Alfred Malakwen Chumba & another v Benjamin Kipkoech Lelei & another

A. INTRODUCTION 1) At the heart of the instant dispute are four land parcels known as NANDI HILLS/KAPSIMOTWO/BLOCK 3/176 (UNDERIT), NANDI HILLS/KAPSIMOTWO/BLOCK 5/(KAPSIMOTWO) HILLS/KAPSIMOTWO/BLOCK 199, NANDI 156, NANDI 5/ (KAPSIMOTWO) HILLS/KAPSIMOTWO/BLOCK 5/ (KAPSIMOTWO)161 (The suit parcels of land also known as Kapsimotwo parcels of land herein) all located within Nandi County. 2) The firm of Koech-Lelei and Company Advocates, Korir Bundotich, Cheruiyot Melly and Associates Advocates and Kibet Lemito are on record for the 1 st plaintiff, the 2nd plaintiff, the 1st defendant and the 2nd defendant respectively. 3) The present suit was first generated by way of an originating summons dated 24th February 2022 filed by the 1st Plaintiff against the 1 st Defendant. Later, pursuant to an application dated 14 th April 2022, the late EDWIN OSCAR KIPRUTO was joined to the suit as KAPSABET ELCC E005 OF 2022-JUDGMENT 2

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a 2nd Applicant. However, the said EDWIN OSCAR KIPRUTO died on 12th September 2022. Thereafter, one DINAH CHEVOTIN BARKAR, the representative of the estate of the then 2 nd Applicant was brought in as the 2nd current application for applicant substitution /plaintiff following an of deceased 2 nd the applicant. 4) Subsequently, by an application, Kapsabet ELCC No. E013 of 2022 (OS) was consolidated with the current suit which is the lead file herein. On 26th October 2023, the further amended originating summons dated 19 th May 2023 was converted to a plaint thus, the 1 st Applicant became the 1st Plaintiff whereas the 2nd Applicant became the 2nd Plaintiff. The Replying Affidavit dated 22nd August 2022 was converted to a statement of defense and counterclaim as against the 1st Plaintiff. So, the 1st Respondent was made the 1st Defendant and the 2nd Respondent was made the 2nd Defendant. That the consolidated case be heard by viva voce hearing. KAPSABET ELCC E005 OF 2022-JUDGMENT 3

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5) On 4th July 2022, the court referred the matter to Court Annexed Mediation (CAM) noting that the parties are siblings. However, mediation failed as discerned in the proceedings herein. 6) Originally, this consolidated suit was substantially heard by my predecessor, Mwanyale J. Upon taking over the same and hearing counsel for the respective parties n 5th May 2025, it was directed that hearing of the suit to proceed from where it had reached. B. THE PLAINTIFFS’ CASE 7) In their primary pleadings being a further amended Originating Summons dated 19 th May 2023 which was converted into a plaint as stated in paragraph 3 hereinabove, the 1st and 2nd Plaintiffs are seeking the orders infra: a) THAT, a declaration do issue that the Respondent (1st defendant) herein is holding the suit parcels of land/Kapasimotwo parcels of land as trustee for and on behalf of the Applicant’s son (The 1 st KAPSABET ELCC E005 OF 2022-JUDGMENT 4

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plaintiff) of the late Kipngetich Arap Keter (The Deceased father of the parties herein) b) THAT, a declaration do issue that the suit parcels of land/Kapasimotwo parcels of land are a subject to a trust the same being ancestral land. c) THAT, a declaration do issue that the registration of one BENJAMIN Respondent herein KIPKOECH over the LELEI the parcels of suit land/Kapasimotwo parcels of land is purely as a trustee for the 1st plaintiff and other beneficiaries of the estate of the deceased father of the parties herein. d) THAT, upon the grant of prayers 1, 2 & 3 above, the Respondent's aforesaid trust over the suit parcels of land be distributed to the legal beneficiaries entitled thereto including the 1 st plaintiff. e) THAT, the title deeds of the suit parcels of land/Kapasimotwo parcels of land registered in KAPSABET ELCC E005 OF 2022-JUDGMENT 5

