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ELCDismissedVihiga ELC Appeal No. E006 of 2021 (appeal from Vihiga SPMC ELC No 21 of 2018)

Liyokho v Liyokho & another (Environment and Land Appeal 20 of 2021) [2022] KEELC 3831 (KLR)

Environment and Land Court
21 July 2022
EAE Asati
3,030 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a son's claim that family land was held in trust for him, ruling he failed to prove the land was ancestral.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Vihiga against the judgment of the Senior Principal Magistrate delivered on March 23, 2021, which dismissed the appellant's suit claiming beneficial rights over parcel East Bunyore/Ebusamia/60 under Luhya customary law and a declaration of trust against his father, the 1st respondent, and allowed the 1st respondent's counterclaim for removal of a caution. The appellant advanced six grounds contending that the trial magistrate failed to evaluate the evidence and to apply Luhya customary law on trusteeship, under which he, as last-born son, was entitled to inherit his parents' homestead after occupying and developing the land for about 30 years. The 1st respondent maintained he was the absolute registered owner who bought the land, that no trust was proved, and that the law does not presume a trust. The court reiterated the settled principles governing first appeals, including the duty to re-evaluate evidence while making allowance for not having seen or heard the witnesses. It found the evidence inconclusive on whether the land was ancestral, held that the burden under sections 107, 108 and 109 of the Evidence Act lay on the appellant, and distinguished the authorities relied on because in those cases ancestral status was proved. It further noted that the original 1st respondent died during the appeal with the land still registered in his name; the substituted respondent held only a limited grant ad litem without capacity to administer the estate, so the appellant's claim must be pursued in succession proceedings. The appeal was dismissed with each party bearing their own costs.

Questions the Court framed

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

  1. 1.Whether the trial magistrate erred in failing to find that the suit land East Bunyore/Ebusamia/60 is ancestral land held in trust for the appellant and his brothers under Luhya customary law
  2. 2.Whether the appellant discharged the burden of proving the existence of a customary trust
  3. 3.Whether the trial magistrate properly evaluated the evidence and applicable customary law
  4. 4.What is the effect of the death of the original 1st respondent on the claim

Key legal issues

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01

Whether the suit land was ancestral land attracting a customary trust

Holding

The appellant failed to prove the land was ancestral; the 1st respondent claimed he bought it, and the customary rule on a last-born son inheriting the homestead was neither proved mandatory nor shown to apply to non-ancestral land

Reasoning

The appellant claimed the land passed from his grandfather to the 1st respondent, while the 1st respondent and DW2 testified he bought it. The evidence was inconclusive. Under sections 107, 108 and 109 of the Evidence Act, the burden lay on the appellant, who did not discharge it. The authorities relied on differed because in those cases ancestral status was proved.

p. 5
02

Effect of the death of the 1st respondent during the appeal

Holding

The land devolves to the estate under the Law of Succession Act; the limited grant ad litem does not empower the substituted respondent to administer the estate, and the appellant must pursue his claim in probate and administration proceedings

Reasoning

The original 1st respondent died with the suit land still registered in his name. His successor obtained only a limited grant ad litem permitting defence of the suit until further representation. Distribution of the estate and determination of beneficiaries' shares fall within the probate and administration forum's jurisdiction.

p. 6

Legal principles established

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  • On a first appeal the appellate court must re-evaluate the whole evidence and reach its own conclusions while making allowance for not having seen or heard the witnesses
  • The burden of proving that land is ancestral land or held in trust lies on the party asserting it
  • Where the registered owner dies pending the suit, the limited grant ad litem does not confer capacity to administer the estate and beneficiaries must pursue their claims in succession proceedings

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear their own costs

The bench

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

EA
majority

Wrote the judgment

On appeal from
Senior Principal Magistrate's Court, Vihiga
SPMC ELC No 21 of 2018
Jurisdiction invoked
First appeal from the Senior Principal Magistrate's Court (Environment and Land jurisdiction) under Article 162(2)(b) of the Constitution and the Environment and Land Court Act

Relief refused

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Setting aside the judgment of March 23, 2021 and allowance of the appellant's suit (declaration of beneficial rights and trust, permanent injunction)

The appellant failed to prove that the suit land was ancestral land or that a customary trust existed; further, following the death of the 1st respondent, the claim over the estate must be agitated in succession proceedings

p. 6

Costs

Since the parties are close family members each party to bear own costs.

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 upshot is that the appeal lacks merit and is hereby dismissed. Since the parties are close family members each party to bear own costs.
p. 6Final orders - dismissal of appeal and costs
The burden of proof under sections 107, 108 and 109 of the Evidence Act is with the appellant to demonstrate that the suit land or the specific portion he is claiming is ancestral land.
p. 5Burden of proving ancestral land/trust
As such, the appellant will have to await for the formal succession proceedings in a probation and administration cause to agitate his claim therein.
p. 6Remedy lies in succession proceedings
For trust, the plaintifi must prove with cogent evidence that the suit premises was ancestral land and thus family land.
p. 4Proof of trust (quoting Susan Mumbi Waititu v Mukuru Ndata)

Issues in the judgment

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minor

The appellant's name is inconsistently rendered - the judgment records the 1st respondent testifying about 'martin (the appellant)' and the substituted 1st respondent as Florence Elusa Oginda, without stating the appellant's full name elsewhere in the extract

minor

The case cited as 'Mbui Makangu v Gerald Mutwori Mbui' in submissions is rendered 'Mbui Mukangu v Gerald Mutwiri Mbui' in the court's analysis - inconsistent spelling of the same authority

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, "Liyokho v Liyokho & another (Environment and Land Appeal 20 of 2021) [2022] KEELC 3831 (KLR)", Case Analysis (2022). Vihiga ELC Appeal No. E006 of 2021 (appeal from Vihiga SPMC ELC No 21 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3831/eng@2022-07-21

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