Roche v Roche & another (Civil Appeal 177 of 2019) [2025] KECA 1637 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that daughters have equal rights to ancestral land, holding the brother's land subject to a customary trust for his sister.
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 notice of appeal and the appeal were filed out of time, rendering the appeal incompetent
- 2.Whether the appellant could raise the question of land adjudication for the first time in submissions, contrary to rule 107 of the Court of Appeal Rules
- 3.Whether John held one acre of the suit land, including the parents' homestead, in trust for Cyprian under a customary trust
- 4.Whether the learned Judge's award of costs to Cyprian should be disturbed
Key legal issues
#Whether a customary trust subsisted over one acre of the suit land including the parents' homestead
Yes. The evidence of Fredrick and Cyprian, uncontroverted, established that Fredrick held the family land in trust and that the mother wished the unmarried Cyprian to be allocated the homestead parcel. John holds the one acre in trust for Cyprian.
Applying the Supreme Court's guidelines in Kiebia v M'lintari, the Court found the elements of a customary trust satisfied: the land was family land before registration, Cyprian belongs to the family, and the claim is directed against registered family members. The categories of customary trust are not closed. Her failure to object during adjudication could not defeat the trust where there was no evidence she had notice of the process. Equality under Article 27 and Section 38 of the Law of Succession Act reinforce her entitlement.
Whether a daughter's gender or marital status bars her from ancestral land under custom
No. The Constitution and the Law of Succession Act promote non-discrimination in inheritance, guaranteeing equal rights for sons and daughters regardless of gender or marital status; retrogressive cultural beliefs are repugnant to justice and morality.
The Court grounded its holding in Article 27's guarantee of equality and equal protection, and Section 38 of the Law of Succession Act which devolves the net intestate estate equally among surviving children. Cyprian invoked Section 3(2) of the Judicature Act under which customary law applies only so far as it is not repugnant to justice and morality. John's reliance on the tradition that daughters are not entitled to ancestral land could not stand against these provisions.
Whether the appeal was filed out of time
The Court declined to strike out the appeal on that ground because the respondent did not move timeously and the appeal was argued substantively on the merits.
Although the Court may act on its own motion against an appeal filed out of time, the respondent was under a duty to be alert and move the Court timeously. Having failed to do so, and the appeal having been argued substantively, the Court elected to decide the appeal on its merits rather than on the procedural objection.
Costs of the suit
The trial court's award of costs to Cyprian was a judicious exercise of discretion under Section 27(1) of the Civil Procedure Act and would not be disturbed.
Costs follow the discretion of the court under Section 27(1) of the Civil Procedure Act, to be exercised judiciously in light of factors such as the conduct of the parties, the subject of litigation, and the relationship between the parties. The appellant did not fault the Judge's discretion itself, only the outcome, and the Court found no evidence of injudicious exercise.
Legal principles established
#- A customary trust, once proved, is an overriding interest that binds a registered proprietor even without notation in the register; its categories are not closed and each case turns on the evidence of the nature of the holding and the intention of the parties.
- Failure to challenge a land adjudication process does not negate a claimant's claim to part of a parent's estate held in trust by the registered sibling, particularly where the claimant had no notice of the adjudication.
- A party cannot raise a new question, such as the validity of adjudication, for the first time in submissions; doing so contravenes rule 107 of the Court of Appeal Rules.
- On a first appeal, the Court of Appeal must re-evaluate, re-assess and re-analyse the evidence on the record and reach its own conclusions, while making due allowance for not having seen or heard the witnesses.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under its appellate jurisdiction (not a reference under Article 163(4)); the judgment invokes rule 107 of the Court of Appeal Rules
Relief refused
#Appellant's plea that the costs awarded to Cyprian be dismissed on the ground that the dispute involves family members
No evidence that the learned Judge exercised his discretion injudiciously; the Court had no basis to interfere
Costs
Appeal dismissed with costs to the 1st respondent.
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.
In the end we find no merit in this appeal, and it is therefore dismissed with costs to the 1st respondent.
a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the rights to which a registered proprietor, is subject under the proviso to Section 28 of the Registered Land Act
The categories of a customary trust are therefore not closed. 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.
the fact that she did not challenge the land adjudication process, does not negate her claim to part of the parent's estate held in trust by her two brothers
we arrive at our own conclusion that Cyprian is entitled to a share of her father's property just like her brothers, by virtue of Section 38 L.S.A and Article 27
The question of adjudication did not arise in the pleadings, or the memorandum of appeal. It therefore, does not lie in the mouth of the appellant to raise it at this belated hour in the submissions.
Issues in the judgment
#The judgment refers to the Land Registration Act as '2016' in the quoted trial-court extract, while the rest of the judgment treats it without a year; the date appears inconsistent.
The judgment states the respondent failed to move the Court, but refers to 'the appellant having failed to do so' when the out-of-time complaint was the respondent's to raise.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Amol (Suing as Legal Representative of the Estate of Japhet Juma Fred - Dcd) v Omondi & 2 others (Environment and Land Case E015 of 2023) [2026] KEELC 3639 (KLR)[2026] KEELC 3639 (KLR)3 Jun 2026
- Meteur (As representative/administrator of the Estate of Judith Ngeshi Moile - Deceased) & another v Moile & 2 others (Land Case E144 of 2025) [2026] KEELC 2931 (KLR)[2026] KEELC 2931 (KLR)15 May 2026applied
- Baya & 3 others (Suing on their own behalf and as personal representatives of the Estate of the Late Estate of the Late Katana Gunga Baya - Deceased) v Gunga (Civil Appeal E027 of 2023) [2026] KECA 899 (KLR)[2026] KECA 899 (KLR)15 May 2026followed
- Tanchu v Tanchu (Environment and Land Case E056 of 2021) [2026] KEELC 2535 (KLR)[2026] KEELC 2535 (KLR)30 Apr 2026applied
Cite this brief
#Cite this brief
Caselaw, "Roche v Roche & another (Civil Appeal 177 of 2019) [2025] KECA 1637 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1637/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.