Mbanda & 3 others v Mbanda & another

alleged that, without their knowledge or consent, the 1st and 2nd appellants fraudulently subdivided the land into parcels 2511, 2512, 2513, and 2514, and unlawfully sold parcels 2512 and 2513 to the 3rd and 4th appellants, who threatened to evict them. They contended that the subdivision and transfers were intended to defeat their benecial interests, and were void for lack of the requisite Land Control Board consent. They accordingly sought declaratory, restorative, and injunctive reliefs as follows; i. A declaration that the 1st and 2nd defendants hold the former LR No. South Wanga/ Lureko/654, now subdivided into parcels South Wanga/Lureko/2511, 2512, 2513 and 2514, in trust for the plaintis and their respective families. ii. An order cancelling all the subdivisions and resultant titles relating to parcels 2511, 2512, 2513 and 2514, and restoring the original title LR No. South Wanga/Lureko/654. iii. A declaration that the sales, transfers and alienations of parcels 2512 and 2513 to the 3rd and 4th defendants were unlawful, null and void ab initio. iv. An order of inhibition/prohibition restraining the Land Registrar, Mumias District, from registering any further transfers or dealings aecting the disputed parcels. A permanent injunction restraining the defendants, their agents or servants from trespassing upon, occupying, cultivating, selling, transferring, alienating or otherwise interfering with the plaintis' use and possession of the suit property. 3. The appellants denied the respondents' claims vide a joint statement of defence dated 2nd April 2019, maintaining that the subdivision of LR No. South Wanga/Lureko/654 was lawful and not fraudulent. The 3rd appellant asserted that he was a bona de purchaser for value, having lawfully acquired parcel 2512 and portions of parcel 2513, though transfer of the latter was impeded by a caution lodged by the respondents. The 1st and 2nd appellants denied any obligation to transfer the land to the respondents, contending that adequate provision had been made for their children. They further argued that the suit was incompetent due to misjoinder and lack of authority, disclosed no reasonable cause of action, that customary rights could not override registered title, and that the allegations of fraud had not been proved. They therefore urged the court to dismiss the suit. 4. In a judgment delivered on the 17th December 2019, the learned Judge of the ELC while rearming the principle under sections 24 and 26 of the Land Registration Act held that although registered ownership under the Land Registration Act is generally protected, it may be overridden by a customary trust. It held that the respondents had not established any benecial interest in parcels Nos. 2511, 2512, and 2514, and upheld the 3rd appellant's ownership of parcel No. 2512 as that of an innocent purchaser for value. However, relying on the 1st appellant's admission that parcel No. 2513 was ancestral land occupied by his family, the court found that he held the parcel in customary trust for the respondents and their families. Consequently, the court partially allowed the suit by declaring the existence of the trust, issuing an inhibition against any further dealings with parcel No. 2513, and granting a permanent injunction to safeguard the respondents' occupation and use of the land, while declining to invalidate the titles to the remaining parcels of land. 5. Aggrieved by the decision of the High Court, the appellants impugned the same on the following grounds; a. That the learned judge erred in law and fact in allowing the respondents claim as per the claim dated 16th May 2017; b. That the learned judge erred in law and in fact in not properly evaluating principles governing Customary Trust of land as per the Land and Case laws. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1878/eng@2026-09-25 2

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c. That the learned trial judge erred in law and fact in allowing the respondent’s claim against the weight of the material placed before her. d. That the learned judge erred in law and fact in not properly evaluating principles of representative suit. e. That the learned judge erred in law and fact for not considering the 4th appellant’s interest in the suit land being right of an innocent purchaser. f. That the learned judge erred in law and fact in not considering the rights of a registered owner under the Land Laws. g. That the learned judge erred in law and fact for not considering the duties of a Trustee upon declaration by the Court. h. That the learned judge erred in failing to analyze the issues before her critically, wholly and properly and her decision was awed, erroneous and infeasible and has resulted in a serious miscarriage of justice. 6. In support of this appeal, the appellants submitted that the subdivision of LR No. South Wanga/ Lureko/654 was lawful and undertaken by agreement among the registered owners to accommodate their respective shares and the interest of a purchaser. They argued that the 3rd appellant lawfully acquired parcel No. 2512 and a portion of parcel No. 2513 as a bona de purchaser for value, while the respondents failed to adduce evidence establishing that parcel No. 2513 was held in customary trust. 7. They contended that the respondents, being children of the registered proprietors, had no enforceable inheritance rights during their fathers' lifetime and could not dictate how the land was to be dealt with. The appellants further maintained that the trial court failed to properly apply the principles governing customary trusts, representative suits, the rights of registered proprietors and innocent purchasers, and consequently erred in declaring a trust over parcel No. 2513. They urged the Court to set aside the judgment and dismiss the respondents' suit. 8. Conversely, the respondents submitted that the trial court properly evaluated the evidence and correctly found that Parcel No. South Wanga/Lureko/2513 was ancestral land held by the 1st appellant in customary trust for the respondents and their families. They argued that the appellants had failed to demonstrate any error in the trial court's ndings and that the appeal merely challenged wellfounded conclusions on ancestral land, trust, fraud, and the doctrine of a bona de purchaser. The respondents maintained that the judgment was sound, that the appellants' grounds of appeal were largely generalized and unmeritorious, and urged the Court to dismiss the appeal and uphold the decision of the ELC. 9. This is a rst appeal. The Court’s mandate as the rst appellate court is to re-evaluate the evidence, assess it and reach a conclusion. We draw from Rule 31(1) of the Court of Appeal Rules 2022 which provides that: 1. On an appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the Court shall have power: a. to re-appraise the evidence and to draw Inferences of fact. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1878/eng@2026-09-25 3

