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)
The bottom line
#Kenya's Court of Appeal confirmed that registering land owners as tenants in common defeats claims that they hold the property in trust for the wider family.
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 Respondent held the title to the suit property in trust for the benefit of the Appellants
- 2.Whether the Appellants proved the existence of a customary trust over Kilifi/Chilulu/269 at the time of registration
Key legal issues
#Whether a customary trust existed over the suit property
No customary trust was established. Although the land was once family land of the grandfather, the Appellants did not prove an intention at adjudication that the two registered proprietors would hold the land for the wider family. The register recorded the two brothers as proprietors in common with equal half shares, denoting distinct legal ownership rather than fiduciary holding.
The Court applied the Supreme Court's framework in Isack M'inanga Kiebia on the elements of a customary trust and the principle that a trust is never presumed absent clear intention. It re-evaluated the first-instance evidence as a first appellate court and found no adjudication records, committee minutes, or credible family agreement evidencing an intention to create a trust. The registration structure as tenants in common in equal shares was decisive against a fiduciary holding.
Whether payment of adjudication fees by family members proves a trust
A receipt for adjudication fees paid by family members may be consistent with the land being regarded as family land but is not conclusive proof of a trust; evidence of an intention that registered proprietors hold for a wider family is required.
The Court distinguished between evidence consistent with family ownership and evidence of an intention to create a trust. Without adjudication records, minutes of the adjudication committee, or credible evidence of a family agreement, the receipt alone cannot found a trust, consistent with Muthuita v Muthuita on proof of the root of title and customary law.
The first appellate court's mandate
As a first appellate court, the Court of Appeal must re-evaluate the evidence and draw its own independent conclusions while satisfying itself that the trial court's conclusions are consistent with the evidence.
The Court invoked Peter M. Kariuki v Attorney General and Nairobi Bottlers Limited v Imbuga, restating that the mandate under rule 31 of the Court of Appeal Rules, 2022 is to re-appraise the evidence, draw inferences of fact and, in effect, retry the case, subject to the absence of an advantage enjoyed by the trial court.
Legal principles established
#- A customary trust, if proved, is an overriding interest to which a registered proprietor is subject, but it is not every claim of a right to land that will qualify as a customary trust; the claimant must prove the nature of the holding and the intention of the parties at registration
- The burden of proving a customary trust lies on the party alleging its existence, and a trust can never be implied by the court absent a clear intention to create one
- Registration of proprietors as tenants in common in equal, defined shares is evidence that the parties intended distinct legal ownership, not a fiduciary holding, and ousts a claim of customary trust
- Payment of adjudication fees by a family member, even jointly, is not conclusive evidence of a customary trust
Court orders
#- 1.Appeal dismissed with costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (trial court, judge not named in judgment)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules, 2022 (rule 31 mandate re-affirmed)
Relief refused
#Declaration of customary trust, subdivision of the suit property and permanent injunction sought by the Appellants
The Appellants failed to prove an intention to create a customary trust at the time of registration; the land was registered as held by two proprietors in common in equal shares
Costs
The appeal was dismissed with costs to the 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.
The appeal has no merit and is hereby dismissed with costs to the Respondent. It is so ordered.
When the nature of the land registration of the suit property is considered, it cannot be doubted that the description that the late Katana Gunga Baya and the Respondent were proprietors in common ousted the Appellants assertion that there was an intention to create a trust
The burden of proving a customary trust falls on the party that alleges the existence of a trust as reafirmed in the case of Mbui Mukangu v Gerald Mutwiri Mbui [2004] eKLR.
It is not every claim of a right to land that will qualify as a customary trust.
Issues in the judgment
#The trial court (and the court from which this appeal was brought) is referred to only as 'the trial court'/'the learned Judge'; the court, case number and judge of the decision below are not identified in the judgment.
The case number of this appeal and the names of all Appellants beyond the first are not stated in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "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)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/899/eng@2026-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.