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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. 8) Briefly, the plaintiffs asserted that the deceased father of the parties herein was polygamous as he had three wives. The 1st wife was Cheboree Tapkil who was the 2nd defendant’s mother (1st house). The 2nd wife was Sarah Tabutmoi Keter who was the 2nd plaintiff’s mother as well as the 1 st defendant’s mother (2nd house). The 3rd wife was Esther Jerono Keter who was the 1st plaintiff’s mother (3rd house). 9) The current 2nd Plaintiff, Dina Chevotin Bakar is the legal representative of the Estate of the initial 2 nd applicant Oscar Edwin Kipruto who was the son to Sarah Tarbutmoi, the 2nd wife. As already stated, he was also the brother to the 1 st Defendant both belonging to the 2nd house while the 2nd Defendant is the son to Tapkili Keter, who was the first wife. KAPSABET ELCC E005 OF 2022-JUDGMENT 6

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10) The three houses were settled in their respective parcels of land at Tinderet, Kamobo and Tinderet. The suit parcels of land got registered in the name of the 2 nd defendant to hold the same in trust for the 1 st plaintiff who was a minor at the time but the 2 nd defendant claims absolute ownership of the same hence, provoking the present suit and the counter claim. 11) PW1 was Mr. Alfred Malakwen Chumba, the 1st plaintiff who adopted his witness statement dated 3 rd March 2022 and his supporting affidavit dated 19 th May 2023 as part of his evidence in chief. He stated that he has lived on the suit parcels of land also known as Kaspsimotwo parcels of land since 1975 together with his mother, his wife, his 7 children, 6 nephews and nieces. 12) Also, PW1 testified that the deceased father of the parties herein purchased all the suit parcels of land but specifically for the KAPSIMOTWO parcels of land, registered them in the name of the 1 st Defendant because at the time of the purchase, the 1 st Plaintiff KAPSABET ELCC E005 OF 2022-JUDGMENT 7

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was still a minor. That the deceased father of the parties herein advanced money to the 1st Defendant through their sister, the current 2nd plaintiff which money was used to purchase the KAPSIMOTWO parcels of land in the year 1974. That he lives on NANDI/KAPSIMOTWO/161 where he built his home in 1987. That he cultivates NANDI/KAPSIMOTWO/156 where his elder sister Margaret Chesang was buried. Further, that he has NANDI/KAPSIMOTWO/199 a tea plantation on and that on NANDI/KAPSIMOTWO/176, he planted coffee, nappier grass, blue gum. avocado and bananas. 13) PW2, Dinah Chevotin Barkar relied on her witness statement dated 2nd March 2023 as part of her evidence. She stated that the money used to buy the suit parcels of land or the KAPSIMOTWO parcels of land was given to her by her father so as to buy a property for the 3rd wife. She reiterated most of the averments made by the PW1. KAPSABET ELCC E005 OF 2022-JUDGMENT 8

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14) PW3, Kipserem Arap Ngetich adopted his witness statement dated 2nd March 2022 as part of his evidence in chief. He stated that he had properties in his name which had been bought by their father and which he held in trust for the 1st house. That his father gave money for the purchase of a home for the 3 rd house. That he witnessed when the money was given to the 1st Defendant on the memorial-day of their father and that the said 1st Defendant was to purchase the 3 rd family land in Kapsimotwo. That the property was registered in the name of the 1 st Defendant because the 1st Plaintiff was a minor at the time of the purchase. 15) PW4 was Petro Kipkoech Kirwa who relied on his witness statement dated 2nd March 2022 as part of his evidence in chief. He testified that the 1 st Plaintiff has lived in Kapsimotwo since 1975 together with his mother who was buried there. He told the court that he had never seen the 1st Defendant utilize Kapsimotwo parcels of land. KAPSABET ELCC E005 OF 2022-JUDGMENT 9 the