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It is thus our duty to analyze and re-assess the evidence on record and reach our own conclusions. In Selle vs. Associated Motor Boat Co., [1968] EA 123, our mandate was expressed thus: “ An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briey put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s ndings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif vs. Ali Mohamed Sholan (1955), 22 E. A. C. A.” 10. Briey, in the evidence presented before the trial court, the 1st respondent testied as the only witness on behalf of the respondents to the eect that LR No. South Wanga/Lureko/654 was ancestral land inherited by the family and later subdivided into parcels Nos. 2511–2514 without the respondents' consent. That he occupied and cultivated parcel No. 2513, where he had begun constructing a permanent home, and contended that the land was held in trust for the family. 11. On cross-examination, the 1st respondent acknowledged that the 1st appellant was his father, that the family had been allocated portions of land, and that the 3rd appellant was the registered proprietor of parcel No. 2512. He further stated that he had placed a caution on parcel No. 2513 and alleged that the transfers were fraudulent, although he produced no documentary evidence to support the allegation. 12. As for the appellants, the 1st appellant testied that parcel No. 654 belonged jointly to him and his brothers and was lawfully subdivided among them. He stated that parcel No. 2513 belonged to him, that he had settled his six children on portions of the land; and that the 1st respondent had occupied his allocated portion since 1979 without complaint. He further testied that he voluntarily withdrew an earlier boundary dispute, lawfully sold part of parcel No. 2513 to the 3rd appellant, and denied suggestions that he was of unsound mind. 13. The 3rd appellant testied that he lawfully purchased parcel No. 2512 from Susan Bukoshe Ombunya and later purchased a portion of parcel No. 2513 from the 1st appellant. He produced the title deed and sale agreements, stating that although he had taken possession, he was unable to obtain title to the portion of parcel No. 2513 because of the caution lodged by the respondents. 14. It is based on this evidence that the trial court arrived at its now impugned judgment. We do note that no adverse orders were issued against the respondents in regard to parcel No. 2512 which the 2nd appellant was claiming. Consequently, this appeal is in regard to the orders on parcel No. 2513 that the 1st respondent had claimed. 15. Having carefully considered the record, the issues for determination before this court are whether the learned judge erred in applying the principles of representative suits and whether the learned judge erred in evaluating principles governing customary trust of land. 16. As regards the rst issue, we take note that other than lamenting about the learned judge’s error in interpreting the principles guiding the issues of representative suits, the appellants have not substantiated the same. A perusal of the plaint dated 12th May 2017 also does not reveal any averment by the respondents that they were bringing the suit on behalf of any group of persons. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1878/eng@2026-09-25 4

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17. In any case, we are alive to the provisions of Order I Rule 9 of the Civil Procedure Rules which provides as follows; “ No suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.” 18. Consequently, this limb of the appeal is without merit. 19. Turning to the crux of the instant appeal, the appellants argued that no customary trust was established by the 1st respondent over parcel No. 2513 to warrant the ELC to issue the orders it did. That the 1st respondent had no enforceable inheritance rights over the parcel during their fathers' lifetime and could not dictate how the land was to be dealt with. It was further argued that customary rights could not override registered title. 20. At the hearing, the 1st respondent testied that the original parcel No. 654 was ancestral land which was given to the 1st and 2nd appellants by their father and which they subsequently divided with the 1st appellant getting parcel No. 2513. The 1st appellant admitted as much in his testimony stating that he had subsequently divided parcel No. 2513 amongst his 6 sons who included the 1st respondent. That he had undertaken all transaction over the said parcel of land legally. 21. Section 27 (a) of the Registered Land Act (now repealed) provided that: “ The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto” 22. While Section 28 of the said Act provided that: “ The rights of a proprietor, whether acquired on rst registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together will all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subjecta. to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and b. unless the contrary is expressed in the register, to such liabilities, rights and interests as aect the same and are declared by Section 30 not to require noting on the register; Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee.” 23. Section 30 (g) in turn provided that: “ Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and aect the same, without their being noted on the register- (g)the rights of a person in possession or actual https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1878/eng@2026-09-25 5

