Mbihane v Adagala (Environment and Land Appeal E005 of 2023) [2024] KEELC 1793 (KLR)
The bottom line
#A Kenyan court dismissed a father's trespass claim against his late son's widow, confirming she may stay on the family land because he never objected or followed eviction procedures.
What this practically means
#Executive summary
#Key legal issues
#Whether a customary trust existed over the suit land in favour of the Respondent
Customary trust was neither pleaded in the Defence nor mentioned in the Respondent's evidence; it was first raised in submissions, and the trial court erred in holding it existed.
The court perused the pleadings and evidence and found customary trust was never pleaded or adduced in evidence, appearing only in the Respondent's written submissions before the trial court. Without pleading or proof of the elements of customary trust (ancestral/clan land, claimant's membership, relationship to the holding), the trial court's finding of a customary trust overriding the Appellant's title was erroneous, though this did not rescue the Appellant's suit.
Whether the Respondent was a trespasser on the suit land
The Appellant failed to prove trespass; the Respondent entered and remained on the land as the wife and widow of the Appellant's deceased son, with the Appellant's acquiescence, and thus lawfully.
Trespass requires unjustifiable interference with possession, and the burden of proof lay on the Appellant under sections 107 and 108 of the Evidence Act. The evidence showed the Respondent entered as the deceased son's wife/partner, bore a child with him, participated in his burial as widow and lived on the land for about six years before the suit. The Appellant never complained of her entry and did not state when she became a trespasser; nor did he serve an eviction notice under the Land Act.
Legal principles established
#- On a first appeal the court must reconsider and re-evaluate the evidence and reach its own independent conclusions
- The burden of proving the tort of trespass rests on the plaintiff under sections 107 and 108 of the Evidence Act on a balance of probabilities
- A party who enters and remains on land as a wife/widow of the registered owner's son, and who buries the deceased there and lives on the land for years, does not enter or remain without justifiable cause and is not a trespasser
- A customary trust cannot be founded on a matter neither pleaded nor proved, first raised only in written submissions
Court orders
#- 1.The appeal is hereby dismissed
- 2.Each party to bear its own costs of the appeal and the suit
- On appeal from
- Principal Magistrate's Court at Hamisi (Environment and Land Court)
- Hamisi PMC ELC No 20 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's decision in Hamisi PMC ELC No 20 of 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbihane v Adagala (Environment and Land Appeal E005 of 2023) [2024] KEELC 1793 (KLR)", Case Analysis (2024). Not stated in the judgment (appeal against judgment in Hamisi PMC ELC No 20 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1793/eng@2024-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.