Kimbio v Kimbio (Environment and Land Appeal E010 of 2024) (Environment and Land) [2025] KEELC 1368 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.What are the appropriate reliefs to grant herein
Key legal issues
#Whether the Respondent held the suit parcel in trust for the family
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.
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.
Burden of proof on the party alleging a trust
He who alleges must prove, under Section 107(1)(2) of the Evidence Act; the Appellant discharged that burden.
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.
Non-joinder of the other siblings as parties
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.
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.
Appropriate reliefs
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.
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.
Legal principles established
#- 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
#- 1.The Respondent's suit before the lower court is hereby dismissed
- 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.Each party to bear own costs of the appeal and costs before the lower court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#Costs to the appellant
The dispute involves family members, so each party was directed to bear own costs
Costs
Each party to bear own costs of the appeal and costs before the lower court
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.
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.
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.
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.
Each party to bear own costs of the appeal and costs before the lower court.
Issues in the judgment
#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.
The judgment states the parties' case as the Respondent having 'proved her case' although the Respondent is male.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.