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ELCDismissedNot stated in the judgment as provided

Matiliku v Kilonzo & another (Environment and Land Appeal E006 of 2022) [2025] KEELC 5343 (KLR)

Environment and Land Court
17 July 2025
2,183 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that land registered in one person's name can still legally belong to the whole family under customary trust, dismissing the owner's appeal.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court against a trial magistrate's judgment which had dismissed the Appellant's claim for injunction and eviction over parcel Nzaui/Nziu/803 and allowed the Respondents' counterclaim declaring the parcel family land held in trust. The trial court had ordered cancellation of the Appellant's title and registration in joint names as trustees for the family of Kinyenze Mukai. On appeal, the Appellant argued the magistrate placed excessive weight on defence testimony, ignored her evidence, relied on extraneous factors, and that the Respondents lacked locus standi to counterclaim on behalf of estates without grants of letters of administration. The court, applying the retrial principle in Selle v Associated Motor Boat Co and the customary trust elements in the Supreme Court's M'Inanga decision, found that the parcel and neighbouring parcel 386 were ancestral land of Kinyenze Mukai demarcated in 1974 for the benefit of all his sons; the Appellant admitted the land was not purchased and that the 1st Respondent resided there with family graves on the land; and a 2012 clan resolution confirmed the sharing arrangement. The locus objection failed as it was raised for the first time on appeal and the trust had been proved by evidence. The court found the trial magistrate properly analysed the evidence and dismissed the appeal, but varied the lower court's orders 2 and 3 by adding the name of Regina Kavemba Maingi as a registered trustee. Costs were not awarded as the parties are members of the same family.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial magistrate properly analysed the evidence adduced before arriving at the conclusion he reached in the judgment
  2. 2.Whether the suit property Nzaui/Nziu/803 was family land held under a customary trust for the family of Kinyenze Mukai
  3. 3.Whether the Respondents had locus standi to bring the counterclaim on behalf of the estates of deceased persons without letters of administration

Key legal issues

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01

Whether a customary trust existed over parcel Nzaui/Nziu/803

Holding

Yes - the parcel was ancestral land registered to the first born son for the benefit of all sons of Kinyenze Mukai, and the evidence met all five M'Inanga elements

Reasoning

The court found that the suit property and parcel 386 were both originally family land of Kinyenze Mukai, registered on the same date during demarcation in 1974. The Appellant admitted the land was not purchased and that the 1st Respondent lived there. Clan resolution evidence and the family treating both parcels as one supported the trust finding.

p. 4
02

Whether the Respondents lacked locus standi to counterclaim for the estates without a grant

Holding

The objection failed because it was raised for the first time on appeal and the trust had been proved by evidence

Reasoning

The court held that the locus issue was never raised in the lower court, submissions are not evidence and cannot replace evidence, and the issue of trust was proved by evidence adduced at trial. The point therefore did not avail the Appellant.

p. 4
03

Whether the trial magistrate misanalysed the evidence

Holding

No - the trial magistrate properly analysed the evidence and considered no extraneous factors

Reasoning

The court reviewed the evidence including green cards, cross-examination admissions and clan meeting testimony, and found the trial magistrate's analysis sound. None of the five grounds of appeal was made out.

p. 4

Legal principles established

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  • A first appellate court must reconsider and evaluate the evidence itself, making due allowance for not having seen or heard the witnesses, and is not bound by the trial court's findings of fact
  • Elements that qualify a claimant as a trustee of family land under a customary trust as set out in M'Inanga v M'Lintari

Court orders

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  1. 1.The appeal is dismissed with no orders as to costs
  2. 2.The lower court judgment numbers 2 and 3 are varied by adding the name of Regina Kavemba Maingi
  3. 3.A declaration that land parcel No. Nzaui/Nziu/803 belongs to the family of the late Kinyenze Mukai and the same be registered in the names of Jane Muthini Matiliku, Alexander Mbithi Kilonzo and Regina Kavemba Maingi to hold in trust for themselves and other beneficiaries
  4. 4.The Land Registrar, Makueni to cancel the title deed issued to the Plaintiff and register the land in the joint names of the Plaintiff and the first and second Defendants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Magistrates' Court
Not stated
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's judgment (appeal by way of retrial)

Relief refused

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The Appellant's claim for injunction and eviction of the Respondents from the suit property

The trial magistrate found the Respondents had an interest in the suit property and the appeal against that finding failed

p. 4

Setting aside of the trial court's declaration of customary trust

The evidence met all the elements of a customary trust as set out in the M'Inanga case

p. 4

Costs

No orders as to costs, as the parties are members of the same family

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I therefore find no merit in this appeal which is dismissed with no orders as to costs as the parties are members of the same family. I will only vary the lower court judgment number 2 and 3 by adding the name of Regina Kavemba Maingi.
p. 4Disposition - appeal dismissed with variation of the lower court orders
A declaration be and is hereby made that land parcel No. Nzaui/Nziu/803 belongs to the family of the late Kinyenze Mukai and the same be registered in the names of the Plaintifi Jane Muthini Matiliku, the first Defendant Alexander Mbithi Kilonzo and the third Defendant Regina Kavemba Maingi to hold in trust for themselves and other beneficiaries.
p. 4Declaration of customary trust and registration of trustees
The land Registrar, Makueni to cancel the title deed issued to the Plaintifi and register the land in the joint names of the Plaintifi and the first and second Defendants.
p. 5Order to the Land Registrar, Makueni
If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land.
p. 2Presumption of customary trust

Issues in the judgment

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minor

The varied order 3 as reproduced refers to registration in the joint names of the Plaintiff and the first and second Defendants, whereas varied order 2 names the Plaintiff, first Defendant and third Defendant, leaving uncertainty as to whether the third Defendant is captured in the registration order

minor

Recurring typographical error 'Plaintifi' for 'Plaintiff' in the reproduced orders

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Matiliku v Kilonzo & another (Environment and Land Appeal E006 of 2022) [2025] KEELC 5343 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5343/eng@2025-07-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.