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ELCPartially AllowedNot stated in judgment· [2025] KEELC 5387 (KLR)

Ondora v Ondoro (Land Case E007 of 2023) [2025] KEELC 5387 (KLR)

Environment and Land Court
17 July 2025
ADA.E. Dena
4,225 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Siaya court ruled that a stepson holding registered family land must transfer the portion his stepmother occupies to her and her children because it is held in trust.

What this practically means

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Executive summary

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The plaintiff, the second wife of the late Ondoro Akuom, sued the defendant, her stepson and registered proprietor of land parcel North/Ugenya/Doho/169, seeking a declaration that he holds 0.85 HA of the parcel in trust for her and her children, an order for transfer, and an injunction. The defendant counterclaimed for her eviction and a permanent injunction, asserting he was first registered as proprietor during adjudication in 1974 and that the plaintiff belongs on parcel 188. The plaintiff testified that the suit land was family land given by the patriarch Akwom to her husband, that the husband authorised the defendant's registration, and that a family meeting in 1994 agreed to divide the land instead of rectifying the title. The court applied the five criteria in Isack M'Inanga Keibia v Isaaya Theuri M'Lintari and found the land was family land before registration: all family members lived on parcel 169, parcel 188 bore no homesteads and served as family farmland, family members were buried on parcel 169, and Luo custom places the youngest son in the father's boma. The plaintiff's family membership was never denied. The defendant's assertion that the parties knowingly registered separate parcels the same day was unsupported by evidence. Relying on the Supreme Court's Shah v Mombasa Bricks decision, the court held that trust, including constructive trust, is an overriding interest under Section 28 of the Land Registration Act. However, the precise 0.85 HA extent was unproved, the boundary being an unsurveyed trench. Judgment was entered for the plaintiff: a declaration of trust over the portion she occupies, a court-directed survey and excision within 90 days, transfer of the excised portion within 45 days (with the Deputy Registrar empowered to sign in default), and a permanent injunction. The counterclaim was dismissed. Being a family suit, each party bears its own costs; the plaintiff bears survey and registration costs.

Key legal issues

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01

Whether a customary/constructive trust arises over registered family land in favour of the plaintiff

Holding

Yes - the plaintiff proved the suit land was family land before registration, that she is a family member by marriage, and that her claim is directed at the registered proprietor who is family, satisfying the Isack M'Inanga Keibia criteria.

Reasoning

Applying the Supreme Court's five-element test, the court found the land was family land before registration: all wives and children of Ondoro lived on parcel 169, parcel 188 had no homesteads and was used for family farming, the defendant's own mother was buried on parcel 169, and Luo custom placed the youngest son in the father's boma. The plaintiff's membership of the family by marriage was never denied. Equity therefore intervened against the registered title, trust being an overriding interest under Section 28 of the Land Registration Act.

p. 6
02

Whether the defendant's registered title defeats the claim

Holding

No - the defendant's first-registration hypothesis was unsupported by evidence, and a trust overrides a registered title.

Reasoning

The defendant argued both parcels were registered the same day and each party knew what they were getting, but led no evidence to that effect, leaving the hypothesis a mere hypothesis. Entries 4 and 5 of 7/6/2022 on the green card favoured the defendant. Relying on the Shah v Mombasa Bricks decision of the Supreme Court, the court held that the right to property under Article 40 is not absolute and trust, including constructive trust, is an overriding interest under Section 28 of the Land Registration Act.

p. 6
03

Whether the specific portion of 0.85 HA claimed was proved

Holding

Not established with precision; the court ordered a survey to ascertain the portion actually occupied and used for cultivation.

Reasoning

The parties disputed the size claimed - the plaintiff asserted a half share while the defendant placed her occupation at 0.2Ha, and the boundary was a trench not informed by survey. No survey report was produced. Invoking its power under Section 13para 5 of the Environment and Land Court Act to grant any relief that is fit and just, the court directed the Land Surveyor and Land Registrar to survey and excise the portion in the plaintiff's occupation, to be transferred to her and her children.

p. 7

Legal principles established

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  • A trust, including constructive trust, is an overriding interest against a registered title and may defeat a certificate of title.
  • Not every claim of a right to land qualifies as a customary trust; the nature of the holding and intention of the parties are essential.
  • The burden of proving a trust lies on the party pleading it.

Court orders

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  1. 1.A declaration that the Defendant holds the portion in occupation by the plaintiff out of land parcel North/Ugenya/Doho/169 in trust for the plaintiff and her children
  2. 2.The Land Surveyor Ugenya and the Land Registrar Ugenya shall visit the suit property within 90 days of the judgment, ascertain and survey the portion in occupation of the plaintiff, identify the exact boundaries and cause it to be excised
  3. 3.The exercise shall be conducted in the presence of the Chief Doho Sublocation and the defendant
  4. 4.The Defendant to transfer the excised portion to the plaintiff and her children within 45 days of the survey, in default the Deputy Registrar to sign the necessary documents
  5. 5.A permanent injunction restraining the Defendant and his agents from interfering with the plaintiff's use and enjoyment of the excised portion
  6. 6.The costs of the survey exercise and registration to be borne by the plaintiff
  7. 7.The counterclaim is dismissed with no orders as to costs
  8. 8.Each party shall bear its own costs of the suit
Jurisdiction invoked
Section 13[5] of the Environment and Land Court 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, "Ondora v Ondoro (Land Case E007 of 2023) [2025] KEELC 5387 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5387/eng@2025-07-17

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