Anyonje v Kubati (Environment and Land Appeal E019 of 2025) [2026] KEELC 3637 (KLR)
The bottom line
#The Environment and Land Court in Kakamega dismissed a nephew's appeal, confirming that fraud claims tied to succession must be raised in a probate court, not a land court.
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 acquired title to Land Parcel No. Kisa/Wambulishe/1578 fraudulently through two succession grants in respect of the same estate
- 2.Whether the appellant proved a customary trust over the suit land
- 3.Whether the trial court's judgment should stand
Key legal issues
#Whether fraud in acquisition of title through succession was proved
Not proved; such complaints fall to the Probate and Administration court, and absent a probate court decision upsetting the respondent's acquisition, the fraud allegations fail.
The appellant alleged that the respondent conducted two succession causes over the same estate and registered himself secretly. The court held that questions of whether succession was conducted secretly and which grant ought to prevail are for the Probate and Administration court; an ELC court cannot interrogate them. The appellant produced no decision from the probate court upsetting the acquisition, so the fraud allegations failed.
Whether the appellant established a customary trust over the suit land
No. The appellant failed to demonstrate the elements of customary trust, particularly that he could have been entitled to registration but for intervening circumstances.
Applying the Supreme Court's elements of customary trust in M'nanga v M'lintari, the court found the appellant's lineage (through Alexander, brother of Henry Kubati) meant Henry Kubati Mahare was not his grandfather; he did not challenge the 1964 registration in Henry's name; occupation was not proved beyond 2021; and he could not show entitlement to registration but for intervening circumstances. The trial court's dismissal of the trust claim was upheld.
Legal principles established
#- A first appellate court must re-evaluate, reassess and re-analyse the evidence from the trial court and reach its own conclusions, while making allowance for not having seen or heard the witnesses.
- Allegations of fraud tied to questions of succession can only be raised in a succession (Probate and Administration) court, not in an Environment and Land Court.
- Without a probate court decision upsetting the acquisition of the property through succession, allegations of fraud tied to succession remain unproved.
- A claimant asserting customary trust bears the legal burden of proving its elements, including that he could have been entitled to be registered but for intervening circumstances.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The appellant shall bear the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court, Butere
- Butere ELC Case No. E035 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over the Environment and Land Court decision of the Principal Magistrate's Court (Civil Procedure Act; appeal against trial court judgment)
Relief refused
#Setting aside the trial court's judgment and judgment as sought in the counterclaim
The appellant failed to prove fraud, which could only be raised in a Probate and Administration court, and failed to prove a customary trust; the trial court's findings were sound
Costs
The appellant shall bear the costs of this appeal (respondent having borne his own costs in the lower court)
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 upshot is that I find no merit in the appeal before me which I hereby dismiss.
I take cognizance of the fact that the parties herein share a common ancestry, but in view of the fact that the respondent has borne his costs in the lower court, I order that the appellant shall bear the costs of this appeal.
If the appellant thinks that succession was done secretly, he can only challenge the same in a Probate and Administration court not in an Environment and Land court.
Without a decision from the Probate and Administration court upsetting the acquisition of the suit property by the respondent through succession, allegations of fraud have not been proved.
The legal burden of proving existence of trust rests with the one who is asserting a right under customary trust.
Issues in the judgment
#The judgment is dated 3rd June 2026, which appears inconsistent with the record of submissions dated September and October 2025 only insofar as a future-dated delivery; recorded as printed.
The judgment refers to 'the issues of fraud as raised by the respondent' where the fraud allegations were in fact raised by the appellant, an apparent error in the text.
The appeal number of the present appeal is not stated in the judgment; only the trial case number is given.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anyonje v Kubati (Environment and Land Appeal E019 of 2025) [2026] KEELC 3637 (KLR)", Case Analysis (2026). Environment and Land Appeal (Kakamega) arising from Butere ELC Case No. E035 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3637/eng@2026-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.