Teskin & 4 others v Makokha & 2 others (Environment & Land Case E006 of 2022) [2025] KEELC 951 (KLR)
The bottom line
#A Bungoma court dismissed a family land claim, ruling that land validly sold by parents under written agreements is no longer ancestral land.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiffs have made a case for existence of a trust over the suit land
- 2.Whether the 2nd defendant made a case for his counter-claim
- 3.Who bears the costs
Key legal issues
#Whether a customary trust existed over the suit land
No. Although the original parcel devolved from father to son and was intended as family land, the plaintiffs' parents validly sold portions under written sale agreements, so the land ceased to be ancestral; further, the plaintiffs did not challenge the sale agreements or seek revocation of the grant
The court applied the Supreme Court's elements of customary trust in Kiebia v M'Lintari and found that while the original parcel was family land devolving inter-generationally, the plaintiffs' own family members sold the land under valid written agreements complying with the repealed section 3 of the Law of Contract Act. The plaintiffs never contested those agreements, and instead of revoking the grant they claimed was fraudulent, they sought to collaterally attack it, which would amount to sitting on appeal over the succession court.
Whether the 2nd defendant's counter-claim succeeds
Yes in part: the plaintiffs were declared trespassers, ordered to vacate within 6 months, permanently restrained, and to pay Kshs.20,000 general damages; mesne profits were refused for want of proof
Relying on sections 24, 25(1) and 26 of the Land Registration Act, the court found the 2nd defendant's certificate of title unchallenged, making him absolute proprietor. The plaintiffs, who admitted living on the land, were trespassers. Although an eviction order under section 152E of the Land Act required proof of service of notices to vacate, the court used its inherent discretion to grant a vacation period. General damages for trespass (actionable per se) were awarded at a minimal sum, but mesne profits failed for want of substantiation.
Legal principles established
#- A customary trust must be proved by evidence and is never implied by the court absent a clear intention to create a trust
- Where land claimed as ancestral has been validly sold by family members under written agreements complying with the repealed section 3 of the Law of Contract Act, it ceases to be ancestral land
- A party alleging fraudulent issuance of a grant must first seek revocation of that grant under section 76 of the Law of Succession Act before seeking declarations over the resultant parcels
- Mesne profits must be substantiated with material demonstrating how the amount claimed was arrived at
- Trespass to land is actionable per se and damages may be awarded without proof of specific damage
Court orders
#- 1.The plaintiffs' case against the defendants is dismissed
- 2.A declaration that the plaintiffs are trespassers on L.R No. N.Malakasi/E.Sasuri/796
- 3.The plaintiffs shall vacate L.R No. N.Malakasi/E.Sasuri/796 within 6 months, failing which the 2nd defendant may apply for an eviction order
- 4.A permanent injunction restraining the plaintiffs, their agents, servants, assignees or any other person acting through them from encroaching on N.Malakasi/E.Sasuri/796
- 5.The plaintiffs to pay the 2nd Defendant general damages in the sum of Kshs.20,000
- 6.The plaintiffs shall bear the costs of the suit and the 2nd defendant's counter-claim
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land and environment disputes) - not expressly stated in the judgment
Relief refused
#Declaration that the defendants hold the suit parcels in trust for the plaintiffs and their families and eviction of the defendants
The plaintiffs failed to prove a customary trust; the land had been validly sold by the plaintiffs' parents under written sale agreements, ceasing to be ancestral land, and the grant relied on by the defendants was never revoked
Mesne profits claimed by the 2nd defendant
No evidence was furnished on the extent of encroachment or the loss suffered; the burden of proof was not discharged
Costs
The plaintiffs shall bear the costs of the suit and the 2nd defendant's counter-claim
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The plaintifis' case against the defendants is hereby dismissed.
A declaration is hereby issued that the plaintifis are trespasser on the 2nd defendants parcel of land known as L.R No. N.Malakasi/E.Sasuri/796.
The plaintifis shall vacate L.R No. N.Malakasi/E.Sasuri/796 within 6 months from the date hereof failure which they 2nd defendant may apply for an eviction order.
The plaintifis shall bear the costs of the suit and the 2nd defendants counter-claim.
registration of a person as a proprietor of land does not relief him of his duty as a trustee. A customary trust is a non -registrable right(s) which runs with the land and is considered to be an encumbrance on land.
The said family land having been sold by the plaintifis' parents, therefore ceased being ancestral land.
they ought to have sought to revoke the grant before coming to this court.
Issues in the judgment
#Internal contradiction on the period within which the plaintiffs must vacate: the body of the judgment grants ninety (90) days while the final orders grant six months
The case number of the suit is not stated anywhere in the judgment
Gender inconsistency regarding the 2nd defendant: Chepkurkat Alice Chesebe is substituted for the deceased Ben Mgotuny Chesebe but is referred to as 'his'/'he' in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teskin & 4 others v Makokha & 2 others (Environment & Land Case E006 of 2022) [2025] KEELC 951 (KLR)", Case Analysis (2025). Not stated in judgment (Plaint dated 26/03/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/951/eng@2025-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.