Bunusei & 2 others v Tomas (Environment and Land Appeal E023 of 2023) [2025] KEELC 5288 (KLR)
The bottom line
#A Kenyan court dismissed a family land dispute because the claimants could not prove a customary trust or certify their key document.
What this practically means
#Executive summary
#Key legal issues
#Existence of a customary trust over LR No. Elgon/Namorio/2614
No customary trust was established; the requisite elements from the M'inanga Kieba guidelines were not satisfied
Applying the Supreme Court's five elements in M'inanga Kieba, the court found the Appellants' evidence contradictory: they claimed occupation but conceded the only homestead on the suit land belongs to their mother and admitted purchasing and settling on separate parcels elsewhere. DW2 denied the Appellants' father was entitled to any share. Without evidence of an express or implied intention to confer proprietary rights, the trust inference fails.
Evidential weight of the uncertified letter of consent (P-Exhibit 1)
The uncertified copy of the Land Control Board consent significantly weakened the Appellants' case and undermined their discharge of the burden of proof
The Appellants relied on a letter of consent indicating Simeon Chemlany was to transfer the suit land to the 1st Appellant, but DW2 denied signing any transfer in their favour. Under sections 38 and 80 of the Evidence Act, certified copies of public documents are admissible only if signed, sealed and certified by an authorised officer. The Appellants failed to produce a certified copy or call the maker, failing to discharge the burden on a balance of probabilities.
Costs despite dismissal
The trial court's costs order was varied; each party to bear their own costs due to the close family relationship
Section 27 of the Civil Procedure Act provides that costs follow the event unless the court for good reason decides otherwise. Given that the Appellants and Respondent are close relatives (step-brothers sharing a biological mother), the court exercised its discretion to depart from the ordinary rule and ordered each party to bear their own costs both here and below.
Legal principles established
#- On a first appeal, the court must re-analyse and re-assess the evidence and reach its own independent conclusion, while making allowance for not having seen or heard the witnesses
- A claim of customary trust must satisfy the elements set out in Isack Kieba M'inanga v Isaaya Theuri M'Lintari, determined on the merits and quality of evidence
- In the absence of intention, express or implied, to confer proprietary rights, an inference of customary trust cannot be sustained
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear their own costs, both of the appeal and before the trial court
- On appeal from
- Kimilili Principal Magistrate's Court (PM-ELC)
- E006 of 2023
- Jurisdiction invoked
- First appeal under Section 78 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bunusei & 2 others v Tomas (Environment and Land Appeal E023 of 2023) [2025] KEELC 5288 (KLR)", Case Analysis (2025). Bungoma ELC Appeal (from Kimilili PM-ELC Case No. E006 of 2023), Memorandum of Appeal dated 05/12/2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5288/eng@2025-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.