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16) PW5, Kiptanui David Maiyo relied upon his witness statement dated 7th March 2022. He was the Chief of Kapsimotwo location. He stated that he knew the 1st Plaintiff who lived on the Kapsimotwo parcels of land and also knew the 1st Defendant who lived in Kamobo. That in 2022, the 1st Defendant went to his office and sought to have a share of 1 st plaintiff’s property. That he summoned the siblings but the 1 st Defendant refused to participate in the talks. 17) The 1st Plaintiff filed his submissions dated 4 th December 2025 through M/S Koech-Lelei & Company Advocates in support of the plaintiffs’ claim based on trust over Kapsimotwo parcels of land. He relied on the case of Isack M’Inanga Kiebia v Isaaya Theuri M'lintari & another [2018] eKLR to submit that they had met all the requirements for the establishment of a customary trust over the Kapsimotwo parcels of land. 18) Furthermore, reliance was made on the case of Mburu v Wainaina (Civil Appeal 143 of 2019) [2025] KECA 181 (KLR) in which the court stated; KAPSABET ELCC E005 OF 2022-JUDGMENT 10

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"... Because of his age at the time, as was customary in this part of Kenya, which we take judicial notice of, the elder son, who was the appellant's father, would be registered in trust for his siblings. This history and he explanation given by the respondent persuaded the trial court." C. THE DEFENDANTS’ CASE 19) By his replying affidavit filed on 25 th August 2022, the 1st Defendant opposed the plaintiffs’ claim and raised a Counter-claim against the 1 st plaintiff for the following orders: a) A declaration that the 1st defendant is the absolute and indefeasible legal proprietor of all those Kapsimotwo parcels of land situated in Nandi County. b) A mandatory injunction against the 1st Applicant to compel him to give vacant possession to himself of the Kasimotwo parcels of land within a KAPSABET ELCC E005 OF 2022-JUDGMENT 11

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period of 90 days from the date of the Judgment, in default eviction to issue. c) Upon the grant of prayer (ii) above, a permanent injunction against the 1st Applicant by himself, his agents, servants and/or representatives from trespassing, claiming and/or otherwise interfering with quiet possession and/or enjoyment of Kapsimotwo parcels of land. d) General damages for wrongful occupation of the land parcels of land from the beginning of January the year 2022. e) The Officer Commanding NANDI Hills Police Station or any other police station to assist in effecting the orders so granted by this Honourable Court. f) Costs of the suit. The contention of the 1 st Defendant is that he 20) acquired NANDI/KAMOBO/359, NANDI/KAMOBO/366 and NANDI/KAMOBO/1496 by way of purchase and that he made serious developments on NANDI/KAMOBO/366 and 1496 (all KAPSABET ELCC E005 OF 2022-JUDGMENT 12

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known as Kamobo parcels of land). That he erected permanent and temporary structures on NANDI/KAMOBO/359 with the knowledge of all his siblings but none of them raised an objection. That he is the absolute registered owner of Kapsimotwo parcels of land and MITEITEI BLOCK 2 (KAPLAMAIYWO) 27 ever since he acquired them by way of purchase and obtained title documents in exclusion of all the family members and that the same has never been ancestral land or family properties. 21) Further, the 1st defendant stated that it was not true that their late father settled them in the parcels of land as proposed by the Applicants and supported by the 2nd Respondent. To support this, he explained that the parcels numbers NANDI/KAMOBO/366 and 1496 had not been bought by the time of the demise of their father and so he could not have settled them on properties that were non-existent. 22) The 2nd defendant filed his Replying affidavit sworn on the 19th May 2023 in which he supported the KAPSABET ELCC E005 OF 2022-JUDGMENT 13

