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ELCPartially AllowedNot stated in the judgment (Makueni ELC suit)

Musyoki v Sombi (Environment and Land Case E012 of 2023) [2025] KEELC 7124 (KLR)

Environment and Land Court
21 October 2025
5,023 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Makueni ruled that a title deed does not defeat family land claims, awarding the plaintiff half the property under customary trust.

What this practically means

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Executive summary

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The plaintiff sued the defendant, her brother-in-law, seeking declarations that Makueni/Mubau/46 (approximately 28 acres) is subject to a customary trust in her favour, that the defendant holds half as trustee, and consequential orders for vacant possession, subdivision and issuance of title. The defendant denied the claim and counterclaimed for a declaration of sole ownership, eviction and general damages. The court framed three issues: res judicata, customary trust, and entitlement to the prayers sought. On res judicata, it held the 1983 Machakos suit, in which the defendant obtained an eviction order against the plaintiff, never pleaded or determined customary trust, so Section 7 of the Civil Procedure Act did not bar the present suit. On the trust, applying the Supreme Court's elements in Isack M'inanga Kiebia, the court found the plaintiff occupied the land with her husband from about 1966, before the defendant's 1975 registration; her burial of three children and a grandchild on the land was uncontroverted; and the Atangwa Clan resolved the land be shared equally as family land. It declared the property family land, with the defendant registered as trustee for both families. The plaintiff's suit partially succeeded and the counterclaim wholly collapsed. Notably, the court omitted the plaintiff's demolition prayer from the final orders. Given the parties' familial relationship, each party was ordered to bear its own costs. Judgment was delivered by Hon. E. O. Obaga, Judge, on 21st October 2025.

Questions the Court framed

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

  1. 1.Whether this suit is res judicata the Machakos RMCC No. 112 of 1983
  2. 2.Whether the Plaintiff has demonstrated a valid claim to the suit property on grounds of a customary trust
  3. 3.Whether the Plaintiff is entitled to the prayers sought

Key legal issues

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01

Res judicata vis-à-vis Machakos RMCC No. 112 of 1983

Holding

The suit is not res judicata because the customary trust issue was never pleaded nor determined in the 1983 suit

Reasoning

The court examined the 1983 judgment and found that only eviction and costs were granted, while the declaration of sole ownership and general damages were disallowed. Neither party pleaded customary trust or counterclaimed on it, so the issue was not directly and substantially in issue in the former suit as required by Section 7 of the Civil Procedure Act.

p. 6
02

Existence of a customary trust over Makueni/Mubau/46

Holding

The suit property is family land held by the Defendant in trust for both families, satisfying the Kiebia elements

Reasoning

The plaintiff occupied the land with her husband from about 1966, before the 1975 registration; three of her children and a grandchild are buried there uncontroverted; and the Atangwa Clan resolved that the land be shared equally as family land. The claimant belongs to the family, the land was family land before registration, and the claim is against a registered proprietor who is a family member.

p. 9
03

Costs

Holding

Each party to bear own costs given the familial relationship

Reasoning

Despite the general rule that costs follow the event, the court departed from it because the parties are related. The counterclaim also failed entirely.

p. 9

Legal principles established

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  • A customary trust is an overriding interest under Section 28 of the Land Registration Act that binds a registered proprietor notwithstanding Section 25(1)(b)
  • The burden of proving a customary trust falls on the party alleging it
  • Res judicata does not apply where the issue now raised was neither pleaded nor adjudicated in the former suit

Court orders

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  1. 1.A declaration that Title No. Makueni/Mubau/46 is the subject of a customary trust in favour of the Plaintiff
  2. 2.A declaration that the Defendant, the registered owner of Title No. Makueni/Mubau/46, holds half portion of the said property as trustee for the Plaintiff
  3. 3.An order directing the Defendant to grant vacant possession of half portion of Title No. Makueni/Mubau/46 to the Plaintiff within fourteen (14) days from the date of judgment
  4. 4.An order directing the Defendant to, within three (3) months of the date of judgment, subdivide Title No. Makueni/Mubau/46 into two equal portions and process a title for the Plaintiff's share
  5. 5.If the Plaintiff fails to comply, the Land Registrar, Makueni to cancel the title and cause the land to be subdivided equally at the Defendant's cost and two title deeds issued in the names of the Plaintiff and the Defendant
  6. 6.Each party shall bear its own costs
  7. 7.The Defendant's counterclaim is dismissed

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (claim of customary trust over land)

Relief refused

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Plaintiff's prayer for an order allowing her to demolish structures with enforcement by the OCS, Makueni Police Station

Not included in the final orders entered for the Plaintiff

Defendant's counterclaim in its entirety (declaration of sole ownership, eviction and demolition, general damages)

The counterclaim wholly collapsed as the court found the suit property is family land held in trust

p. 9

Costs

Each party shall bear its own costs.

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.

A declaration that Title No. Makueni/Mubau/46 is the subject of a customary trust in favour of the Plaintifi.
p. 1final orders - declaration of customary trust
If the Plaintifi fails to comply with prayer (4) above, the court does direct the Land Registrar, Makueni to cancel the title in respect of Title No. Makueni/Mubau/46 and cause the land to be subdivided equally at the Defendant’s cost and two title deeds issued in the names of the Plaintifi and the Defendant.
p. 10final orders - subdivision and cancellation fallback
Each party shall bear its own costs.
p. 10final orders - costs
it is the finding of this court that the suit property is family land and that the title thereof is registered in the name of the Defendant in trust for both families.
p. 9customary trust finding
it is the finding of this court that the suit herein is not barred by the doctrine of res judicata.
p. 7res judicata

Issues in the judgment

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minor

Judgment consistently misspells 'Plaintiff' as 'Plaintifi' and 'affects' as 'afiects' throughout

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, "Musyoki v Sombi (Environment and Land Case E012 of 2023) [2025] KEELC 7124 (KLR)", Case Analysis (2025). Not stated in the judgment (Makueni ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7124/eng@2025-10-21

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