Longolereng & another v Limangura & 2 others (Environment and Land Appeal E015 of 2024) [2025] KEELC 1167 (KLR)
The bottom line
#A Kenyan court has ruled that land registered by a trustee belongs to the family that has lived on it for over 50 years, not to those who bought it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.If the record of appeal meets the requirements of the law
- 2.If the appellants pleaded any trust against the respondents
- 3.If the appellants proved their claim to the required standards
- 4.If there was a competent counterclaim against the appellants
- 5.If the respondents proved their counterclaim
- 6.If the appeal has merits
- 7.What is the order of costs
Key legal issues
#Pleading of customary trust
The claim to customary trust was properly pleaded in the plaint
The plaint dated 13/3/2023 pleaded that the suit parcels were ancestral land inherited from the 1st appellant's father, the circumstances of the registration of the late Clement Amon as trustee, and the appellants' beneficial interest through long use, possession, occupation and developments spanning over 50 years. Parties are bound by pleadings from which issues flow; despite the parties not framing issues, the court found the trust claim correctly pleaded.
Proof of customary trust
The appellants proved the customary trust to the required standard
Applying the Kiebia -vs- M'Lintari tests, the relationship of the parties to the recorded owner was undisputed; PW1's evidence on the history of the land and the trust registration was consistent and unchallenged in cross-examination; defence witnesses including DW1, DW6 and DW7 admitted the appellants' houses, structures, farming and occupation. Possession and occupation are key ingredients of customary trust, and the evidence showed the appellants occupied the land with the full knowledge of the late Clement Amon.
Root of title of the 1st respondent and validity of the sale to the 2nd and 3rd respondents
The 1st respondent had no good title to pass; the parcels belonged to a deceased person's estate and the dealings were irregular
The late Clement Amon was still the recorded owner at his death, making the land free property of his estate under the Law of Succession Act. The 1st respondent pleaded and produced no letters of administration or executed transfer forms; the adjudication records had omissions and anomalies contrary to the Land Adjudication Act. The 2nd and 3rd respondents produced no transfer records or proof of consideration, and failed to establish the bona fide purchaser doctrine under Katende -vs- Haridar.
Bona fide purchaser for value doctrine
The 2nd and 3rd respondents cannot invoke the doctrine; they ignored clear warning signs of overriding interests
The doctrine must be pleaded and proved - honesty, good faith, lack of knowledge, valuable consideration and valid title. The purchasers never asked the seller's immediate family, whom they knew, whether they objected to the sale; sale agreement D. Exhibit 5(a) contained an explicit clause referring to the appellants. Due diligence required them to visit the land and enquire who was in possession; they looked the other way despite the appellants' evident presence.
Record of appeal completeness
Objection to the record of appeal failed; documents from the advocate's office do not form a proper record but the objection did not defeat the appeal
Order 42 Rule 3(4) defines what constitutes a record of appeal; documents included in the record should be drawn from the original trial court file, not the advocate's office file, save on reconstruction. The court noted the irregularity but proceeded to determine the appeal on the merits, finding the trial judgment inconsistent with the pleadings and evidence.
Legal principles established
#- A person who waves a title instrument must show the title was legally, formally and regularly acquired, free of encumbrances including those not noted in the register
- Property of a deceased person cannot validly be dealt with without letters of administration; a nullity cannot be passed on to a third party
- A purchaser must conduct due diligence, including visiting the suit land and establishing who is in occupation
Court orders
#- 1.The judgment of the trial court is set aside and replaced with an order allowing the primary suit
- 2.The counterclaim by the respondents is dismissed
- 3.Costs of the lower court and of this appeal are awarded to the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's judgment (Order 42 of the Civil Procedure Rules); consent to sue under Section 30(1) of the Land Adjudication Act noted
Relief refused
#Site visit to the suit parcels
The ruling declining a site visit was not appealed against and a court will not assist a party to gather evidence
Admission of the photographs marked MFI-P7
Rejected for non-compliance with Section 106B of the Evidence Act and could not be cured under Article 159 of the Constitution
Costs
Costs of the lower court and in this appeal to the appellants
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.
Guided by the foregoing, I find that the judgment of the trial court was inconsistent with the pleadings and the evidence tendered. It is set aside and replaced with an order allowing the primary suit and dismissing the counterclaim by the respondents. Costs of the lower court and in this appeal to the appellants.
A nullity is a nullity. Land illegally or unprocedurally acquired by the 1st respondent without letters of administration and or proper paper trail could not be passed to the 2nd and 3rd respondents.
The burden is on he who waives an instrument of ownership to show that he acquired the title legally, formally and free of any encumbrances, including those not noted in the register.
Due diligence includes visiting the suit land, establishing who is in possession or occupation, and enquiring on what basis
Possession and occupation are key in leading evidence on customary trust.
Any dealing with the land after his demise would, therefore, amount to intermeddling with the property of a deceased person under Section 82(a) of the Law of Succession Act, Cap 160.
Issues in the judgment
#Death date of the late Clement Amon stated inconsistently in the judgment
Second inconsistent date of death of the late Clement Amon
Obvious typographical/garbled passages in the text, e.g. corrupted rendering of evidence discussion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Longolereng & another v Limangura & 2 others (Environment and Land Appeal E015 of 2024) [2025] KEELC 1167 (KLR)", Case Analysis (2025). Kitale ELC Land Appeal (Amended Memorandum of Appeal dated 9/10/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1167/eng@2025-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.