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occupation of land to which he is entitled in right only of such possession or occupation, save where inquiry is made of such person and the rights are not disclosed.” 24. Consequently, Bennett J, in Obiero v. Opiyo (1972) E.A 227, decreed that, rights to land under customary law become extinguished upon registration of the land in question. This was rearmed by Kneller J. in Esiroyo v. Esiroyo (1973) E.A 388 and restated by this Court in the unreported case of Muriuki Marigi v. Richard Marigi & 2 Others Nyeri C.A No. 189/96 (UR). 25. This was the initial position in law however, the position shifted courtesy of the Supreme Court decision in Kiebia v M’lintari & another (Petition 10 of 2015) [2018] KESC 22 (KLR) (5 October 2018) (Judgment) which held that “ ......The decisions in Obiero v. Opiyo, and Esiroyo v Esiroyo; were based on faulty conceptual and contextual premises. Faulty conceptually because, they did not take into account the complex nature of customary rights to land, and faulty contextually because, in interpreting Sections 27, 28 and 30 of the Registered Land Act, the courts paid little or no attention to the relevant provisions of the retired Constitution regarding trust land. It is the registration of land in the trust land areas that had triggered the enduring tension between registered proprietors and claimants under customary law. It is no wonder that customary rights to land would exhibit resilience in subsequent decisions.” 26. The Supreme Court of Kenya further held, inter alia, that a customary trust, once established, is not extinguished by rst registration. Rather, it remains an overriding interest binding upon the registered proprietor under the proviso to Section 28 of the repealed Registered Land Act (now codied under Section 28(b) of the Land Registration Act, 2012). 27. In addition, the Supreme Court further pointed out that customary trusts may arise in various forms depending on the customs and circumstances of a particular family or community, such as land reserved for burials, traditional rites, or future family use; that the categories of customary trust are not exhaustive, and it is for the court to determine, based on the evidence presented, whether a customary trust exists and binds the registered proprietor. The Court further outlined the essential elements that a claimant must establish to prove the existence of a customary trust, as follows; 28. i. The land in question was before registration, family, clan or group land ii. The claimant belongs to such family, clan, or group iii. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous. iv. The claimant could have been entitled to be registered as an owner or other beneciary of the land but for some intervening circumstances. v. The claim is directed against the registered proprietor who is a member of the family, clan or group. In this appeal, the evidence on record demonstrates that the 1st respondent's claim satised all ve criteria established by the Supreme Court. Specically, Parcel No. 2513 originated from the subdivision of Parcel No. 654, which from the evidence on record, was the primary title issued during the initial land adjudication. Furthermore, Parcel No. 2513 was registered in the name of the 1st appellant, the 1st respondent's father, while the 1st respondent and his ve brothers were in actual occupation of their respective portions of that land. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1878/eng@2026-09-25 6

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29. Indeed, in Kiebia v M’lintari & another (supra), the Supreme Court observed that although the Land Registration Act, 2012 largely re-enacted the provisions of the repealed Registered Land Act, it expressly included trusts, including customary trusts, among the overriding interests under Section 28. The Court further noted that the new legislation introduced spousal rights over matrimonial property as an overriding interest while omitting the previous recognition of the rights of persons in actual possession or occupation of land. The Supreme Court went on to note that; “ ..... by retaining the proviso to Section 28 of the Registered Land Act (now repealed), in Section 25 of the Land Registration Act, it can be logically assumed that certain trusts can still be noted in the register. Once so noted, such trusts, not being overriding interests, would bind the registered proprietor in terms noted on the register. The rights of a person in possession or actual occupation of land, as previously envisaged under Section 30 (g) of the Registered Land Act, have now been subsumed in the “customary trusts” under Section 25 (b) of the Land Registration Act. Thus, under the latter Section, a person can prove the existence of a specic category of a customary trust, one of which can arise, although not exclusively, from the fact of rightful possession or actual occupation of the land.” 30. Taking all the above into consideration, it is our view that the 1st respondent established the existence of a customary trust held by the 1st appellant on his behalf and that of his other siblings and family over Parcel No. 2513. It follows then that, the 1st appellant ought to have sought consent of the 1st respondent before engaging in dealings over the said parcel more so considering the long occupation of the 1st respondent on Parcel No. 2513. 31. The upshot of the above is that we detect no error in the nding of the learned Judge, and proceed to uphold the decision. Concurrently, we nd that this appeal lacks merit and proceed to dismiss it with no orders as to costs. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ....................................... JUDGE OF APPEAL H. A. OMONDI ....................................... JUDGE OF APPEAL L. KIMARU ....................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1878/eng@2026-09-25 7

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