Kinyanjui & another v Mbiyu (Environment and Land Case E009 of 2023) [2025] KEELC 5231 (KLR)
The bottom line
#A Kenyan court ruled that decades of unchallenged family occupation and burials proved a customary trust, entitling the plaintiffs to half the registered land.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs proved a customary trust over LR Loc.5/Githunguri/22
Proved. The plaintiffs and their parents occupied the land all their lives, were never evicted, and their parents and sister were buried there; the land originally belonged to the parties' grandfather.
The court found uncontroverted evidence of lifelong occupation without eviction attempts and of family burials on the land. Had there been no trust, the plaintiffs' father would have been resisted at entry. The land having belonged to the parties' grandfather made the trust more probable. The register showed the land remained the same size since 1962, discrediting the claim that the defendant's father bought additional land.
Whether the plaintiffs have a legal claim on the suit land
Yes, both as persons in actual occupation (overriding interest under Section 30(g) of the Registered Land Act) and as beneficiaries of a customary trust as grandchildren of the original owner.
Relying on the Supreme Court decision in Isack M'Inanga Kiebia v Isaya Theuri M'Lintari, the court held that rights of persons in possession or actual occupation are customary rights recognised as overriding interests, and that a customary trust falls within the proviso to Section 28, so occupation is not a necessary condition of the trust claim.
Whether the plaintiffs' father inherited land within Gitura Scheme
Not proved by the defendant.
None of the defendant's witnesses could prove inheritance of land within Gitura Scheme; there was no copy of register, title deed or any other tangible evidence supporting that allegation.
Whether the plaintiffs leased or rented the suit land
Not proved.
The only evidence of leasing was handwritten photocopies of receipts compiled by a person never called as a witness, not backed by any executed agreement; they had no probative value.
Whether the plaintiffs were trespassers
No; having proved entitlement to half the suit land through customary trust, they cannot be trespassers on land belonging to their father.
Since the trust claim succeeded, the plaintiffs' occupation of their portion was lawful, defeating the counterclaim for injunction, eviction and trespass relief.
Legal principles established
#- A customary trust is an overriding interest over registered land within the meaning of Section 28(b) of the Land Registration Act and need not be noted on the register
- Long unchallenged occupation of land and burials thereon without any attempt at eviction are sufficient to prove a customary trust
Court orders
#- 1.That the Defendant transfers half of the suit land, on the portion that the Plaintiffs occupy, to the Plaintiffs
- 2.That in default, the Deputy Registrar to execute all the necessary instruments to effect the subdivision and transfer of the said half of the suit land to the Plaintiffs
- 3.The Defendant's counterclaim is dismissed
- 4.Each party to bear its own costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction (following Thika Succession Cause No. 484 of 2015 directing the claim to be filed in the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinyanjui & another v Mbiyu (Environment and Land Case E009 of 2023) [2025] KEELC 5231 (KLR)", Case Analysis (2025). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5231/eng@2025-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.