Misiko & 3 others v Mukolongo (Environment and Land Appeal 18 of 2020) [2025] KEELC 1078 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Res judicata - whether the Appellants' suit was barred by Bungoma HCCC/ELC No. 5 of 2004
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.
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.
Whether the Appellants proved their claim of fraud and/or customary trust on a balance of probabilities
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.
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.
Legal principles established
#- 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
#- 1.Appeal allowed as prayed
- 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.No orders as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.