First Appeal from Chuka CMC E & L Case No 10 of 2015 (appeal number not stated in judgment)
The bottom line
#The Environment and Land Court at Chuka dismissed a sister's claim to two acres of her brother's land because she failed to properly plead and prove her alleged customary trust and will.
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 respondent proved that land parcel number Kiera/E.Magutuni/397 was ancestral/family land previously owned by her late father and was subsequently held by the appellants in trust
- 2.Whether the respondent proved that she was entitled to two (2) acres out of the suit land on account of the trust or at all
Key legal issues
#Whether a customary trust over the suit land was pleaded and proved
The respondent failed to plead particulars of the alleged will and trust and failed to lead cogent evidence of a customary trust; the trial court's inference of trust had no evidential basis
The court applied Section 28 of the Land Registration Act (customary trust as an unregistrable overriding interest), the Kiebia criteria from the Supreme Court, Order 2 rule 10 of the Civil Procedure Rules on specific pleading, and Sections 107 and 109 of the Evidence Act on burden of proof. The respondent led no evidence of the alleged will or of her father's ownership, and did not explain why she did not pursue her interest during land adjudication or through succession.
Whether the trial court erred in finding that the first registered proprietor was the respondent's father
The trial court misread the evidence; the respondent herself confirmed that 'M'Mbii' was the 1st appellant's name and that the 1st appellant was the first registered proprietor
The trial court relied on the first entry in the register as evidence of an irregular transfer from the respondent's father, but the respondent never alleged that M'Mbii M'Bururia was her father. She prosecuted her claim on the basis that the 1st appellant was the first registered proprietor holding in trust. The finding that transmission was required was therefore a misdirection on the evidence.
Whether the respondent was entitled to two acres
No, having failed to prove the foundations of the claim (bequeathal and trust)
The entitlement to two acres rested entirely on the alleged will of the respondent's late father and the alleged customary trust. Both failed for want of proof. The respondent's nine-sentence witness statement, adopted without calling any other witness, could not discharge the evidential burden of annulling or altering a first registration procured after land adjudication and consolidation.
Legal principles established
#- A party alleging a customary trust against a registered title bears the burden of proving the trust under Sections 107 and 109 of the Evidence Act
- A claim founded on trust must be specifically pleaded with particulars
- A first appellate court must re-evaluate the whole evidence and reach its own conclusions
Court orders
#- 1.Appeal succeeds
- 2.Judgment and orders of the trial court set aside wholly
- 3.Replaced with an order dismissing the respondent's suit
- 4.Each party to bear their respective costs in both courts
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Chuka
- Chuka CMC E & L Case No 10 of 2015
- Jurisdiction invoked
- First appellate jurisdiction under Article 172 of the Constitution and Section 65 of the Civil Procedure Act (court exercising powers of a first appellate court over a magistrate's court decision in a land matter); no specific provision is expressly cited in the judgment
Relief refused
#Respondent's claim for 2 acres out of the suit land and consequential transfer orders
She failed to plead and prove the alleged will, the alleged customary trust, and ownership of the suit land by her late father
Costs
Parties will bear their respective costs in both courts
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.
Consequently, this appeal succeeds. The judgment and orders of the trial court are set aside wholly and are replaced with an order dismissing the respondent's suit.
For the above reasons, this court finds that the respondent did not prove her claim on a balance of probabilities to warrant a finding in her favour.
Under Sections 107 and 109 of the Evidence Act, the party alleging existence of a customary trust against a registered title bears the burden of proving existence of the trust.
Taking into account the fact that no plea was made in this appeal in relation to the costs of the suit in the lower court, and further taking into account the fact that the errors leading to this appeal were committed by the trial court, parties will bear their respective costs in both courts.
If they wanted an order lifting the caution, they ought to have pleaded a counterclaim to that efiect.
Issues in the judgment
#The name of the ELC appeal itself is not stated anywhere in the judgment; the caseTitle is reconstructed from the trial case number appealed from
The judgment gives no full names for the parties; only their roles appear in the text
The judgment itself notes an apparent error in dates on the green card as submitted by counsel
The respondent's submissions addressed a non-existent counterclaim; the court noted the appellants only filed a defence
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "First Appeal from Chuka CMC E & L Case No 10 of 2015 (appeal number not stated in judgment)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5591/eng@2025-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.