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respective cases of the plaintiffs. Therefore, the plaintiffs’ case is partially unopposed. 23) DW1, Benjamin Lalei adopted his witness statement dated 19th September 2023 as part of his testimony. He testified that as the Senior Chief Kamobo location in 2009, he knew the 1 st Plaintiff from when he was in school in Kamobo. That he also knew the initial 2nd applicant while he was living with the 1 st Defendant. He stated that the 1 st Defendant lived in Kabingan village on NANDI/KAMOBO/359 which was allocated to him by the Government in 1969. 24) DW2, Jesimba Norah Kurgat relied on her witness statement dated 19th September 2023 in examination in chief. She stated that she was the elder sister to the 1st Defendant, the 2nd applicant and Teresa Chebor. That their father bought a property in Tereno where the 1st house was settled. That the 1 st Defendant was gifted a property by their maternal uncle in Mogon which he tilled for three years. That the 1 st Defendant was allocated 10 acres of land in Kamobo area. That all KAPSABET ELCC E005 OF 2022-JUDGMENT 14

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his father’s wives had died. That the 1st wife was buried in Tereno, the 2nd one buried in Kamobo and the third wife in Kapsimotwo where she lived for a long time. 25) DW3, Kipruto Kibet, Acting Court Administrator at Kapsabet Law Courts testified that the suits were consolidated. By the court. He produced the Lelei, 1st consolidated file as DExhibit 1. 26) DW4, Benjamin Kipkoech the defendant relied on his witness statement dated 22 nd October 2024. He stated that he bought the Kapsimotwo suit parcels of land on 2 nd February 1974 and that he attached a copy of the agreement for sale dated 2nd February 1974. That he wholly utilizes NANDI/KAPSIMOTWO/156 and 199. That he does not utilize NANDI/KAPSIMOTWO/161 because the 1st Plaintiff lives thereon but that they share parcel number NANDI/KAPSIMOTWO/176. That he bought all the properties he claims using his personal resources obtained from his businesses and from a loan facility taken at Barclays Bank. KAPSABET ELCC E005 OF 2022-JUDGMENT 15

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27) The 1st Defendant filed his submissions dated 17 th August 2026 through Cheruiyot Melly & Associates Advocates who referred the Court to the Court of Appeal decision in the case of Mbasa v Mbasa & another (civil appeal e034 of 2021) [2025] KECA 1420 (KLR) which regarded as mutually exclusive the causes of actions in adverse possession and customary trust. That just like in the present case, the 1st Plaintiff could only have relied on a similar story-line before the two Courts. That a trust must be proved through evidence and cannot be implied or presumed without clear intention. 28) Moreover, the 1st Defendant’s counsel submitted that it was their considered view that the elements of a customary trust as espoused in the Supreme Court decision of ISACK M'INANGA KIEBIA case (Supra), were not established by the Plaintiffs and the 2nd Defendant in their respective cases. They also relied on the Court of Appeal decision in the case of Peter Ndungu KAPSABET ELCC E005 OF 2022-JUDGMENT 16

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Njenga v Sophia Watiri Ndungu [2000] eKLR, in which the Court observed: “A trust can never be implied by the court unless there was an intention to create one in the first place. The court may presume a trust only in cases of absolute necessity, and such presumption must be based on clear intention.” 29) The 2nd Defendant filed his submissions dated 28th July 2026 through Kibet Lemeto & Company Advocates who relied on case of Isaack M'’Inanga Kiebia case (supra) that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor is subject under the proviso to Section 28 of the Registered Land Act 2016 (2012). That the categories of a customary trust are therefore, not closed and it is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor. That each case has to be determined on its own merits and quality of evidence. KAPSABET ELCC E005 OF 2022-JUDGMENT 17

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D.ISSUES FOR DETERMINATION 30) It is trite law that issues for determination in a suit generally, flow from either the pleadings or as framed by the parties for the court’s determination; see Galaxy Paints Co. Ltd-vs-Falcon Guards Ltd (2000) 2 E A 385. 31) In the foregone, the issues for determination are summarized thus; a) 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. b) 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. c) Subject to (a) and (b) above, the orders to issue for the ends of justice in this case. E. DISCUSSION AND DETERMINATION KAPSABET ELCC E005 OF 2022-JUDGMENT 18

