Ondiek & another v Otieno & another (Environment and Land Appeal E078 of 2024) [2026] KEELC 1009 (KLR)
The bottom line
#The Kisumu Land Court confirmed that family members living on ancestral land hold a customary trust that overrides a registered title.
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 trial court erred in failing to analyse and evaluate the evidence and submissions, thereby reaching a wrong decision
- 2.Whether the trial court erred in entering judgment on a counterclaim that was not accompanied by a Verifying Affidavit
- 3.Whether the appellants proved a prima facie case on a balance of probabilities given their allegedly indefeasible first-registration title
- 4.Whether the trial court erred in relying on a Chief's letter that was not part of the court record
- 5.Whether the respondents had a valid customary law claim to a portion of the suit land
- 6.Whether the trial court's orders directing survey and subdivision were ambiguous and absurd
- 7.Whether the trial court treated the appellants' submissions in a casual and cavalier manner occasioning miscarriage of justice
Key legal issues
#Whether the trial court properly evaluated the evidence and correctly found a customary trust over the suit land
The trial court did not err; the elements of customary trust were manifest and proved on a balance of probabilities, and the appellants' title was subject to that trust
The appellate court re-evaluated the evidence: the respondents' occupation since 1982 was undisputed, DW3 testified the land was to be shared between Ondiek and Gwara, and a 1994 boundary dispute confirmed long occupation. The relationship between the families, the ancestral character of the land, and the designation of one member to register the land were all established, satisfying the Supreme Court's elements of customary trust in Isaak M'Inanga Kieba.
Whether judgment could stand on a counterclaim not accompanied by a verifying affidavit
Yes; the defect was curable and not raised as a preliminary issue before hearing, and courts should sustain causes under Article 159
The defence and counterclaim indeed lacked a verifying affidavit. However, the appellants did not raise it as a preliminary issue before hearing, the respondents were unrepresented, and authorities (Jefitha Muchai Mwai; Michael Muuthoka Makau) show such omissions are curable. The trial court therefore did not err in proceeding to determine the suit on the merits.
Whether the trial court erred in relying on a Chief's letter not produced as an exhibit
Reliance on the letter was erroneous, but the conclusion drawn from it was independently supported by the viva voce evidence, particularly DW3's testimony
The letter by the Senior Chief dated 5th February 2018 was not an exhibit and its maker was not called, so the trial court's reliance on it was erroneous. However, the finding that the land was ancestral and that the Gwara family was entitled to a portion rested on the testimony of DW3, a retired Assistant Chief, so the conclusion stood despite the evidential error.
Whether the trial court's survey and subdivision orders were ambiguous and absurd
No; the orders tracked the counterclaim prayer and were clear and implementable
The counterclaim expressly sought an order that the Land Registrar and Surveyor visit the parcel, survey it, and register the portion occupied by the respondents in their names. The trial court's orders mirrored that prayer. The appellants did not demonstrate any ambiguity, and the court found the orders clear and implementable.
Whether the appellants' claim was time-barred
Yes; the claim was barred under Section 7 of the Limitation Act given the respondents' long occupation
The respondents pleaded in paragraph 16 of the defence and counterclaim that the suit was statute-barred. Given the evidence that the respondents had been in occupation since 1982 and that the land was registered long before, the appellants' claim of trespass from 2020 could not stand, and the claim was time-barred under Section 7 of the Limitation Act.
Legal principles established
#- On a first appeal, the appellate court must re-evaluate the entire evidence and reach its own conclusions while allowing for the trial court's advantage of seeing and hearing the witnesses
- Customary trusts are overriding interests under Section 28(b) of the Land Registration Act to which all registered land is subject
- The burden of proving the existence of a customary trust lies on the party relying on it
- A counterclaim lacking a verifying affidavit is a curable technical defect; in the spirit of Article 159 of the Constitution courts should sustain causes rather than strike them out for curable technicalities
Court orders
#- 1.Appeal dismissed
- 2.Each party to bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Kisumu (CMC ELC)
- Kisumu CMC ELC No. E12 of 2020
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court (appeal against judgment in Kisumu CMC ELC No. E12 of 2020); specific provision not cited in the judgment.
Relief refused
#Allowing the appeal and setting aside the judgment of the trial court with costs
The trial court correctly evaluated the evidence and did not err; the customary trust was proved and the suit was time-barred
Costs
Each party to bear its own costs of the appeal
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.
The appeal is hereby dismissed and as the parties are related and will probably be pursuing the subdivision and transfer of the suit land, I direct each party to bear its own costs of the appeal.
Customary trusts are overriding interests under the provisions of Section 28 (b) of the Land Registration Act to which all registered land is subject.
Looking at the evidence in the present case, these elements were manifest and proved on a balance of probabilities.
In any event courts of law in the spirit of Article 159 of the Constitution should try as much as possible to sustain causes in court rather than striking out suits for reasons that are merely technical and curable by a simple step that does not prejudice the other party.
It is clear that the letter was not one of the exhibits produced in the case, hence not part of the court record. It was erroneous for the trial court to rely on the same.
Considering the time the respondents entered onto the suit land, the appellants' claim was time-barred under the provisions of Section 7 of the Limitation Act.
Orders accordingly.
Issues in the judgment
#Inconsistent dates for the first registration appear in the judgment: the Memorandum of Appeal states registration was in 1978 while counsel's submissions state 1976
The 1st appellant's cross-examination refers to the 1st respondent's husband, yet she elsewhere describes the respondents as strangers not related to her - a tension the judgment notes and resolves on the evidence
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ondiek & another v Otieno & another (Environment and Land Appeal E078 of 2024) [2026] KEELC 1009 (KLR)", Case Analysis (2026). Kisumu ELC Appeal (Record of Appeal dated 2nd May, 2025; Memorandum of Appeal dated 14th September, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1009/eng@2026-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.