Teskin & 4 others v Makokha & 2 others (Environment & Land Case E006 of 2022) [2025] KEELC 951 (KLR)
The bottom line
#A Bungoma court dismissed a family land claim, ruling that land validly sold by parents under written agreements is no longer ancestral land.
What this practically means
#Executive summary
#Key legal issues
#Whether a customary trust existed over the suit land
No. Although the original parcel devolved from father to son and was intended as family land, the plaintiffs' parents validly sold portions under written sale agreements, so the land ceased to be ancestral; further, the plaintiffs did not challenge the sale agreements or seek revocation of the grant
The court applied the Supreme Court's elements of customary trust in Kiebia v M'Lintari and found that while the original parcel was family land devolving inter-generationally, the plaintiffs' own family members sold the land under valid written agreements complying with the repealed section 3 of the Law of Contract Act. The plaintiffs never contested those agreements, and instead of revoking the grant they claimed was fraudulent, they sought to collaterally attack it, which would amount to sitting on appeal over the succession court.
Whether the 2nd defendant's counter-claim succeeds
Yes in part: the plaintiffs were declared trespassers, ordered to vacate within 6 months, permanently restrained, and to pay Kshs.20,000 general damages; mesne profits were refused for want of proof
Relying on sections 24, 25(1) and 26 of the Land Registration Act, the court found the 2nd defendant's certificate of title unchallenged, making him absolute proprietor. The plaintiffs, who admitted living on the land, were trespassers. Although an eviction order under section 152E of the Land Act required proof of service of notices to vacate, the court used its inherent discretion to grant a vacation period. General damages for trespass (actionable per se) were awarded at a minimal sum, but mesne profits failed for want of substantiation.
Legal principles established
#- A customary trust must be proved by evidence and is never implied by the court absent a clear intention to create a trust
- Where land claimed as ancestral has been validly sold by family members under written agreements complying with the repealed section 3 of the Law of Contract Act, it ceases to be ancestral land
- A party alleging fraudulent issuance of a grant must first seek revocation of that grant under section 76 of the Law of Succession Act before seeking declarations over the resultant parcels
- Mesne profits must be substantiated with material demonstrating how the amount claimed was arrived at
- Trespass to land is actionable per se and damages may be awarded without proof of specific damage
Court orders
#- 1.The plaintiffs' case against the defendants is dismissed
- 2.A declaration that the plaintiffs are trespassers on L.R No. N.Malakasi/E.Sasuri/796
- 3.The plaintiffs shall vacate L.R No. N.Malakasi/E.Sasuri/796 within 6 months, failing which the 2nd defendant may apply for an eviction order
- 4.A permanent injunction restraining the plaintiffs, their agents, servants, assignees or any other person acting through them from encroaching on N.Malakasi/E.Sasuri/796
- 5.The plaintiffs to pay the 2nd Defendant general damages in the sum of Kshs.20,000
- 6.The plaintiffs shall bear the costs of the suit and the 2nd defendant's counter-claim
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land and environment disputes) - not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teskin & 4 others v Makokha & 2 others (Environment & Land Case E006 of 2022) [2025] KEELC 951 (KLR)", Case Analysis (2025). Not stated in judgment (Plaint dated 26/03/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/951/eng@2025-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.