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ELCPartially AllowedNot stated in the judgment (Makueni ELC suit)

Kasoli v Sengu (Environment and Land Case E042 of 2021) [2025] KEELC 8114 (KLR)

Environment and Land Court
24 November 2025
3,095 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 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 still belongs to the family if it is ancestral land held under customary trust.

What this practically means

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Executive summary

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The plaintiff, mother of the defendant, sued for declarations that the defendant holds land parcels Kiteta/Kiambwa/918 and 919 in trust for her, cancellation of his registration, and an order compelling transfer of both parcels to her. She claimed both parcels were ancestral land of her late husband, Munywoki Kasoli. The defendant denied the claim, asserting that he purchased Parcel 918 from clan elders in 1979 and that Parcel 919, admittedly ancestral family land, was registered in his name in 1985 as the eldest son. In a judgment delivered on 24th November 2025, Obaga J identified two issues: whether a customary trust was proved over Parcel 918, and whether the plaintiff was entitled to the prayers. Applying Sections 25(1)(b) and 28 of the Land Registration Act, 2012, and the Supreme Court's elements of customary trust in Isack M'inanga Kiebia v Isaaya Theuri M'lintari, the court held that the plaintiff failed to prove Parcel 918 was ancestral or reserved for family use; the defendant had exercised exclusive ownership, burying his children and farming there. However, the defendant conceded that Parcel 919 was ancestral land registered in his name for the family, so a customary trust over that parcel was established. The suit partially succeeded: declarations that the defendant holds Parcel 919 in trust for the plaintiff and is not its absolute owner, cancellation of his registration for that parcel, and an order compelling transfer within 30 days, failing which the Deputy Registrar to execute the transfer. Given the parties' familial relationship, each party was ordered to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the Plaintiff has demonstrated a valid claim to land Parcel No. Kiteta/Kiambwa/918 on grounds of a customary trust?
  2. 2.Whether the Plaintiff is entitled to the prayers sought?

Key legal issues

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01

Whether a customary trust was established over Kiteta/Kiambwa/918

Holding

No customary trust established; the Plaintiff failed to prove the parcel was ancestral land reserved for the family, and the Defendant was in exclusive ownership and possession

Reasoning

Applying the Supreme Court's elements in Isack M'inanga Kiebia v Isaaya Theuri M'lintari, the court found the plaintiff neither in possession nor demonstrating that the land was reserved for family uses such as burial or construction. The defendant had buried his children, planted mangoes and farmed the parcel, evidencing exclusive ownership, so the claim failed.

p. 6
02

Whether the Defendant holds Kiteta/Kiambwa/919 in trust for the Plaintiff

Holding

Yes; the defendant conceded the parcel was ancestral land of his late father registered in his name as eldest son, so a customary trust over it was established

Reasoning

Both parties agreed Parcel 919 was ancestral land originally owned by the late Munywoki Kasoli, and the defendant conceded he was registered only as the eldest son. The plaintiff was in possession with the defendant's siblings. On the Kiebia elements, a customary trust was proved, entitling the plaintiff to the declarations and transfer orders sought.

p. 3
03

Costs of the suit

Holding

Each party to bear own costs given the familial relationship, departing from the general rule that costs follow the event

Reasoning

Although costs ordinarily follow the event under Section 27 of the Civil Procedure Act as explained in Supermarine Handling Services Ltd v Kenya Revenue Authority, the court exercised its discretion to order each party to bear its own costs because the parties are mother and son with an ongoing familial relationship.

p. 6

Legal principles established

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  • A customary trust is an overriding interest that binds a registered proprietor under Sections 25(1)(b) and 28 of the Land Registration Act, 2012
  • The burden of proving a customary trust falls on the party alleging it

Court orders

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  1. 1.A declaration that the Defendant holds Title No. Kiteta/Kiambwa/919 in trust for the Plaintiff
  2. 2.A declaration that the Plaintiff is the sole proprietor of land Parcel Number Kiteta/Kiambwa/919
  3. 3.An order directing the Land Registrar, Makueni to cancel the name of the Defendant in the register of land Parcel Number Kiteta/Kiambwa/919
  4. 4.An order compelling the Defendant to transfer land Parcel Number Kiteta/Kiambwa/919 to the Plaintiff within thirty (30) days of judgment, and in default the Deputy Registrar to execute the requisite transfer documents
  5. 5.Each party shall bear its own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcels Kiteta/Kiambwa/918 and 919

Relief refused

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Declaration and orders in respect of land Parcel No. Kiteta/Kiambwa/918

The Plaintiff did not adduce compelling evidence that Parcel 918 was ancestral family land reserved for the family; she failed to prove a customary trust over it

p. 6

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 is hereby issued that the Defendant holds Title No. Kiteta/Kiambwa/919 in trust for the Plaintifi
p. 7Final orders - declaration of trust
A declaration is hereby issued that the Plaintifi is the sole proprietor of land Parcel Number Kiteta/Kiambwa/919.
p. 7Final orders - proprietorship
An order is hereby issued compelling the Defendant to transfer land Parcel Number Kiteta/Kiambwa/919 to the Plaintifi within thirty (30) days of this judgment and in default the Deputy Registrar of this Honourable Court to execute the requisite transfer documents.
p. 7Final orders - transfer in default
it is undoubtedly clear that land Parcel No. Kiteta/Kiambwa/918 is not ancestral land and that the Plaintifi has not established a customary trust over the same.
p. 6Failure to prove customary trust over Parcel 918
Each party shall bear its own costs.
p. 7Costs

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, "Kasoli v Sengu (Environment and Land Case E042 of 2021) [2025] KEELC 8114 (KLR)", Case Analysis (2025). Not stated in the judgment (Makueni ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8114/eng@2025-11-24

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