Osano & 10 others v Osano alias Peter Ouma Osano & 2 others (Environment and Land Case E049 of 2021) [2025] KEELC 4851 (KLR)
The bottom line
#The Environment and Land Court in Kisumu dismissed a family's claim that two parcels were held in customary trust, and ordered removal of cautions on the titles.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st and 2nd Defendants held the suit properties in trust for the Plaintiffs under a customary trust
No customary trust was proved. The properties were purchased by the 1st Defendant and were not family or ancestral land of the deceased
Applying the Isack M'inanga Kiebia elements, the court found no evidence that the suit properties were family or clan land before registration. The deceased was alive during adjudication, assisted the adjudication officer, and could have registered the land in his own name had it belonged to him; instead he settled his second family on Plot No. 163 registered in his own name. The 1st Defendant showed he was a businessman capable of purchasing the properties. No trust was therefore implied or proved.
Whether the suit properties were registered irregularly and illegally, including alleged fraud against the 3rd Defendant
No fraud or irregularity was proved; the claim of collusive alteration of adjudication records was unsupported by evidence
Fraud must be pleaded and proved; the Plaintiffs alleged that the adjudication records were altered in collusion with the 3rd Defendant, but placed no evidence before the court to support that allegation. The adjudication records produced by the 1st Defendant showed the parcels were first registered in the names of the 1st and 2nd Defendants, and no objection was raised at the time.
Whether the 1st Defendant's counterclaim succeeds
The counterclaim succeeded only in part: removal of the cautions was granted, but the injunction was refused for lack of evidence of interference
The court found no justification for the cautions registered by the Plaintiffs over the titles and ordered their removal. However, there was no evidence of trespass or interference by the Plaintiffs, and the 3rd Plaintiff could not be restrained from visiting her parents' home which remains on Plot No. 134, so the injunction was declined.
Legal principles established
#- A customary trust, if proved, is one of the trusts to which a registered proprietor is subject under the proviso to Section 28 of the Registered Land Act
- Not every claim of a right to land qualifies as a customary trust; the claimant must establish the elements set out by the Supreme Court
- The legal burden of proof lies with the party who desires the court to give judgment as to a legal right or liability
Court orders
#- 1.The Plaintiffs' suit is dismissed
- 2.The 1st Defendant's counterclaim is allowed in terms of prayer [a] of the defence and counterclaim dated 1st February 2022; the 3rd Defendant shall remove forthwith the cautions registered against land parcels Kisumu/Kanyakwar "B"/134 and Kisumu/Kanyakwar "B"/135 at the instance of the Plaintiffs
- 3.Each party shall bear its costs of the suit and the counterclaim
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to ownership, registration and trust over land (Article 162(2) of the Constitution is implicit; not expressly cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osano & 10 others v Osano alias Peter Ouma Osano & 2 others (Environment and Land Case E049 of 2021) [2025] KEELC 4851 (KLR)", Case Analysis (2025). Not stated in the judgment text (Kisumu ELC suit filed 8th December 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4851/eng@2025-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.