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ELCPartially AllowedNot stated in the judgment (Memorandum of Appeal dated 2nd July 2024)

Kimbio v Kimbio (Environment and Land Appeal E010 of 2024) (Environment and Land) [2025] KEELC 1368 (KLR)

High Court of Kenya (Environment and Land Division, Voi)
20 March 2025
3,806 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's High Court ruled that a registered title holder can still hold family land in trust for siblings, so a title deed alone does not guarantee absolute ownership.

What this practically means

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Executive summary

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This is a first appeal to the High Court at Voi against a judgment of the Principal Magistrate delivered on 19th June 2024, in a dispute between two brothers over parcel Voi/Ndara 'A'/4389 measuring 21.23 Ha. The Respondent had sued as absolute, legal and beneficial owner, alleging the Appellant unlawfully lodged a caution blocking a sale of 12 acres; the trial court declared him absolute owner, ordered removal of the caution, issued a permanent injunction and awarded him costs. The Appellant had counterclaimed that the parcel was family land held in trust for siblings. E. K. Wabwoto J, as the first appellate court, re-evaluated the evidence guided by Selle v Associated Motor Boat Co Ltd and Jabane v Olenja. Applying the Supreme Court's test in Isack M'inanga Kiebia v Isaaya Theuri M'lintari, the court found the elements of a customary trust proven: the land was family land given by the parties' late father to four brothers, the Respondent acquired it by demarcation in 2018 without purchase, and he called no family witness to rebut the Appellant's evidence, including that of the elder brother Thomas Wandeto Kimbio. The court also faulted the magistrate for relying on non-joinder of the siblings contrary to Order 1 rule 9 of the Civil Procedure Rules. The appeal was allowed, the trial judgment set aside, the Respondent's suit dismissed, and a declaration issued that the parcel is family land held in trust by the Respondent for his siblings and beneficiaries. As the dispute involves family members, each party was ordered to bear own costs of the appeal and the lower court.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suit parcel known as Voi/Ndara 'A'/4389 registered in the names of the Respondent was held in trust for the family or whether the Respondent was indeed the absolute owner
  2. 2.What are the appropriate reliefs to grant herein

Key legal issues

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01

Whether the Respondent held the suit parcel in trust for the family

Holding

The appeal succeeded; the court found that a trust subsists on the suit land in favour of the family and that the Respondent is not the absolute owner.

Reasoning

The court applied the Supreme Court's elements of customary trust in Isack M'inanga Kiebia v Isaaya Theuri M'lintari. Evidence showed the parties are siblings, the land was family land given by their late father to four brothers, and the Respondent acquired the parcel by demarcation in 2018 and title in 2019 without purchasing it. The Respondent called no family member to controvert the Appellant's and DW2's testimony. On a balance of probabilities the trust was proven.

p. 7
02

Burden of proof on the party alleging a trust

Holding

He who alleges must prove, under Section 107(1)(2) of the Evidence Act; the Appellant discharged that burden.

Reasoning

The court restated Section 107(1)(2) of the Evidence Act as the applicable standard, then examined the root of the suit land. It noted the Respondent did not purchase the property, that family land was registered in his name, and that he failed to call other family members to rebut the evidence, so the Appellant proved the trust on a balance of probabilities.

p. 5
03

Non-joinder of the other siblings as parties

Holding

The trial magistrate erred in holding against the Appellant on the ground that other siblings were not joined; Order 1 rule 9 of the Civil Procedure Rules defeats no suit for non-joinder.

Reasoning

The court found the magistrate erred by addressing the non-joinder issue, which was not pleaded, and by disregarding the testimony of the Appellant's witness Thomas Wandeto Kimbio, the siblings' elder brother. Order 1 rule 9 provides that a suit is not defeated by misjoinder or non-joinder because the court may deal with the matter as regards parties actually before it.

p. 8
04

Appropriate reliefs

Holding

The Appellant's counterclaim relief was granted: a declaration that the parcel is family land held in trust by the Respondent for siblings and beneficiaries, and the Respondent's suit was dismissed.

Reasoning

Having found the trust established, the court held the appeal merited and granted the relief sought in the Appellant's counterclaim before the trial court, setting aside the trial judgment and substituting it with dismissal of the Respondent's suit and the declaration of trust.

p. 8

Legal principles established

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  • Registration of a person as proprietor of land does not preclude him from holding an interest in trust for another; trusts, including customary trusts, are overriding interests that run with the land.
  • The first appellate court must re-evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses.
  • A suit shall not be defeated by misjoinder or non-joinder of parties, as the court may deal with the matter so far as regards the parties actually before it.

Court orders

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  1. 1.The Respondent's suit before the lower court is hereby dismissed
  2. 2.A declaration that the suit property, Voi/Ndara 'A'/4389, is family land and the Respondent held the same in trust of other siblings and beneficiaries
  3. 3.Each party to bear own costs of the appeal and costs before the lower court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Principal Magistrate's Court, Voi
Not stated
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (appeal from the Principal Magistrate's Court; this being the first appeal)

Relief refused

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Costs to the appellant

The dispute involves family members, so each party was directed to bear own costs

p. 8

Costs

Each party to bear own costs of the appeal and costs before the lower court

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion, the appellant’s appeal succeeds and the judgment of the lower court is hereby set aside and substituted with the following orders; i. The Respondent’s suit before the lower court is hereby dismissed. ii. A declaration be and is hereby issued that the suit property, Voi/Ndara ‘A’/4389 is family land and the Respondent held the same in trust of other siblings and beneficiaries.
p. 8Final orders - appeal allowed, trial judgment set aside
It therefore follows that registration of a person as a proprietor of land does not preclude him from holding an interest in trust for another. Trust is an encumbrance on land. These are non-registrable rights which run with the land. They are overriding.
p. 7Trusts as overriding interests against registered title
From the analysis of the evidence that was tendered, it was evident that the Respondent did not purchase the suit property but acquired the same after demarcation in the year 2018 and title issued in the year 2019.
p. 7Root of title - family land acquired by demarcation
Each party to bear own costs of the appeal and costs before the lower court.
p. 8Costs order

Issues in the judgment

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minor

Internal inconsistency in the suit parcel number: the plaint and orders refer to Voi/Ndara 'A'/4389, but the first ground of appeal refers to Voi/Ndara A/439.

minor

The judgment states the parties' case as the Respondent having 'proved her case' although the Respondent is male.

minor

The trial court orders reference the '2nd Defendant' (the Land Registrar) being compelled to remove the caution, although the dispute described involves only the two brothers as Appellant and Respondent.

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, "Kimbio v Kimbio (Environment and Land Appeal E010 of 2024)  (Environment and Land) [2025] KEELC 1368 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Appeal dated 2nd July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1368/eng@2025-03-20

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