Mbanda & 3 others v Mbanda & another
The bottom line
#Kenya's Court of Appeal confirmed that registering family land in your name does not wipe out customary trust rights of relatives living on it.
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 erred in applying the principles of representative suits
- 2.Whether the learned judge erred in evaluating the principles governing customary trust of land
Key legal issues
#Representative suit
The appellants did not substantiate the alleged error on representative suits; the plaint contained no averment that the respondents sued on behalf of any group, and in any event misjoinder or non-joinder does not defeat a suit under Order 1 Rule 9.
The Court noted the appellants merely lamented about the judge's interpretation of representative suit principles without substantiation. A perusal of the plaint revealed no averment that the respondents sued on behalf of a group. Order 1 Rule 9 of the Civil Procedure Rules provides that no suit shall be defeated by misjoinder or non-joinder, and the court may deal with the matter as regards parties actually before it. This limb of the appeal was therefore without merit.
Customary trust over registered land
The 1st respondent established a customary trust over parcel No. 2513 satisfying all five Kiebia v M'lintari criteria; the trust binds the 1st appellant as registered proprietor notwithstanding registration.
Applying the Supreme Court's five-element test in Kiebia v M'lintari, the Court found parcel 2513 originated from ancestral parcel 654 issued at initial adjudication; it was registered in the 1st appellant's name, the claimant's father; the 1st respondent and his brothers were in actual occupation; and the claim was against a family member as registered proprietor. The former Obiero v Opiyo and Esiroyo v Esiroyo position that registration extinguishes customary rights was displaced by Kiebia, which held those decisions rested on faulty premises. Customary trust survives registration as an overriding interest under section 28 of the Land Registration Act.
Rights of registered proprietor versus customary rights
Customary rights cannot be defeated by registration; the registered proprietor holding land in customary trust ought to have sought the consent of the beneficiary before dealings.
The Court traced the shift from Obiero v Opiyo and Esiroyo v Esiroyo, which held customary rights extinguished on registration, to Kiebia v M'lintari, which found those decisions conceptually and contextually flawed for ignoring trust land provisions of the retired Constitution. Under the proviso to section 28 of the repealed Registered Land Act, now codified in section 28(b) of the Land Registration Act 2012, customary trusts remain overriding interests. The 1st appellant's long-occupation dealings without the 1st respondent's consent were therefore impermissible.
Legal principles established
#- A customary trust, once established, is not extinguished by first registration and remains an overriding interest binding the registered proprietor
- On a first appeal, the Court of Appeal must re-evaluate the evidence and reach its own conclusions
- A suit shall not be defeated by misjoinder or non-joinder of parties; the court deals with the rights of parties actually before it
Court orders
#- 1.Appeal dismissed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Kakamega
- Petition No. 171 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 31(1) of the Court of Appeal Rules, 2022
Relief refused
#Appellants' prayer to set aside the ELC judgment and dismiss the respondents' suit
The Court found the 1st respondent had established a customary trust over parcel No. 2513 and detected no error in the trial court's findings
Costs
Appeal dismissed with no orders as to costs
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.
Concurrently, we find that this appeal lacks merit and proceed to dismiss it with no orders as to costs.
a customary trust, once established, is not extinguished by first registration. Rather, it remains an overriding interest binding upon the registered proprietor
the evidence on record demonstrates that the 1st respondent's claim satisfied all five criteria established by the Supreme Court
No suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
The Court's mandate as the first appellate court is to re-evaluate the evidence, assess it and reach a conclusion.
Issues in the judgment
#Conflicting dates for the ELC judgment: the appeal header says 17th November 2019 while the body says 17th December 2019
The suit is described as a plaint filed in the ELC yet the appeal header styles it Petition No. 171 of 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbanda & 3 others v Mbanda & another", Case Analysis (2026). Civil Appeal 128 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1878/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.