Tundwe v Wasike
The bottom line
#A Kenyan court confirmed that land registered in one family member's name can still legally belong to the whole family through a trust.
What this practically means
#Executive summary
#Key legal issues
#Mandate of a first appellate court
The court is entitled to re-evaluate the evidence and draw its own conclusions subject to due allowance for not seeing witnesses
Relying on Selle v Associated Motor Boat Co. and Jabane v Olenja, the court restated the classic first-appeal principles: rehearing, fresh evaluation of evidence, and restraint in disturbing findings of fact based on demeanour and credibility.
Whether the respondent sold her share of the land to Miti Otuba Kibuyi
The trial court's finding that the respondent did not sell the land was corroborated by tribunal proceedings and DW2's evidence
The tribunal record showed Miti bought land from the father, with payment going through the plaintiff to the father, corroborating the defendant's denial of sale. DW2 also confirmed a portion had been sold by the father before the 1988 subdivision witnessed between the sisters.
Whether a trust existed over parcel W. Bukusu/N. Myanga/1909
The original parcel was clan land registered in the plaintiff's name to hold in trust for herself and the family including the defendant; the trial court's finding was upheld
The court found the original parcel W. Bukusu/N. Myanga/291 was clan land given to the parties' father and registered in the plaintiff's name in trust for the family. After the sale to Miti, the remainder was shared, and the plaintiff registered herself on 1909 leaving the defendant with no share, sustaining the trust declaration.
Legal principles established
#- A first appeal court must reconsider and evaluate the evidence afresh while making due allowance for not having seen or heard the witnesses
- An appellate court will not interfere with findings of fact of a trial court unless based on no evidence or arrived at on wrong principles
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear her own costs of the appeal and the costs in the trial court
- On appeal from
- Chief Magistrate's Court at Bungoma
- Bungoma CM-ELC No. 88 of 2018
- Jurisdiction invoked
- First appeal to the Environment and Land Court under the Environment and Land Court Act against the judgment/decree of the Chief Magistrate's Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tundwe v Wasike", Case Analysis (2023). Environment and Land Appeal E022 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21563/eng@2023-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.