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ELCPartially AllowedNot stated in the judgment text (Kisumu ELC suit filed 8th December 2021)

Osano & 10 others v Osano alias Peter Ouma Osano & 2 others (Environment and Land Case E049 of 2021) [2025] KEELC 4851 (KLR)

Environment and Land Court of Kenya
26 June 2025
10,575 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kisumu dismissed a family's claim that two parcels were held in customary trust, and ordered removal of cautions on the titles.

What this practically means

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Executive summary

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The eleven Plaintiffs, the widow and children of Johannes Osano Wariero (deceased), sued the 1st and 2nd Defendants (his sons by his first wife) and the Land Registrar (3rd Defendant) claiming that two parcels, Kisumu/Kanyakwar 'B'/134 and /135, were owned by the deceased and registered in the Defendants' names irregularly, and that the 1st Defendant held them in customary trust for the family. They sought an equal division of the properties and a permanent injunction. The 1st Defendant denied the trust, asserted that he bought the properties in 1974 and had them adjudicated in his and his brother's names, and counterclaimed for removal of the Plaintiffs' cautions and an injunction. The court framed five issues and applied the Supreme Court's customary-trust test in Isack M'inanga Kiebia v Isaaya Theuri M'lintari together with the proviso to section 28 of the (repealed) Registered Land Act. It found that the properties were not family or ancestral land, that the deceased - who was alive during adjudication and registered Plot No. 163 in his own name - could have registered the suit properties for himself had they been his, and that the 1st Defendant had demonstrated capacity to purchase them. No evidence supported the alleged fraud or alteration of adjudication records. The Plaintiffs' suit was dismissed. The counterclaim succeeded only in part: the cautions were ordered removed, but the injunction was refused for want of evidence of trespass, and the 3rd Plaintiff could not be barred from her parents' home. Considering that all parties were family with a genuine dispute, the court ordered each party to bear its own costs. Judgment delivered by S. Okong'o, J on 26th June 2025.

Questions the Court framed

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

  1. 1.Whether the 1st and 2nd Defendants held the suit properties in trust for the Plaintiffs
  2. 2.Whether the suit properties were registered in the names of the 1st and 2nd Defendants irregularly and illegally
  3. 3.Whether the Plaintiffs are entitled to the reliefs sought in the plaint
  4. 4.Whether the 1st Defendant is entitled to the reliefs sought in the counterclaim
  5. 5.Who is liable for the costs of this suit

Key legal issues

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01

Whether the 1st and 2nd Defendants held the suit properties in trust for the Plaintiffs under a customary trust

Holding

No customary trust was proved. The properties were purchased by the 1st Defendant and were not family or ancestral land of the deceased

Reasoning

Applying the Isack M'inanga Kiebia elements, the court found no evidence that the suit properties were family or clan land before registration. The deceased was alive during adjudication, assisted the adjudication officer, and could have registered the land in his own name had it belonged to him; instead he settled his second family on Plot No. 163 registered in his own name. The 1st Defendant showed he was a businessman capable of purchasing the properties. No trust was therefore implied or proved.

02

Whether the suit properties were registered irregularly and illegally, including alleged fraud against the 3rd Defendant

Holding

No fraud or irregularity was proved; the claim of collusive alteration of adjudication records was unsupported by evidence

Reasoning

Fraud must be pleaded and proved; the Plaintiffs alleged that the adjudication records were altered in collusion with the 3rd Defendant, but placed no evidence before the court to support that allegation. The adjudication records produced by the 1st Defendant showed the parcels were first registered in the names of the 1st and 2nd Defendants, and no objection was raised at the time.

p. 17
03

Whether the 1st Defendant's counterclaim succeeds

Holding

The counterclaim succeeded only in part: removal of the cautions was granted, but the injunction was refused for lack of evidence of interference

Reasoning

The court found no justification for the cautions registered by the Plaintiffs over the titles and ordered their removal. However, there was no evidence of trespass or interference by the Plaintiffs, and the 3rd Plaintiff could not be restrained from visiting her parents' home which remains on Plot No. 134, so the injunction was declined.

p. 17

Legal principles established

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  • A customary trust, if proved, is one of the trusts to which a registered proprietor is subject under the proviso to Section 28 of the Registered Land Act
  • Not every claim of a right to land qualifies as a customary trust; the claimant must establish the elements set out by the Supreme Court
  • The legal burden of proof lies with the party who desires the court to give judgment as to a legal right or liability

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.The 1st Defendant's counterclaim is allowed in terms of prayer [a] of the defence and counterclaim dated 1st February 2022; the 3rd Defendant shall remove forthwith the cautions registered against land parcels Kisumu/Kanyakwar "B"/134 and Kisumu/Kanyakwar "B"/135 at the instance of the Plaintiffs
  3. 3.Each party shall bear its costs of the suit and the counterclaim

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to ownership, registration and trust over land (Article 162(2) of the Constitution is implicit; not expressly cited)

Relief refused

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Plaintiffs' prayer for division of the suit properties into equal shares and permanent injunction

Plaintiffs failed to prove a customary trust or irregular/illegal registration

p. 17

1st Defendant's prayer for permanent injunction against the Plaintiffs

No evidence that the Plaintiffs trespassed on or interfered with the suit properties; the 3rd Plaintiff cannot be restrained from going to her parents' home

p. 17

Costs

Each party shall bear its costs of the suit and the counterclaim

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.

1. The Plaintifis' suit is dismissed.
p. 18Final orders - dismissal of the suit
2. The 1st Defendant's counterclaim is allowed in terms of prayer [a] of the defence and counterclaim dated 1st February 2021. For the avoidance of doubt, the 3rd Defendant shall remove forthwith the cautions registered against land parcels Kisumu/Kanyakwar "B"/134 and Kisumu/Kanyakwar "B"/135 at the instance of the Plaintifis.
p. 18Final orders - removal of cautions
3. Each party shall bear its costs of the suit and the counterclaim.
p. 18Final orders - costs
Due to the foregoing, it is my finding that the Plaintifis have failed to prove that the 1st and 2nd Defendants held the suit properties in trust for them and that the properties were irregularly and illegally registered in the names of the 1st and 2nd Defendants.
p. 17Failure to prove customary trust and irregular registration
The land in question was before registration, family, clan or group land.
p. 15Elements of customary trust
The court will not imply a trust save in order to give efiect to the intention of the parties.
p. 16Trust not lightly implied

Issues in the judgment

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minor

The counterclaim date is inconsistent: the pleading is introduced as dated 1st February 2022 but the final orders refer to a defence and counterclaim dated 1st February 2021

minor

The case number of the suit is not stated anywhere in the judgment

minor

PW1 gave contradictory evidence on compensation: that his father was not compensated, yet elsewhere that compensation money was used to buy Plot No. 135

minor

PW3 gave contradictory evidence: that the family was moved out after compulsory acquisition in 1978, yet also that the suit properties were ancestral land and her father did not purchase them

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, "Osano & 10 others v Osano alias Peter Ouma Osano & 2 others (Environment and Land Case E049 of 2021) [2025] KEELC 4851 (KLR)", Case Analysis (2025). Not stated in the judgment text (Kisumu ELC suit filed 8th December 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4851/eng@2025-06-26

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