Ondora v Ondoro (Land Case E007 of 2023) [2025] KEELC 5387 (KLR)
The bottom line
#A Siaya court ruled that a stepson holding registered family land must transfer the portion his stepmother occupies to her and her children because it is held in trust.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the defendant holds 0.85 ha out of the land parcel North/Ugenya/Doho/169 in trust for the plaintiff and her children
- 2.Whether the Plaintiff is entitled to the reliefs sought
- 3.Whether the orders sought in the counterclaim should issue in favor of the defendant plaintiff in the counterclaim
- 4.Who should bear the costs of the main suit and counterclaim
Key legal issues
#Whether a customary/constructive trust arises over registered family land in favour of the plaintiff
Yes - the plaintiff proved the suit land was family land before registration, that she is a family member by marriage, and that her claim is directed at the registered proprietor who is family, satisfying the Isack M'Inanga Keibia criteria.
Applying the Supreme Court's five-element test, the court found the land was family land before registration: all wives and children of Ondoro lived on parcel 169, parcel 188 had no homesteads and was used for family farming, the defendant's own mother was buried on parcel 169, and Luo custom placed the youngest son in the father's boma. The plaintiff's membership of the family by marriage was never denied. Equity therefore intervened against the registered title, trust being an overriding interest under Section 28 of the Land Registration Act.
Whether the defendant's registered title defeats the claim
No - the defendant's first-registration hypothesis was unsupported by evidence, and a trust overrides a registered title.
The defendant argued both parcels were registered the same day and each party knew what they were getting, but led no evidence to that effect, leaving the hypothesis a mere hypothesis. Entries 4 and 5 of 7/6/2022 on the green card favoured the defendant. Relying on the Shah v Mombasa Bricks decision of the Supreme Court, the court held that the right to property under Article 40 is not absolute and trust, including constructive trust, is an overriding interest under Section 28 of the Land Registration Act.
Whether the specific portion of 0.85 HA claimed was proved
Not established with precision; the court ordered a survey to ascertain the portion actually occupied and used for cultivation.
The parties disputed the size claimed - the plaintiff asserted a half share while the defendant placed her occupation at 0.2Ha, and the boundary was a trench not informed by survey. No survey report was produced. Invoking its power under Section 13para 5 of the Environment and Land Court Act to grant any relief that is fit and just, the court directed the Land Surveyor and Land Registrar to survey and excise the portion in the plaintiff's occupation, to be transferred to her and her children.
Legal principles established
#- A trust, including constructive trust, is an overriding interest against a registered title and may defeat a certificate of title.
- Not every claim of a right to land qualifies as a customary trust; the nature of the holding and intention of the parties are essential.
- The burden of proving a trust lies on the party pleading it.
Court orders
#- 1.A declaration that the Defendant holds the portion in occupation by the plaintiff out of land parcel North/Ugenya/Doho/169 in trust for the plaintiff and her children
- 2.The Land Surveyor Ugenya and the Land Registrar Ugenya shall visit the suit property within 90 days of the judgment, ascertain and survey the portion in occupation of the plaintiff, identify the exact boundaries and cause it to be excised
- 3.The exercise shall be conducted in the presence of the Chief Doho Sublocation and the defendant
- 4.The Defendant to transfer the excised portion to the plaintiff and her children within 45 days of the survey, in default the Deputy Registrar to sign the necessary documents
- 5.A permanent injunction restraining the Defendant and his agents from interfering with the plaintiff's use and enjoyment of the excised portion
- 6.The costs of the survey exercise and registration to be borne by the plaintiff
- 7.The counterclaim is dismissed with no orders as to costs
- 8.Each party shall bear its own costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 13[5] of the Environment and Land Court Act
Relief refused
#Declaration of trust over a specifically quantified 0.85 HA portion
The exact occupation was not established by survey; the court ordered survey and excision of the portion actually occupied instead of the claimed 0.85 HA
Defendant's counterclaim for eviction and permanent injunction
Plaintiff proved a trust over the portion she occupies; counterclaim dismissed
Costs
This being a suit that involves family members each party shall bear its costs of this suit; the costs of the survey exercise and registration shall be borne by the plaintiff; the counterclaim dismissed with no orders as to costs.
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.
A declaration that the Defendant holds the portion in occupation by the plaintifi out of land parcel North/Ugenya/Doho/169 in trust for the plaintifi and her children.
The Land Surveyor Ugenya and the Land Registrar Ugenya shall visit the suit property North/Ugenya/Doho/169 within 90 days of this judgement and ascertain and survey the portion of the land in occupation of the plaintifi and identify the exact boundaries and cause to be excised the said portion.
Pursuant to [2] the Defendant do transfer the excised portion out of land parcel North/Ugenya/Doho/169 to the plaintifi and her children within 45 days of [2] in default the Deputy Registrar of this court do sign all the necessary documents to efiect the transfer on behalf of the Defendant.
A permanent injunction hereby issues restraining the Defendant and his agents from in any way interfering with the plaintifi’s use and enjoyment of the portion as shall be registered in her name pursuant to the orders of this court.
One of these overriding interests is trust, which includes constructive trust.
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.
This being a suit that involves family members each party shall bear its costs of this suit.
Issues in the judgment
#Paragraph numbering is duplicated - two consecutive paragraphs are both numbered 34, the first discussing burial and Luo custom and the second the conclusion that the land was family land before registration.
The closing paragraph refers to the judgment as a 'Ruling' delivered virtually although no party or counsel appeared.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ondora v Ondoro (Land Case E007 of 2023) [2025] KEELC 5387 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5387/eng@2025-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.