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ELCDismissedBungoma ELC Appeal (from Kimilili PM-ELC Case No. E006 of 2023), Memorandum of Appeal dated 05/12/2023· [2025] KEELC 5288 (KLR)

Bunusei & 2 others v Tomas (Environment and Land Appeal E023 of 2023) [2025] KEELC 5288 (KLR)

Environment and Land Court
10 July 2025
4,015 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal to the Environment and Land Court at Bungoma against the judgment of Hon. W.K. Onkunya in Kimilili PM-ELC Case No. E006 of 2023, which dismissed the Appellants' claim with costs. The Appellants, step-brothers of the Respondent sharing a biological mother, claimed that the Respondent holds LR No. Elgon/Namorio/2614 (a sub-division of LR No. Elgon/Namorio/545) in trust for them under customary trust, and sought a declaration, transfer orders, a permanent injunction and damages. The Respondent denied the trust, asserting absolute ownership and that the Appellants' father had been allocated his own land with no entitlement to parcel 545. The ELC judge, E.C. Cherono J, restated the duty of a first appellate court under Section 78 of the Civil Procedure Act to re-evaluate the evidence and reach an independent conclusion. Framing two issues - whether a customary trust existed and whether the appeal was merited - the court applied the Supreme Court's guidelines in Isack M'inanga Kieba v Isaaya Theuri M'Lintari and the Land Registration Act's provisions on indefeasibility and overriding interests. It found the Appellants' occupation claim contradicted by their own admissions that they had purchased and settled on other parcels and that only their mother resided on the suit land. Their key document, a Land Control Board consent, was not certified as required by sections 38 and 80 of the Evidence Act, undermining their burden of proof. The requisite elements of customary trust not being satisfied, the appeal was dismissed. However, invoking the parties' close family relationship, the court ordered each party to bear their own costs both here and before the trial court.

Key legal issues

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01

Existence of a customary trust over LR No. Elgon/Namorio/2614

Holding

No customary trust was established; the requisite elements from the M'inanga Kieba guidelines were not satisfied

Reasoning

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.

p. 7
02

Evidential weight of the uncertified letter of consent (P-Exhibit 1)

Holding

The uncertified copy of the Land Control Board consent significantly weakened the Appellants' case and undermined their discharge of the burden of proof

Reasoning

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.

p. 7
03

Costs despite dismissal

Holding

The trial court's costs order was varied; each party to bear their own costs due to the close family relationship

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear their own costs, both of the appeal and before the trial court

Authorities

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Legislation

  • Land Registration ActSection 24[a]
  • Land Registration ActSection 25[1]
  • Land Registration ActSection 28
  • Civil Procedure ActSection 78
  • Civil Procedure ActSection 27
  • Evidence ActSection 38
  • Evidence ActSection 80
  • Registered Land Act (now repealed)Section 30 (referred to in cited authority)

Cases cited (6)

  • Mbui Mukangu v Gerald Mutwiri Mbui
    CA No. 281 of 2000 [also cited as Court of Appeal 281/00 (Nyeri)]
  • Allan Kiama v Ndio Muthunya & Others
    Civil Appeal No. 42/1978
  • Juletabi Africa Adventure Limited and Another v Christopher Micharl Lockley
    [2017] eKLR
  • Isack M'inanga Kieba v Isaava Theuri M'Lintari & Another
    [2018] eKLR
  • Kenya Ports Authority v Kusthon [Kenya] Limited
    [2009] 2EA 212
  • Kiarie v. Kinuthia
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

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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, "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.