Gwanyemba & 4 others v Matanye & another (Environment and Land Case E003 of 2024) [2025] KEELC 4628 (KLR)
The bottom line
#The Environment and Land Court cancelled a buyer's title because ancestral family land sold without involving family members is protected by customary trust in Kenya.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not the suit land was ancestral land and whether the 1st Defendant held the land in trust for the plaintiffs
- 2.Whether or not the sale and transfer of the suit land by the 1st Defendant to the 2nd Defendant was fraudulent and irregular
- 3.Whether or not the Plaintiffs are entitled to the relief sought in the plaint
- 4.Whether or not the Defendant is entitled to the relief sought in the counterclaim
- 5.Costs of the suit
Key legal issues
#Whether the suit land was ancestral land held in trust for the Plaintiffs
The land was ancestral land inherited by the 1st Defendant from his father, and he held it in trust for the Plaintiffs
The land originally belonged to PW4, the 1st Defendant's father, who passed it to his son. All the Plaintiffs, PW4 and the grandmother live on the land. Following the Supreme Court's test in M'Inanga, the nature of the holding (for family benefit) and the intention of the parties gave rise to a presumed customary trust, which is an overriding interest under section 28 of the Land Registration Act.
Whether the sale and transfer to the 2nd Defendant was fraudulent
The sale and transfer were fraudulent
The land was subject to a customary trust in favour of the Plaintiffs; PW4, the registered owner at the time of the sale, was neither informed nor involved; the green card showed the land was still registered in PW4's name at the date of the sale agreement; the 1st Plaintiff disowned the signature on the agreement; and the 1st Defendant did not testify to explain the transaction.
Whether the 2nd Defendant was a bona fide purchaser for value without notice
The bona fide purchaser defence failed
The 2nd Defendant was a lifelong neighbour who knew the Plaintiffs had their homes on the land, and the green card showed the seller's father was still the registered owner at the date of the sale agreement, negating due diligence. Evicting the Plaintiffs would render them homeless, and the claim that they held many parcels was unproved.
Legal principles established
#- Ancestral land passed down within a family is held under an intergenerational customary trust in favour of family members, which is an overriding interest under section 28 of the Land Registration Act
- In determining the existence of a customary trust, what is important is the nature of the holding of the land and the intention of the parties
Court orders
#- 1.Title in respect of LR parcel number North Maragoli/Kisatiru/2215 in the name of Gideon Lumadede Muguheli be cancelled forthwith and the same be reverted to the name of Elam Ezavita Matanye to hold in trust for the Plaintiffs
- 2.An order of permanent injunction restraining the Defendants, their employees, servants or agents from interfering with the Plaintiffs' use and occupation of LR No. North Maragoli/Kisatiru/2215 and from destroying, cutting, demolishing or in any other manner dealing with the parcel
- 3.Each party to bear own costs of the suit and counterclaim
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (not expressly cited in the judgment)
Relief refused
#2nd Defendant's counterclaim for eviction of the Plaintiffs and demolition of structures on the suit land
The sale was in disregard of the customary trust; the 2nd Defendant knew the Plaintiffs lived on the land and eviction would render them homeless; he did not prove they had many parcels of land
Costs
Each party to bear own costs of the suit and counterclaim
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.
There is no doubt that the suit land is ancestral land having been passed down from the 1st defendant's father, it is expected that the 1st defendant could hold it and pass it down to the 2nd to 6th plaintiffs under the concept of intergenerational trust.
Under section 28 of the Land Registration Act customary trust is an overriding interest to which registered land is subject.
title in respect of LR parcel number North Maragoli/Kisatiru/2215 in the name of Gideon Lumadede Muguheli be cancelled forthwith and the same be reverted to the name of Elam Ezavita Matanye to hold in trust for the Plaintiffs.
Each party to bear own costs of the suit and counterclaim.
Issues in the judgment
#The judgment refers to a 6th Plaintiff in the reasoning although only five Plaintiffs are described in the introduction and the relief
Internal inconsistency on the year of the 1st Plaintiff's marriage - stated as 1996 in her witness statement but 1994 in cross-examination
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gwanyemba & 4 others v Matanye & another (Environment and Land Case E003 of 2024) [2025] KEELC 4628 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4628/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.