Namalwa (Suing on Behalf of the Estate of Michael Namalwa Banga - Deceased) v Mbanda & another (Environment and Land Case 90 of 2016) [2025] KEELC 5349 (KLR)
The bottom line
#A Kenyan court ruled that a registered landowner held his brother's family land in trust, and family members can claim it even without registered rights.
What this practically means
#Executive summary
#Key legal issues
#Whether a customary trust was proved over the suit land
A customary trust was established; the original parcel was family land registered in the 1st Defendant's name to hold in trust for the Plaintiff's late husband, and all the elements in Isack M'inanga Kiebia were satisfied
The Defendants filed defences but did not testify, so the Plaintiff's evidence was uncontroverted; pleadings are not evidence. The suit land was part of original family land, the claimant is a family member in occupation, and the registered proprietor is a family member. The Supreme Court's elements of customary trust were all met on the evidence, including the County Surveyor's report confirming occupation by three families.
Whether indefeasibility of title defeats a claim of customary trust
No; both the Land Registration Act and the repealed Registered Land Act subject registered titles to trusts, including customary trusts, as overriding interests
Section 28 of the Land Registration Act and the corresponding provisions of the Registered Land Act provide that registration is subject to overriding interests, including trusts, which require no noting on the register. Registration therefore does not shield the trustee; it does not absolve him from his legal duty as a trustee.
Extent of the entitlement under the trust
The suit parcels (2.54 Ha) were part of the entitlement of the Plaintiff's late husband within the 7.4 Ha original parcel, including the portion sold to Joyce Ojwangi Obanda
The Surveyor's report showed the 1st Defendant occupies 4.5 Ha of the 7.4 Ha original parcel; the suit parcels of 2.54 Ha correspond to the deceased's share. Since the Plaintiff conceded a sale of part to Joyce Ojwangi Obanda, finality required the decree to include her portion despite her not being a party.
Legal principles established
#- A customary trust is an overriding interest in land which need not be noted on the register
- Pleadings are not evidence and no decision may be founded on unproved averments
- Registration as absolute proprietor does not absolve a proprietor from duties as a trustee
Court orders
#- 1.Declaration that the 1st Defendant holds land parcels Bunyala/Bulemia/2236 and 3877 in trust for the Plaintiff
- 2.The trust is determined and the 1st Defendant shall within 30 days surrender the original titles to the Land Registrar Busia for cancellation
- 3.Thereafter the 1st Defendant shall execute documents to register a portion measuring 30 x 68 footsteps or its equivalent in the name of Joyce Ojwangi Obanda and the remainder in the name of Mary Ogoba Namalwa in trust for the family of Michael Namalwa Banga
- 4.In default, the Deputy Registrar of the Court shall execute the relevant documents on behalf of the 1st Defendant
- 5.Permanent injunction against the Defendants, their agents, servants, employees, workers and persons claiming through them from interfering with the portions registered in the names of the Plaintiff and Joyce Ojwangi Obanda
- 6.Each party to meet their own costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to title and occupation of land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Namalwa (Suing on Behalf of the Estate of Michael Namalwa Banga - Deceased) v Mbanda & another (Environment and Land Case 90 of 2016) [2025] KEELC 5349 (KLR)", Case Analysis (2025). ELC Case No 90 of 2016 (Bunyala/Bulemia/131). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5349/eng@2025-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.