Namwoso v Waswa (Environment and Land Appeal E018 of 2024) [2025] KEELC 5666 (KLR)
The bottom line
#A Kenyan court confirmed that someone who has lived on family land for decades can claim it through customary trust, even against a registered title holder.
What this practically means
#Executive summary
#Key legal issues
#Whether a customary trust was proved as an overriding interest over registered land
Yes; all elements in Isack M'inanga Kiebia v Isaaya Theuri M'lintari were met based on the Respondent's prolonged occupation, burial of her husband on the land, and the Appellant's non-occupation until 2011
The court applied the Supreme Court's five elements for a customary trust. The Respondent occupied the suit land continuously since before 1980, her husband was buried there, the initial registered owner acquiesced, and the Appellant only entered the land in 2011 after initiating succession proceedings, which the court found to be an afterthought aimed at displacing the Respondent.
Whether the trial magistrate erred in allowing an unproved claim
No; on a first appeal the court re-evaluates the evidence and affirms the trial finding, as the claim was proved on a balance of probabilities
Guided by Selle v Associated Motor Boat Company, the court reconsidered and evaluated the evidence afresh. It found the Respondent's continuous and uninterrupted occupation uncontested by the Appellant, establishing a customary trust under section 28(b) of the Land Registration Act, 2012 notwithstanding the Appellant's certificate of title.
Legal principles established
#- Long-standing possession and occupation of ancestral land gives rise to an inference of a customary trust
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.Each party to bear their own costs of the appeal and the costs before the trial Court
- On appeal from
- Chief Magistrate's Court, Bungoma (CM-ELC)
- Bungoma CM-ELC No. E036 of 2021
- Jurisdiction invoked
- First appeal from the Chief Magistrate's Court (Environment and Land jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Namwoso v Waswa (Environment and Land Appeal E018 of 2024) [2025] KEELC 5666 (KLR)", Case Analysis (2025). Bungoma ELC Appeal (Memorandum of Appeal dated 22/04/2024) from Bungoma CM-ELC No. E036 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5666/eng@2025-07-24
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