidence of an intention that registered proprietors hold for a wider family is required.

Reasoning

The Court distinguished between evidence consistent with family ownership and evidence of an intention to create a trust. Without adjudication records, minutes of the adjudication committee, or credible evidence of a family agreement, the receipt alone cannot found a trust, consistent with Muthuita v Muthuita on proof of the root of title and customary law.

p. 9
03

The first appellate court's mandate

Holding

As a first appellate court, the Court of Appeal must re-evaluate the evidence and draw its own independent conclusions while satisfying itself that the trial court's conclusions are consistent with the evidence.

Reasoning

The Court invoked Peter M. Kariuki v Attorney General and Nairobi Bottlers Limited v Imbuga, restating that the mandate under rule 31 of the Court of Appeal Rules, 2022 is to re-appraise the evidence, draw inferences of fact and, in effect, retry the case, subject to the absence of an advantage enjoyed by the trial court.

p. 5

Legal principles established

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  • A customary trust, if proved, is an overriding interest to which a registered proprietor is subject, but it is not every claim of a right to land that will qualify as a customary trust; the claimant must prove the nature of the holding and the intention of the parties at registration
  • The burden of proving a customary trust lies on the party alleging its existence, and a trust can never be implied by the court absent a clear intention to create one
  • Registration of proprietors as tenants in common in equal, defined shares is evidence that the parties intended distinct legal ownership, not a fiduciary holding, and ousts a claim of customary trust
  • Payment of adjudication fees by a family member, even jointly, is not conclusive evidence of a customary trust

Court orders

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  1. 1.Appeal dismissed with costs to the Respondent
On appeal from
High Court of Kenya (trial court, judge not named in judgment)
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules, 2022 (rule 31 mandate re-affirmed)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "David Charo Baya & 3 others v Robert Kaingu Gunga", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/899/eng@2026-05-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.