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ELCDismissedNot stated in judgment (arising from Succession Cause No. 145 of 2011, Eldoret High Court)· [2025] KEELC 5809 (KLR)

In re Estate of Kimeto Koitoror Chesir alias Kimeto Arap Chesire - Deceased (Environment and Land Case 76 of 2022) [2025] KEELC 5809 (KLR)

Environment and Land Court
23 July 2025
LWL. N. Waithaka
3,626 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a family land trust claim because the claimants could not prove their father's brother held the land in trust for them.

What this practically means

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Executive summary

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The plaintiffs, Tabarbuch Toroitich and Joseph Kimutai Chesire, sued the defendants, Francis Kiptoo Kimeto and Benjamin Kiplagat, claiming that land parcel Irong/Iten/133 was registered in the name of Kimeto Arap Chesire (the defendants' father) in 1961 as trustee for the plaintiffs' father, Toroitich Chesire Koitoror, who was said to be working in Uasin Gishu during land adjudication. The matter arose within Succession Cause No. 145 of 2011 and was transferred by Omondi J for determination of the trust issue. Objectors in the succession proceedings were not affected, the court confining itself to parcel 133 and the plaintiffs' claim. The plaintiffs relied on unsigned minutes of an elders' meeting of 17th May 2010 allocating parcel 133 to their family, and cited authority on the elements of customary trust. The defendants denied any trust, contending Kimeto solely used the land. The court accepted, on DW2's credible testimony, that the land was family land before registration, but held that the plaintiffs failed to prove the pleaded customary trust: they did not show Kimeto gathered the land on behalf of family members who had relocated, and the plaintiffs' family's disinterest from 1961 until after both fathers died was inconsistent with a legal interest. The elders' decision was not adopted, its basis not being laid. The suit was dismissed with costs to the defendants and the file transferred to Iten High Court for the Succession Cause.

Key legal issues

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01

Whether the suit land was subject to a customary trust in favour of the plaintiffs

Holding

The court found the suit land was historically family land but that the plaintiffs failed to lay a firm basis for the trust claim

Reasoning

The court accepted, on DW2's testimony, that the land was family land before 1961 registration. However, proof of trust required more: evidence that Kimeto gathered the land during adjudication on behalf of absent family members, which was not demonstrated. The plaintiffs' family relocated to Uasin Gishu, made no claim during their father's lifetime, and never utilised the land, which the court took as disinterest inconsistent with a legal interest.

p. 7
02

Whether the elders' decision of 17th May 2010 should be adopted by the court

Holding

The court declined to adopt the elders' decision as its own, finding no firm basis laid for it

Reasoning

The minutes (Pexbt 6) were unsigned, did not record attendees or the elders who made the decision, and the family of Kimeto rejected the decision. The plaintiffs adduced no evidence establishing the foundation for the elders' determination, so the court would not adopt it as the court's own decision.

p. 7

Legal principles established

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  • Trust is a question of fact and the party asserting a customary trust must lead evidence capable of proving it

Court orders

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  1. 1.The plaintiffs' case is dismissed with costs to the defendants
  2. 2.The file is transferred to Iten High Court to hear and determine the Succession Cause

Authorities

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Legislation

  • Land Registration ActSection 24
  • Land Registration ActSection 80
  • Evidence Act, Cap 80 Laws of KenyaSection 33
  • Evidence ActSection 33(a) and (d)
  • Civil Procedure ActSection 27

Cases cited (3)

  • Isack Kieba H'inaga v Isaaya Theuri M'Lintary & Another
    SCOK no. 107 of 2015
  • Kanyi v Muthoni
    (1984) KLR 712
  • Ngugi v Kamau & another
    (Environment & Land Case 36 of 2020) [2022] KEELC (KLR)
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act, following transfer by Omondi J to determine the issue of trust

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, "In re Estate of Kimeto Koitoror Chesir alias Kimeto Arap Chesire - Deceased (Environment and Land Case 76 of 2022) [2025] KEELC 5809 (KLR)", Case Analysis (2025). Not stated in judgment (arising from Succession Cause No. 145 of 2011, Eldoret High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5809/eng@2025-07-23

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