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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal 126 of 2019

M'Kilima v Kiriinya & another

Court of Appeal
19 December 2025
3,231 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Court of Appeal ruled a brother who lived on and developed three acres of family land for decades owns that portion through a customary trust.

What this practically means

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Executive summary

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The appellant sued his elder brother (the 1st respondent) and the latter's son, seeking a declaration that parcel LR No. Abothuguchi/Igane/727 was held in trust for him and an order for transfer of half of it. The respondents denied the trust, asserting the land was gifted to the 1st respondent and that the appellant had been allocated land at Gaitu, and counterclaimed for eviction. The Environment and Land Court at Meru (Cherono, J.) found for the 1st respondent, holding the appellant had not proved his claim. On appeal, the Court of Appeal at Nyeri (Mohammed, Kimaru and Muchelule, JJA) framed a single issue: whether a trust subsisted over the suit land entitling the appellant to a portion. Applying the Supreme Court's five-element test for customary trust in Kiebia v M'lintari, the Court found the land was ancestral/family land before registration, the appellant belongs to the family, his occupation of three acres predated registration, and the claim was directed at a family member registered as proprietor. The Court held the appellant's long occupation, the registered proprietor's failure to assert rights, and the fact that the 1st respondent also benefited from the Gaitu land established a customary trust on a balance of probabilities. The appeal was allowed: the ELC judgment was set aside and substituted with a declaration that the 1st respondent holds three acres in trust for the appellant, with transfer documents to be executed or signed by the Deputy Registrar in default. No order as to costs was made, the dispute being a family matter.

Questions the Court framed

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

  1. 1.Whether there exists a trust in respect of the suit parcel of land as to entitle the appellant to a portion thereof

Key legal issues

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01

Whether a customary trust subsisted over the suit land in favour of the appellant

Holding

Yes. The land was ancestral/family land before registration; the appellant is a brother of the registered proprietor; he occupied three acres since before registration; and the claim is directed at a family member registered as proprietor. The elements of customary trust were satisfied.

Reasoning

The Court applied the five elements from Kiebia v M'lintari. Both parties' evidence confirmed the land belonged to their grandfather and father before first registration. The appellant's long occupation, development of his portion, and the registered proprietor's failure to assert rights until the counterclaim, together with the mother's and sister's testimony that he occupied as of right, established the trust on a balance of probabilities.

p. 5
02

Whether the appellant's allocation of land at Gaitu defeated the trust claim

Holding

No. The 1st respondent was also a beneficiary of the Gaitu land, so the allocation elsewhere did not fully explain the situation or displace the trust.

Reasoning

The appellant did not deny receiving Gaitu land but showed all sons, including the 1st respondent, benefited from it. The mother's and sister's evidence established on a balance of probabilities that the 1st respondent was also a beneficiary by inheritance of the Gaitu land, undermining the defence that the appellant had already been provided for.

p. 5

Legal principles established

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  • A first appellate court must re-analyze and re-assess the evidence and reach its own independent conclusions, while making allowances for not having seen or heard the witnesses.
  • A customary trust is established where the land was family, clan or group land before registration; the claimant belongs to that family; the relationship is not remote; the claimant would have been entitled to registration but for intervening circumstances; and the claim is against a registered proprietor who is a family member.
  • Long occupation of a portion of family land by a family member, coupled with the registered proprietor's failure to assert proprietary rights, supports a finding of customary trust.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment and decree of the Environment and Land Court is set aside and substituted with a judgment that the appellant is entitled to be registered as owner of a three (3) acre portion of LR No. Abothuguchi/Igane/727 which the 1st respondent holds in trust for the appellant
  3. 3.The 1st respondent shall execute all transfer documents so that the said portion is surveyed, subdivided and transferred to the appellant
  4. 4.In default, the Deputy Registrar of the Court shall sign the conveyancing documents on his behalf
  5. 5.No order as to costs

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court at Meru
ELC Case No. 95 of 2005
Jurisdiction invoked
First appeal to the Court of Appeal against the judgment of the Environment and Land Court

Relief refused

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Registration of the appellant as owner of half of the suit land (as pleaded at trial)

The Court limited relief to the three-acre portion actually occupied by the appellant, not half the parcel

p. 5

Costs

There shall be no order as to costs as this was a family dispute.

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.

The judgment and decree of the Environment and Land Court is set aside and substituted by a Judgment of this Court's finding that the appellant is entitled to be registered as the owner of a portion of three (3) acres out of LR No. Abothuguchi/Igane/727 which the 1st respondent is holding in trust for the appellant.
p. 5Final orders - substitution of trial judgment with declaration of customary trust
There shall be no order as to costs as this was a family dispute.
p. 5Costs order
This being a first appeal, we have a duty to re-analyze and re- assess the evidence on record, and reach our own independent conclusions.
Duty of first appellate court
It is not every claim of a right to land that will qualify as a customary trust.
p. 4Customary trust - threshold (as quoted from Kiebia v M'lintari)

Issues in the judgment

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minor

Area occupied stated inconsistently: appellant claims three acres while the 1st respondent conceded two acres; the Court adopts three acres without reconciling.

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, "M'Kilima v Kiriinya & another", Case Analysis (2025). Civil Appeal 126 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2243/eng@2025-12-19

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