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32) It is noteworthy that the parties in this case are all related. They are all brothers but belonging to different houses of their deceased father. Apparently, he 1 st Plaintiff is the youngest of all the four siblings. He is the last born in the 3rd house. His mother, Esther Jerono Keter was the 3rd wife to the parties’ father. 33) The Plaintiffs’ evidence got support from the 2 nd Defendant that their deceased father left behind an organized family, wherein he purchased different parcels of land in which he settled the three houses. Essentially, it has emerged that the 1st house, in which the 2nd Defendant belongs, was settled in the parcels of land registered in the name of the 2 nd Defendant being the KAPCHANGA parcels of land. 34) The 2nd Defendant stated that he purchased the said properties from the money he received from his father with the instructions for him to hold them in trust for the 1st house. That forms the instant contention. 35) On the other hand, it has been revealed that the 2nd house was settled in the KAMOBO PARCELS of land KAPSABET ELCC E005 OF 2022-JUDGMENT 19

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which are registered in the name of the 1 st Defendant who has vehemently disputed this position and maintained that he bought the said properties using his hard-earned money in exclusion of any of his family members. It is in evidence that their deceased father gave out KES. 4,800 through their sister Dinah, who handed the money to the 1st Defendant to purchase the properties on behalf of the 2nd house. 36) For the 3rd house, evidence was tendered to the effect that by the time of the death of their father in the year 1973, the 1st Plaintiff, who was the only son to the said house, was still a minor and could not hold property in his own name. So, their deceased father had the suit parcels of land registered in the name of the 1st Defendant to hold it in trust for the 3 rd House. This is how the 1st Defendant became the registered owner of the KAPSIMOTWO parcels of land. 37) Nonetheless, the 1st Defendant has also disputed this position and maintained that he purchased the said properties in exclusion of the family members. That KAPSABET ELCC E005 OF 2022-JUDGMENT 20

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Kapsimotwo parcels of land do not form part of any trust. 38) It is not in dispute that the 1st Defendant is the registered owner KAPSIMOTWO of the PARCELS KAMOBO and PARCELS, also the MITEITEI/METEITEI BLOCK 2 (KAPLAMAIYWO) 27. Also, it is undisputed that the 2nd Defendant is the registered owner of the KAPCHANGA PARCELS of land which he admitted to be holding in trust for the 1 st house. 39) This Court is guided by the landmark case of ISACK M'INANGA KIEBIA case (supra) on the essentials to be proved in a case for customary trust. Five essentials not exhaustive, were discussed thus; there has to be historical ownership as a family, clan or group/ancestral land; that the claimant must belong to that specific family, clan or community; that the relationship or claim is direct and substantial; that the claimant would have been registered as an owner or beneficiary but for the intervening circumstances and KAPSABET ELCC E005 OF 2022-JUDGMENT 21

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finally that the suit has to be directed against a registered proprietor who is a member of the group. 40) Evidence placed before this Court shows that the 1st Plaintiff has been residing on the KAPSIMOTWO parcels of land since the year 1975. There is no dispute that the 1st plaintiff’s mother and sister were buried on the suit parcels of land. The 1st Plaintiff stated the activities he has been 41) undertaking on the Kapsimotwo parcels of land. His witnesses including PW2, PW4 and PW5, corroborated his account of events that indeed, he was utilizing the said parcels of land. 42) It is worth to note that this Court directed for a site visit to be conducted and the same was conducted on 7th June 2024. A report filed before this Court shows that there had been no contest that the 1 st Plaintiff was the possessory and beneficiary owner of the KAPSIMOTWO parcels of land. 43) In the case of Njiru v Njiru & 3 others [2026] KEELC 3030 (KLR) where the court stated that; KAPSABET ELCC E005 OF 2022-JUDGMENT 22

