Matayo v Namunani (Environment and Land Appeal 25 of 2023) [2024] KEELC 6822 (KLR)
The bottom line
#A Bungoma court confirmed that land registration doesn't override customary family trust, so ancestral land can be transferred to the family member occupying it.
What this practically means
#Executive summary
#Key legal issues
#Whether customary trust subsists over land parcel N. Malakasi/S. Wamono/715 in favour of the Respondent
The trial court's finding of customary trust was upheld; the Respondent proved the land was ancestral family land registered in the Appellant's father's name in trust, and the Respondent has been in possession, farming and constructing thereon
The court re-evaluated the evidence. The Respondent and his witness traced the land to the parties' common grandfather Naibei Kipkani, while the Appellant's claim of purchase rested on hearsay from his late father with no documentary support. Possession and occupation are key elements of customary trust, and the Respondent had been in actual use to the exclusion of the Appellant. Weighing the evidence on a balance of probabilities, the finding of customary trust stood.
Burden of proof on each party's respective claim
Both parties bore the burden of proving their claims; the Appellant failed to discharge his burden, and the Respondent discharged his
The court invoked Sections 107, 108 and 109 of the Evidence Act, which place the burden on the person asserting facts and on the party who would fail if no evidence were given. The Appellant's case was hearsay unsupported by documents, whereas the Respondent's oral evidence on ancestral ownership, the distribution of titles and long occupation was probable and believable.
How to effect transfer given the Appellant's limited grant ad litem
Although the Appellant's limited grant means he cannot execute the transfer, the Deputy Registrar was ordered to execute the transfer documents so the Respondent can enjoy the fruits of the judgment
The court acknowledged that the Appellant holds letters of administration ad litem limited to filing the suit and is not the appropriate party to execute transfer documents. However, since orders should not issue in vain and the Appellant was unlikely to take out full administration voluntarily, the Deputy Registrar was directed to execute the documents in the interest of justice.
Legal principles established
#- Registration of a person as proprietor of land does not preclude him from holding it in trust for another; customary trust is an overriding, non-registrable interest
- On a first appeal the court must re-evaluate the evidence afresh while bearing in mind that the trial court saw and heard the witnesses
- Court orders should not issue in vain; a successful litigant must enjoy the fruits of judgment, justifying an order that the Deputy Registrar execute transfer documents
Court orders
#- 1.The Appellant's appeal is dismissed
- 2.The Deputy Registrar shall execute the transfer documents to ensure registration of the suit land in favour of the Respondent
- 3.Each party to bear their own costs
- On appeal from
- Bungoma Chief Magistrate's Court (Principal Magistrate Hon. T.M. Olando)
- CM-ELC Case No. E003 of 2020
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over the magistrate's court (first appeal by way of rehearing); court exercised its power to order the Deputy Registrar to execute transfer documents in the interest of justice
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matayo v Namunani (Environment and Land Appeal 25 of 2023) [2024] KEELC 6822 (KLR)", Case Analysis (2024). ELC Appeal from Bungoma CM-ELC Case No. E003 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6822/eng@2024-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.