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ELCPartially AllowedHamisi PMCC ELA No. E025 of 2021 (Appeal)· [2024] KEELC 4939 (KLR)

Khavere v Kavuludi & 3 others; Kisia (Interested Party) (Environment and Land Appeal 12 of 2022) [2024] KEELC 4939 (KLR)

Environment and Land Court
13 June 2024
EAE. Asati
3,545 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court in Vihiga ruled that family members claiming land through customary trust must provide solid proof — inconsistent witness testimony is not enough.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Vihiga against the judgment of the Hamisi Principal Magistrate's court dated 17th October 2022, which allowed the Respondents' claim founded on customary trust over land parcel Tiriki/Senende/106, cancelling the sub-division into parcels 110, 111 and 112 and revoking the Appellant's title to parcel 111. The Appellant, the registered proprietor's daughter, contended she had been gifted parcel 111 in reward for educating her siblings and caring for her father. E. Asati, J., restating the duty of a first appellate court to re-examine the evidence under section 78 of the Civil Procedure Act, framed the sole issue as whether the trial court erred in finding a customary trust proved. Applying the Supreme Court's elements of customary trust in the Kieba case, the court found the first evidence of ownership showed the 1st Interested Party as first registered owner, with no evidence the land belonged to his father; the evidence about Magdalena's occupation was inconsistent and insufficient; and PW4 did not know how the land was acquired. It held that no sufficient evidence established the elements of customary trust and no grounds justified cancelling the Appellant's title. The court allowed the appeal, set aside the trial judgment, dismissed the Respondents' suit, and, although costs normally follow the event, directed each party to bear their own costs given that the parties are close family members.

Key legal issues

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01

Whether a customary trust was proved over land parcel Tiriki/Senende/106

Holding

No sufficient evidence was adduced to prove the elements of customary trust; the first evidence of ownership showed the land belonged to the 1st Interested Party, with no evidence it ever belonged to his father

Reasoning

The court applied the Supreme Court's elements of customary trust from the Kieba case and found the claimants' evidence internally inconsistent: PW2 said Magdalena was the 1st Interested Party's step-mother while PW3 said she was his mother; PW1 said nothing about her; and PW4 did not know how the land was acquired. The 1st registered owner testified he bought the land in 1948 and did not inherit it, so the ancestral-land claim failed on the evidence.

p. 7
02

Whether the trial court's judgment cancelling the Appellant's title should stand

Holding

The trial court erred in finding a trust was established and in cancelling the Appellant's title; the judgment was set aside and the Respondents' suit dismissed

Reasoning

Since customary trust was not proved, the substratum of the claim failed, and no sufficient grounds were shown for cancelling the Appellant's title (which rested on a gift from her father). The first appellate court therefore intervened, setting aside the trial judgment and substituting an order of dismissal.

p. 7

Legal principles established

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  • The burden of proving the existence of a customary trust lies on the party relying on it
  • A first appellate court must re-examine and analyse the evidence before the trial court and reach its own independent conclusion
  • Ancestral land is land passed from one generation to the next so that the current holder holds it in trust for the next generation

Court orders

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  1. 1.The judgment of the trial court dated 17/10/2022 is set aside and substituted with a judgment dismissing the Respondents' suit in the lower court
  2. 2.Each party to bear own costs of the appeal

Authorities

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Legislation

  • Evidence Actsections 107, 108 and 109
  • Civil Procedure Actsection 78
  • Civil Procedure Actsection 27

Cases cited (6)

  • Susan Mumbi Waititu –vs- Mukuru Ndata & 4 Others (19 of 2007) eKLR
    (19 of 2007) eKLR
  • Bia –vs- Jam & Another [2019] eKLR
    [2019] eKLR
  • Isaac M'nanga Kieba –vs- Isaya Theuri M'linturi and Another (2018) eKLR
    (2018) eKLR
  • Ngugi Kamau and Another (Environment and Land case no 36 of 2020) [2022] KEELC 2261 (KLR)
    [2022] KEELC 2261 (KLR)
  • Juletabi African Adventure Limited and Another vs Christopher Michael Lockley [2017] eKLR
    [2017] eKLR
  • Selle & another vs Associated Motor Boat Company Ltd & Another (1968) IEA 123
    (1968) IEA 123
On appeal from
Principal Magistrate's Court, Hamisi
Hamisi PMC EL Case No. E025 of 2021
Jurisdiction invoked
First appeal under section 78 of the Civil Procedure Act

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, "Khavere v Kavuludi & 3 others; Kisia (Interested Party) (Environment and Land Appeal 12 of 2022) [2024] KEELC 4939 (KLR)", Case Analysis (2024). Hamisi PMCC ELA No. E025 of 2021 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4939/eng@2024-06-13

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