Alfred Malakwen Chumba & another v Benjamin Kipkoech Lelei & another
The bottom line
#A Kenyan court cancelled a brother's land titles, ruling that being the registered owner does not defeat a family customary trust.
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 1st and 2nd Plaintiffs have proved their case to the required standard as to allow a finding of customary trust over the suit parcels of land herein
- 2.Whether the 1st Defendant has established his counter claim on absolute proprietorship of all the suit parcels of land registered in his name on a balance of probabilities
- 3.Subject to (a) and (b) above, the orders to issue for the ends of justice in this case
Key legal issues
#Whether a customary trust subsists over the Kapsimotwo parcels registered in the 1st Defendant's name
Yes. The parcels were bought by the parties' father and registered in the 1st Defendant's name because the 1st Plaintiff, the only son of the 3rd house, was a minor; the 1st Plaintiff has occupied and utilised the parcels since 1975 while the 1st Defendant never did.
Applying the Kiebia essentials, the court found historical family/ancestral ownership, the claimant's membership of the family, a direct and substantial claim, and that the 1st Plaintiff would have been registered but for his minority. The site visit report and corroborating witnesses confirmed the 1st Plaintiff's long occupation. Equity, enshrined in Article 10(2)(b), looks at intent rather than form, so registration in the 1st Defendant's name did not defeat the beneficial trust of the 3rd house.
Whether registration in itself extinguishes beneficial or equitable interests in land
No. Section 28 of the Land Registration Act recognises trusts, including customary trusts, as overriding interests binding a registered proprietor even where not noted on the register.
Relying on Njiru v Njiru, the court held that registration determines legal title but trusts concern equitable beneficial obligations that may subsist notwithstanding registration. The circumstances surrounding registration must be examined to determine whether a trust was intended, following Peter Gitonga v Francis Maingi M'Ikiara.
Whether the 1st Defendant's counter-claim for absolute proprietorship was established
No. It was displaced by the proved customary trust; the counter-claim was dismissed in its entirety.
Although the 1st Defendant is the registered owner of the Kapsimotwo, Kamobo and Miteitei parcels and claimed purchase with his own resources, the evidence, including the site visit report and the testimony of PW2, PW4 and PW5, established that the parcels were family acquisitions settled on the respective houses, with the 1st Defendant holding the Kapsimotwo parcels for the minor 1st Plaintiff. His claim laid only in 2022 after decades of the 1st Plaintiff's occupation.
Whether the Kamobo parcels and MITEITEI BLOCK 2 (KAPLAMAIYWO) 27 also form part of the customary trust
The court found they form part of the customary trust held by the 1st Defendant on behalf of the 2nd house, but made no orders in respect of them.
Evidence showed the father gave KES 4,800 through sister Dinah to the 1st Defendant to purchase properties on behalf of the 2nd house, and the brothers resided on the Kamobo parcels where their father was buried. The court expressed the view that these parcels also form part of the trust, though the final orders did not extend to them.
Legal principles established
#- Registration of land does not extinguish customary trusts, which are overriding interests under Section 28 of the Land Registration Act even if not noted on the register
- The five essentials for proving a customary trust as set out in Isack M'Inanga Kiebia v Isaaya Theuri M'lintari, which are not exhaustive
- The intention behind a registration must be gathered from the viva voce evidence and the subsequent conduct of the parties
Court orders
#- 1.Declaration that the 1st defendant holds NANDI HILLS/KAPSIMOTWO/156, 161, BLOCK 5 (KAPSIMOTWO) 199 & BLOCK 3/176 as trustee for the 1st plaintiff and beneficiaries of the estate of the deceased father of the parties
- 2.Declaration that the said Kapsimotwo parcels are subject to a trust, the same being ancestral land
- 3.Declaration that the registration of BENJAMIN KIPKOECH LELEI over the said parcels is purely as trustee for the 1st plaintiff and other beneficiaries
- 4.The trust over the suit parcels be distributed to the legal beneficiaries entitled thereto including the 1st plaintiff
- 5.Title deeds of the said parcels registered in the name of BENJAMIN KIPKOECH LELEI be cancelled and in their place titles do issue in respect of the 1st plaintiff
- 6.The Counter-claim in entirety as captured in the 1st defendant's replying affidavit filed on 25th August 2022 be dismissed
- 7.Each party to bear their respective costs of the suit and the counter claim
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) framework; not expressly cited in the judgment)
- Consolidated with
- Kapsabet ELCC No. E013 of 2022 (OS)
Relief refused
#1st Defendant's counter-claim: declaration of absolute proprietorship, mandatory injunction for vacant possession, permanent injunction, general damages for wrongful occupation, police assistance
Plaintiffs proved a customary trust over the Kapsimotwo parcels, displacing the counter-claim
No orders were made in respect of the KAMOBO parcels and MITEITEI BLOCK 2 (KAPLAMAIYWO) 27 despite the court finding they form part of the customary trust
Final orders confined to the Kapsimotwo parcels as pleaded in the further amended originating summons
Costs
Given this is a family matter involving siblings, parties to bear their respective costs of the suit and the counter claim.
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.
Section 28 of the Land Registration Act recognizes that registration is not necessarily conclusive as against overriding interests recognized by law.
Equity looks at the intent rather than the form.
In establishing the intention behind the registration, the best way is to consider the viva voce evidence of the parties and the conduct of parties subsequent to the said registration.
Given this is a family matter involving siblings, parties to bear their respective costs of the suit and the counter claim.
The Counter Claim in entirety as captured in the 1 st defendant's replying affidavit filed on 25 th August 2022, be dismissed.
The title deeds of the parcels of land known as NANDI HILLS/KAPSIMOTWO/156, NANDI HILLS/KAPSIMOTWO/161, NANI HILLS KAPSIMOTWO BLOCK 5 (KAPSIMOTWO) 199 & NANDI HILLS KAPSIMOTWO BLOCK 3/176 registered in the name of BENJAMIN KIPKOECH LELEI, the Respondent herein be accordingly cancelled and in its place, titles do issue in respect of the 1 st plaintiff.
Issues in the judgment
#Final orders omit the Kamobo and Miteitei parcels despite express finding they form part of the trust
Statute misnamed: 'Registered Land Act 2016 (2012)' conflates the repealed RLA with the Land Registration Act
Quotation from Njiru case is garbled and incomplete
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alfred Malakwen Chumba & another v Benjamin Kipkoech Lelei & another", Case Analysis (2026). ELC CASE NO. E005 OF 2022 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6166/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.