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Case Brief · caselaw.co.ke
ELCDismissedEnvironment and Land Appeal E022 of 2021· [2023] KEELC 21563 (KLR)

Tundwe v Wasike

Environment and Land Court
16 November 2023
3,095 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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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

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Executive summary

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The appellant, Regina Nang'unda Tundwe, appealed against the judgment of Hon. G.P Omondi (PM) delivered on 10 June 2021 in Bungoma CM-ELC No. 88 of 2018, which dismissed her suit for permanent injunction and eviction over land parcel W. Bukusu/N. Myanga/1909 and allowed the respondent's counterclaim seeking a declaration that the appellant holds the parcel in trust for her. The appellant advanced five grounds, including that the trial magistrate disregarded her evidence of ownership, wrongly admitted quashed Land Disputes Tribunal proceedings, relied on extraneous evidence, and that no trust was proved. The respondent filed no submissions. The court restated the first-appeal principles from Selle v Associated Motor Boat Co. and Jabane v Olenja, then re-evaluated the record. It found the original parcel 291 was clan land given to the parties' father but registered in the appellant's name to hold in trust for the family including the respondent. The trial court's finding that the respondent did not sell her share to Miti Otuba Kibuyi was corroborated by the tribunal proceedings and DW2's evidence of the 1988 witnessed subdivision. The court agreed with the trial magistrate's analysis and dismissed the appeal. Because the parties are biological sisters, each party was ordered to bear her own costs of the appeal and the trial court.

Key legal issues

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01

Mandate of a first appellate court

Holding

The court is entitled to re-evaluate the evidence and draw its own conclusions subject to due allowance for not seeing witnesses

Reasoning

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.

p. 3
02

Whether the respondent sold her share of the land to Miti Otuba Kibuyi

Holding

The trial court's finding that the respondent did not sell the land was corroborated by tribunal proceedings and DW2's evidence

Reasoning

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.

p. 5
03

Whether a trust existed over parcel W. Bukusu/N. Myanga/1909

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed
  2. 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

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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, "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.