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ELCAllowedBungoma ELC Appeal (referred to as 'this appeal' from the trial suit in Bungoma; appeal number not printed in the extract)· [2025] KEELC 1078 (KLR)

Misiko & 3 others v Mukolongo (Environment and Land Appeal 18 of 2020) [2025] KEELC 1078 (KLR)

Environment and Land Court
6 March 2025
3,099 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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Kenya's Environment and Land Court in Bungoma ruled that a registered title does not defeat a customary family land trust.

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 Bungoma against a magistrate's judgment of 23/09/2020 dismissing the Appellants' suit as res judicata with no order as to costs. The Appellants, daughters of the late Isaac Mukongolo Kisaka by his second wife, had sued their step-brother, the Respondent, claiming 1 ½ acres out of land parcel Ndivisi/Mihuu/54 that their mother had occupied, asserting the Respondent fraudulently procured registration of the whole parcel. The Respondent claimed the land was gifted to him in 1994 and pleaded res judicata based on Bungoma HCCC No. 5 of 2004 between the Appellants' mother and himself. The trial magistrate upheld the res judicata plea. On appeal, the court held the suit was not res judicata: the former claimant (the mother) sued on her own behalf, not representatively, and sought injunctive and declaratory relief, unlike the present claim for a portion of the land. On the merits, although the Respondent is registered proprietor and holds a prima facie title under the Land Registration Act, the court found from uncontroverted family meeting minutes and the deceased's intention that he holds the land in a fiduciary capacity under African customary law, applying section 28 of the Land Registration Act and Supreme Court authority on customary trusts. Occupation was not necessary to prove such a trust. The appeal was allowed as prayed and the Appellants' claim upheld; there were no orders as to costs.

Key legal issues

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01

Res judicata - whether the Appellants' suit was barred by Bungoma HCCC/ELC No. 5 of 2004

Holding

The suit was NOT res judicata because the claimant in the former suit was Mary Mukongolo, the Appellants' mother, who sued on her own behalf and not representatively, and the causes of action and prayers differed.

Reasoning

Applying Section 7 of the Civil Procedure Act, the court compared the decree in the former suit with the subsequent suit. The former claimant sought injunctive and declaratory relief for her lifetime occupation; the Appellants seek 1 ½ acres registered in their names. The claimants are different, and the mother's interests did not extinguish the Appellants' interests.

p. 4
02

Whether the Appellants proved their claim of fraud and/or customary trust on a balance of probabilities

Holding

Fraud was not proved as such, but the court found a customary trust: the Respondent holds the suit land in a fiduciary capacity for himself and the Appellants under African customary law, notwithstanding his registration as proprietor.

Reasoning

The court relied on the 1998 family meeting minutes (uncontroverted) and the intention of Mukongolo Kisaka, applying the proviso to section 28 of the Registered Land Act and section 28 of the Land Registration Act, and the Supreme Court's elements of customary trust in Isack M'inanga Kiebia, holding that ancestral land is held under intergenerational equity even where registered in one person's name.

p. 6

Legal principles established

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  • A first appeal is by way of retrial and the first appellate court must re-evaluate, re-analyse and re-consider the evidence and draw its own conclusions, while making due allowance for not having seen the witnesses.
  • A claim based on customary trust need not be supported by proof of possession or occupation of the land.
  • A certificate of title is prima facie evidence of ownership but may be challenged on grounds of fraud or misrepresentation, or where acquired illegally, unprocedurally or through a corrupt scheme.
  • Where a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership; the proprietor must prove the legality of the acquisition.

Court orders

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  1. 1.Appeal allowed as prayed
  2. 2.Judgment dismissing the appellants' suit set aside in favour of the appellants' claim for 1 ½ acres out of land parcel no. Ndivisi/Mihuu/54 being upheld (the court found a customary trust in favour of the Appellants over the suit land)
  3. 3.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Land Registration ActSections 24, 25, 26, 28
  • Registered Land ActSection 28 (proviso)
  • Evidence ActSections 107, 109

Cases cited (6)

  • Gitobu Imanyara & 2 others v Attorney General
    [2016] eKLR
  • Munyu Maina v Hiram Gathiha Maina
    (2013) eKLR
  • Isack M'inanga Kiebia vs Isaaya Theuri M'lintari & another
    [2018] eKLR
  • Salesio M'Itonga Vs M'Ithara & 3 Others
    (2015) EKLR
  • George Mbiti Kiebia & another v Isaya Theuri M'lintari & another
    [2014] eKLR
  • Mbui Mukangu v Gerald Mutwiri Mbui
    [2004] eKLR
On appeal from
Magistrate's Court (trial court, Bungoma)
suit instituted by plaint dated 08/01/2021 (number not printed in the extract)
Jurisdiction invoked
First appeal from the Magistrate's Court to the Environment and Land 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, "Misiko & 3 others v Mukolongo (Environment and Land Appeal 18 of 2020) [2025] KEELC 1078 (KLR)", Case Analysis (2025). Bungoma ELC Appeal (referred to as 'this appeal' from the trial suit in Bungoma; appeal number not printed in the extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1078/eng@2025-03-06

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