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‘……….registration determines legal title but that a trust equitable concerns beneficial obligations interests that may and subsist notwithstanding the registration. 44) There has been no contest to the fact of the KAPSIMOTWO PARCELS of land registered in the name of the 1st Defendant. However, the question that follows is whether registration, in itself, extinguishes any beneficial or equitable interests in the suit parcels of land. 45) The considered answer to the aforesaid question by this court is in the negative. Section 28 of the Land Registration Act recognizes that registration is not necessarily conclusive as against overriding interests recognized by law. 46) In Njiru case (supra), the court observed that Section 28(b) of the Land Registration Act expressly recognizes trusts, including customary trusts, as overriding interests affecting land without the necessity of noting them on the register. The effect of that KAPSABET ELCC E005 OF 2022-JUDGMENT 23

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provision is that a registered proprietor may hold title subject to obligations arising under customary or family trust even where such trust is not reflected in the register. 47) Having established the above position, I hold the considered view that the registration of the suit parcels of land in the 1st Defendant’s name has to be interrogated to understand if the intention of the said registration was to lead to a customary trust. In the case of Peter Gitonga versus Francis Maingi M’Ikiara, Meru HCCC No. 146 of 2000, it was held that the circumstances surrounding registration must be examined to determine whether a trust was intended. 48) The initial 2nd Plaintiff, who is deceased and now represented by Dina Chevotin Bakar in the suit, was the son to Sarah Tarbutmoi, the 2 nd wife. He was also the brother to the 1st Defendant both belonging to the 2 nd house. The 2nd Defendant is the son to Tapkili Keter, who was the first wife. KAPSABET ELCC E005 OF 2022-JUDGMENT 24

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49) 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. It has come out undisputed that the KAPSIMOTWO parcels of land were purchased at a time when the 1 st Plaintiff was a minor. Evidence inclusive of the site visit report has been led to show that the 1st Plaintiff moved into the said parcels of land in 1975 and has lived thereon to-date. 50) The said site report conducted also showed that the there are structures and plantations on the said properties. That the same belonged to the 1 st Plaintiff who has occupied the said parcels for a long time. 51) It was in evidence that each of the three families were settled in different parcels of land with the first house being settled in TERENO PARCELS of land, the 2 nd house settled in KAMOBO PARCELS of land and the 3rd house settled in the KAPSIMOTWO PARCELS of land. That in all the said houses, the properties were to be held by the first-born male children to be held in trust KAPSABET ELCC E005 OF 2022-JUDGMENT 25

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for the respective houses. For the 3 rd house, the 1st Plaintiff, who was the only male child, had not attained the age of majority. Therefore, the property of the 3 rd house got registered in the name of the 1st Defendant. 52) The testimonies of the witnesses clearly show that the 1st Defendant never utilized the KAPSIMOTWO PARCELS of land. The 1st Plaintiff solely utilize the said parcels of land. 53) The testimonies presented herein reveal how that the 1st Applicant had occupied the KAPSIMOTWO PARCELS of land since the year 1975. It is also not disputed that the said properties were registered in the name of the 1st Defendant on or about that time. The 1 st Defendant waited until the year 2022 when he laid claim over the said parcels of land. DW1, the area chief testified and produced a letter in which he had summoned the parties herein to discuss the dispute involving the claim by the 1st Defendant on the said properties. The 1st Defendant failed to participate in the proceedings. KAPSABET ELCC E005 OF 2022-JUDGMENT 26

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54) Regarding the KAMOBO PARCELS of land, the 1 st Defendant produced several documents showing that he bought the properties and that the same were registered solely in his name. It remains clear that there has been dispute over the legality or otherwise of the titles held by the 1st Defendant. 55) Evidence was adduced to show that the 1 st Defendant’s brothers namely the late Edwin Oscar Kipruto (immediate brother) and Alfred Malakwen Chumba (step brother and 1st Plaintiff herein) resided on the KAMOBO PARCELS of land on which their father was also buried. There is no doubt, that the 2 nd Plaintiff, believed the said properties to be part of their family home since the other two houses were settled in other distinct parcels of land as set out in paragraph 50 hereinabove. 56) Article 10 (2) (b) of the Constitution of Kenya 2010 enshrines equity as one of the national values and principles of governance that binds all persons. The maxims of equity include; KAPSABET ELCC E005 OF 2022-JUDGMENT 27

