Henry Odende v Thomas Sawanda, George Ochillo & Land Registrar, Siaya County
The bottom line
#The Court of Appeal dismissed a family land claim, confirming that whoever alleges a customary trust in Kenya must prove it with solid evidence.
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 learned judge erred by dismissing the appeal under Order 42 Rule 1(2) of the Civil Procedure Rules
- 2.Whether the appellant proved the existence of a customary trust over the suit property
Key legal issues
#Whether the ELC judge dismissed the appeal for breach of Order 42 Rule 1(2) of the Civil Procedure Rules
The judge did not dismiss the appeal on that basis; she merely observed the grounds were argumentative, then proceeded to determine the appeal on its merits. The limb of the appeal lacked merit.
The Court of Appeal examined the impugned judgment and found the ELC judge had noted the defects in the memorandum of appeal but went on to consider the consolidated ground and the merits of the customary trust claim. The appellant's assertion that the dismissal rested on Order 42 Rule 1(2) was therefore misplaced.
Whether the appellant proved a customary trust over Land Parcel No. North Gem/Maliera/876
No. The appellant failed to discharge the burden of proving the customary trust once the respondents disputed his claim with evidence, and the two courts below correctly dismissed the claim.
Applying the Kiebia v M'lintari elements, the appellant relied on ancestral allocation, the 1967 registration during the brothers' absence, long occupation and a 1989 family arrangement. The respondents adduced unrebutted evidence that the wives were present during adjudication and that other parcels were available to the other family branches, shifting the burden to the appellant, which he failed to discharge.
Legal principles established
#- On a second appeal the Court of Appeal confines itself to matters of law and will not revisit facts unless the two courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
- The burden of proving a customary trust falls on the party alleging it, and once the claim is disputed with evidence the burden rests on the claimant to discharge it.
Court orders
#- 1.Appeal dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Siaya
- Case No. E007 of 2023
- Jurisdiction invoked
- Second appeal to the Court of Appeal limited to matters of law
Relief refused
#Setting aside the decisions of the two courts below and grant of the reliefs sought (declaration of customary trust, partition, injunction)
Appellant failed to discharge the burden of proving a customary trust; claim did not meet the Kiebia threshold
Costs
Appeal dismissed with costs to the respondents
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.
This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters, they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
the burden of proving a customary trust falls on the party alleging it, as reaffirmed in the case of Mbui Mukangu v Gerald Mutwiri Mbui [2004] eKLR.
In the circumstances, we find no fault in the judgments of the trial court and the ELC, whether in application of the law or legal principles and doctrines. Accordingly, the appeal lacks merit and is dismissed with costs to the respondents.
Issues in the judgment
#Judgment describes 'four key elements' of customary trust but the quoted Kiebia formulation lists five elements (a)-(e).
Delivery date printed as 25th September 2026, which postdates the appeal filing year 2024 and appears anomalous.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry Odende v Thomas Sawanda, George Ochillo & Land Registrar, Siaya County", Case Analysis (2026). Civil Appeal No. E280 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1952/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.