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ELCPartially AllowedELC Appeal (Nakuru) arising from CMELC E160 of 2021· [2025] KEELC 2978 (KLR)

Kabue & another v Kibue (Environment and Land Appeal E042 of 2024) [2025] KEELC 2978 (KLR)

Environment and Land Court
28 March 2025
5,405 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a title deed does not defeat family customary land rights—the land must now be shared equally, with the family burial site preserved.

What this practically means

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Executive summary

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The appellants, administrators of the estate of Esther Wangari Kabue (first wife of the late Godfrey Kibue Gathuo), appealed against a judgment of Hon K. Kibellion in Nakuru CMELC E160 of 2021 dismissing their claim that Jane Nguhi Kibue (second wife) held Bahati/Kabatini Block 1/1644 in trust for their mother. The magistrate had found no trust, holding that registration conferred absolute title, and granted unclaimed orders setting aside a family burial site with lifetime licences. On appeal, Ombwayo J restated the first appellate duty and traced the jurisprudence on customary trusts: the High Court's decisions in Obiero and Esiroyo, which held that registration extinguished customary rights, were declared by the Supreme Court in Isack M'Inanga Kebia to rest on faulty conceptual and contextual premises; a proved customary trust binds a registered proprietor under the proviso to section 28 of the repealed Registered Land Act and section 28 of the Land Registration Act, and possession is not a prerequisite. The court found the land was family land used as a burial ground for both houses, and family meetings had agreed to share it equally, establishing a customary trust. The magistrate erred in addressing unpleaded adverse possession issues and granting orders nobody sought. The appeal was allowed, the lower court judgment set aside, a trust declared, equal sharing with a preserved burial site ordered, and each party ordered to bear own costs.

Key legal issues

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01

Whether a customary trust over the suit property was proved despite the respondents' registration

Holding

Yes - the property was family land used as a burial ground for both houses and family meetings had agreed to subdivide it between the two wives, constituting a customary trust binding the respondent

Reasoning

Applying the Supreme Court's decision in Isack M'Inanga Kebia, the court held that registration does not extinguish proved customary rights. The land was used as a family burial site for the whole family of the deceased, and family meetings resolved that it be shared equally between the two wives. The appellants' lack of possession did not defeat their claim; the respondent's registration was subject to the customary trust.

p. 8
02

Whether the magistrate erred by determining unpleaded issues and granting orders not sought

Holding

Yes - the magistrate delved into adverse possession, which was not pleaded, and granted relief (setting aside a burial site and granting lifetime licences) that no party sought

Reasoning

The magistrate heavily relied on Mbiu v Muraya on adverse possession and made findings on occupation and registration that were not placed before him. He also ordered setting aside of a family burial site and lifetime licences to the site, orders neither party sought, requiring the appellate court's interference.

p. 8

Legal principles established

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  • A proved customary trust survives first registration and binds the registered proprietor under the proviso to section 28 of the (repealed) Registered Land Act and section 28 of the Land Registration Act
  • Actual physical possession or occupation is not a prerequisite to proving a customary trust

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment delivered by Hon K. Kibellion on 17th July 2024 is set aside
  3. 3.Declaration that the respondent holds the suit property in trust for the appellants' late mother
  4. 4.The suit property to be shared into two equal shares with a burial site preserved
  5. 5.Each party to bear own costs
On appeal from
Magistrates Court Nakuru
CMELC E160 of 2021
Jurisdiction invoked
First appeal to the Environment and Land Court from the Magistrates' 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, "Kabue & another v Kibue (Environment and Land Appeal E042 of 2024) [2025] KEELC 2978 (KLR)", Case Analysis (2025). ELC Appeal (Nakuru) arising from CMELC E160 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2978/eng@2025-03-28

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