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‘Equity looks at the intent rather than the form.’ 57) It must be noted that trust is an equitable remedy. A customary law trust is a matter of fact proven by satisfactory evidence presented in court as held in Kiebia case (supra) and Muthuitha vs Muthuita {1982-1988} 1 KLR 42, among other case law. 58) This court is of the considered view that the KAMOBO PARCELS of land also form part of the customary trust held by the 1 st Defendant on behalf of the 2nd house, including the 2nd Plaintiff, being his immediate brother. This also affects the parcel of land number MITEITEI BLOCK 2 (KAPLAMAIYWO) 27 which is also registered in the name of the 1 st Defendant. 59) By the way, the remaining parcels of land are those referred to as the KAPCHANGA PARCELS, all of which are registered in the name of the 2 nd Defendant. There was no dispute on these parcels because the 2 nd Defendant admitted that they were purchased by their late father and registered in his name with the intention that they would be held in trust for the 1st house. KAPSABET ELCC E005 OF 2022-JUDGMENT 28

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60) To that end, this court finds that the plaintiffs have proved their case which is partially unopposed by the 2nd defendant to the requisite standard against the 1 st defendant. Their case displaces the 1 st defendant’s counter claim. 61) Thus, this Honourable court hereby renders the following final orders: a) Judgment be entered for the plaintiffs in consonant with the further amended originating summons dated 19th May 2023 for; i. a declaration to issue that the Respondent (1st defendant) herein is holding land NANDI HILLS/KAPSIMOTWO/156, parcels known as NANDI NANDI HILLS/KAPSIMOTWO/161, HILLS/ KAPSIMOTWO NANDI BLOCK 5 (KAPSIMOTWO) 199 & NANDI HILLS KAPSIMOTWO BLOCK 3/176 as trustee for and on behalf of the Applicant’s son (The 1st KAPSABET ELCC E005 OF 2022-JUDGMENT plaintiff) of the 29 late

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Kipngetich Arap Keter (The Deceased father of the parties herein) ii. a declaration to issue that HILLS/KAPSIMOTWO/156, NANDI NANDI HILLS/KAPSIMOTWO/161, NANDI HILLS KAPSIMOTWO BLOCK 5 (KAPSIMOTWO) 199 & NANDI HILLS KAPSIMOTWO BLOCK 3/176 is a subject to a trust the same being ancestral land. iii. a declaration to issue that the registration of one BENJAMIN KIPKOECH LELEI the Respondent herein over the suit parcels of land known as NANDI HILLS/KAPSIMOTWO/156, NANDI HILLS/KAPSIMOTWO/161, NANDI HILLS KAPSIMOTWO BLOCK 5 (KAPSIMOTWO) 199 & NANDI HILLS KAPSIMOTWO BLOCK 3/176 is purely as a trustee for the 1st plaintiff and other beneficiaries of the KAPSABET ELCC E005 OF 2022-JUDGMENT 30

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estate of the deceased father of the parties herein. iv. Upon the grant of prayers i, ii & iii hereinabove, the Respondent's aforesaid trust over the suit parcels of land be distributed to the legal beneficiaries entitled thereto including the 1st plaintiff. v. 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 1st plaintiff. b) The Counter Claim in entirety as captured in the 1st defendant’s replying affidavit filed on 25th August 2022, be dismissed. KAPSABET ELCC E005 OF 2022-JUDGMENT 31

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c) Given this is a family matter involving siblings, parties to bear their respective costs of the suit and the counter claim. 62) It is so ordered. DATED and DELIVERED at KAPSABET this 30th day of SEPTEMBER 2026. HON. G M A ONGONDO JUDGE In the presence of; 1. Ms Joan Koech learned counsel for the 1st plaintiff 2. Mr Victor Kiprono instructed by Mr Melly learned counsel for the 1st defendant 3. Walter and Emmaculate, court assistants KAPSABET ELCC E005 OF 2022-JUDGMENT 32

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