Kabue & another v Kibue (Environment and Land Appeal E042 of 2024) [2025] KEELC 2978 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a customary trust over the suit property was proved despite the respondents' registration
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
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.
Whether the magistrate erred by determining unpleaded issues and granting orders not sought
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
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.
Legal principles established
#- 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customary trust survives first registration and binds the registered proprietor under the proviso to section 28 of the (repealed) Registered Land Act and section 28 of the Land Registration Act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
#- 1.The appeal is allowed
- 2.The judgment delivered by Hon K. Kibellion on 17th July 2024 is set aside
- 3.Declaration that the respondent holds the suit property in trust for the appellants' late mother
- 4.The suit property to be shared into two equal shares with a burial site preserved
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.