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Court of AppealDismissedCivil Appeal at Mombasa (appellate jurisdiction)

Issa v Suleiman & 3 others (Civil Appeal E025 of 2023) [2025] KECA 1336 (KLR)

Court of Appeal of Kenya
18 July 2025
2,596 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld that a Mombasa house is family trust property, ruling a properly produced 1979 family agreement proved the trust despite the appellant's forgery and production objections.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Mombasa against the judgment of the Environment and Land Court (N. A. Matheka, J) dated 6th December 2022, which had allowed the respondents' claim to be declared beneficial owners of the house on Plot No. Mombasa/Block XVII/544 and permanently restrained the appellant from evicting them. The respondents' case was that their late father purchased the land on which their mother's house stood, had it registered in the name of the appellant's late father pursuant to an Agreement dated 4th June 1979, and that the appellant's father held the title as trustee for himself and the respondents, the respondents being entitled to the ground floor. The appellant denied the trust, contending his father bought the property in 1966, and alleged the Agreement was a forgery. On appeal, the appellant argued the Agreement was merely marked for identification and never formally produced or proved, and that no trust relationship was established. The Court, comprising Murgor, Laibuta and Ngenye-Macharia, JJA in one judgment, restated the mandate of a first appellate court to re-evaluate evidence with caution. It found the record showed PW1 applied to produce the documents as exhibits pex 2-5, including the Agreement marked PMFI 1, which the Judge marked as PEx-1; it was therefore duly produced. Its authenticity was uncontroverted: it was executed by both fathers, attested by an advocate and stamped. The Court held the Judge was not at fault in finding the suit property was held in trust and that the respondents were beneficial owners of the ground floor. The appeal was dismissed in its entirety, the judgment below upheld, with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge was at fault in holding that the house without land situate on the suit property was held in trust for both the appellant and the respondents, and that the respondents were entitled to the ground floor thereof
  2. 2.Whether the Agreement of 4th June 1979 was duly produced and proved in evidence

Key legal issues

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01

Whether the Agreement of 4th June 1979 creating the trust was duly produced and proved in evidence

Holding

It was: the 1st respondent applied to have the documents produced as exhibits pex 2-5, including the Agreement marked PMFI 1, and the Judge marked it as PEx-1; its authenticity was uncontroverted.

Reasoning

The record showed PW1 expressly applied to produce the documents as exhibits, including the Agreement marked for identification. The Judge then marked it as PEx-1. The Agreement was executed by both fathers, attested by an advocate of Chudasama & Company and stamped. The appellant's assertion that it was merely marked for identification was contradicted by the record, and its authenticity was uncontroverted.

p. 5
02

Whether the suit property (the house without land) was held in trust for the respondents and the appellant

Holding

Yes. The Agreement expressly recorded that the plot land was bought by the respondents' father, the new house was registered in the appellant's father's name due to life challenges, and the house belonged to the family, entitling the respondents to the ground floor as beneficial owners.

Reasoning

The Agreement's contents showed the land was purchased by the respondents' father and registered in the appellant's father's name for practical reasons, with the house belonging to the family and the appellant's father entitled to build upward. Executed by both fathers and attested by an advocate with an official stamp, its existence and authenticity were uncontroverted, sustaining the trial court's trust finding.

p. 5
03

The mandate of a first appellate court

Holding

The Court on a first appeal should reconsider and evaluate the evidence and draw its own conclusions, but interfere with the trial judge's factual findings only with caution.

Reasoning

Citing Ng'ati Farmers and Peters v Sunday Post, the Court affirmed that it has jurisdiction to review evidence but should exercise caution in departing from the trial judge's findings, since the trial judge saw and heard the witnesses. This framework was applied but, on its own evaluation of the record, the Court found the trial judge's trust finding sound.

p. 3
04

The abandoned 3rd ground concerning the identity of Hamude

Holding

The ground was not pursued and was inconsequential to the existence and validity of the trust.

Reasoning

The appellant did not pursue the question whether Hamude listed as a beneficiary was the respondents' mother or the appellant's sister. The Court held that even if determined, it bore no consequence on the validity of the trust, so nothing turned on it and it did not affect the appeal's outcome.

p. 4

Legal principles established

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  • A document marked for identification and subsequently applied to be produced as an exhibit by a witness, and marked by the court, is duly produced in evidence and may found a holding; a court forming an opinion whether a document is proved considers all facts and evidence on record, not the document alone.
  • On a first appeal, the Court of Appeal must reconsider and evaluate the evidence itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses, and it will interfere with findings of fact only with caution.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The judgment and decree of the ELC at Mombasa (N. A. Matheka, J) dated 6th December 2022 is upheld
  3. 3.The appellant shall bear the costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

Wrote the judgment

On appeal from
Environment and Land Court at Mombasa
ELC Case No. 398 of 2017
Jurisdiction invoked
First appellate jurisdiction under Article 164 of the Constitution of Kenya over appeals from the Environment and Land Court

Relief refused

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The appellant's appeal against the finding of a trust and beneficial ownership

The Agreement was duly produced and proved, and the trust finding was not erroneous

p. 6

Costs

The appellant shall bear the costs of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case.
p. 4Proof of documents marked for identification
When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the Court would look not at the document alone but it would take into consideration all facts and evidence on record.
p. 4Judicial assessment of proof of documents
The uncontroverted evidence of its existence and authenticity leads to the inescapable conclusion that the learned Judge was not at fault in holding that the suit property was held in trust for both the respondents and the appellant, and that the respondents were the beneficial owners of the ground fioor thereof.
p. 5Trust over suit property upheld
In view of the foregoing, we find that the appeal fails and is hereby dismissed in its entirety. Consequently, the judgment and decree of the ELC at Mombasa (N. A. Matheka, J) dated 6th December 2022 is hereby upheld.
p. 6Final orders - dismissal and affirmation of the judgment below
The appellant shall bear the costs of the appeal. Orders accordingly.
p. 6Costs of the appeal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Issa v Suleiman & 3 others (Civil Appeal E025 of 2023) [2025] KECA 1336 (KLR)", Case Analysis (2025). Civil Appeal at Mombasa (appellate jurisdiction). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1336/eng@2025-07-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.