Kimbio v Kimbio (Environment and Land Appeal E010 of 2024) (Environment and Land) [2025] KEELC 1368 (KLR)

The court applied the Supreme Court's elements of customary trust in Isack M'inanga Kiebia v Isaaya Theuri M'lintari. Evidence showed the parties are siblings, the land was family land given by their late father to four brothers, and the Respondent acquired the parcel by demarcation in 2018 and title in 2019 without purchasing it. The Respondent called no family member to controvert the Appellant's and DW2's testimony. On a balance of probabilities the trust was proven.

The court restated Section 107(1)(2) of the Evidence Act as the applicable standard, then examined the root of the suit land. It noted the Respondent did not purchase the property, that family land was registered in his name, and that he failed to call other family members to rebut the evidence, so the Appellant proved the trust on a balance of probabilities.

The court found the magistrate erred by addressing the non-joinder issue, which was not pleaded, and by disregarding the testimony of the Appellant's witness Thomas Wandeto Kimbio, the siblings' elder brother. Order 1 rule 9 provides that a suit is not defeated by misjoinder or non-joinder because the court may deal with the matter as regards parties actually before it.

Having found the trust established, the court held the appeal merited and granted the relief sought in the Appellant's counterclaim before the trial court, setting aside the trial judgment and substituting it with dismissal of the Respondent's suit and the declaration of trust.