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ELCPartially AllowedWebuye SPM-ELC Appeal (Memorandum of Appeal dated 22/07/2024) – appeal from Webuye SPM-ELC No. 28 of 2018· [2025] KEELC 6069 (KLR)

Wafula v Khaemba & 4 others (Environment and Land Appeal E034 of 2024) [2025] KEELC 6069 (KLR)

Environment and Land Court
18 September 2025
4,994 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that land registered in someone's name can still legally belong to a deceased person's family, who must now pursue distribution through succession courts.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon. V. Yator (SPM) in Webuye SPM-ELC No. 28 of 2018, which had allowed the Respondents' claim for distribution of 20 acres carved out of L.R. No. Ndivisi/Khalumuli/740 and registered as Ndivisi/Khalumuli/3090 in the Appellant's name. The Appellant, son of the late Khaemba Makhakha, challenged the judgment on some 22 grounds, principally that judgment was entered for deceased plaintiffs, that the sale agreement of 20/02/1976 was fraudulent, and that no trust had been pleaded or proved. E.C. Cherono, ELC Judge, consolidated the grounds into two issues. On the first, the court held that although some respondents had died before or during the suit without substitution, the cause of action was severable; the suit abated only in respect of the deceased respondents and remained alive for the survivors. On the second, the court found the 1976 agreement complied with section 3(3) of the Law of Contract Act, that the Appellant's own 1998 agreement with Wilberforce Barasa amounted to unlawful intermeddling, and that the succession court's inclusion of the Appellant as beneficiary was for the benefit of his father's estate, not for exclusive ownership. Relying on Mwangi v Mwangi, Kanyi v Muthiora, Wambugu v Njuguna and Mukiri v Njoroge, the court held the Appellant holds the 20 acres on constructive trust for the estate of Khaemba Makhakha, inferrable even though not pleaded. The appeal was allowed: the trial judgment was set aside and substituted with a declaration of trust, but the distribution claim was declined for want of jurisdiction. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether judgment entered in favour of deceased parties vitiated the suit

Holding

No. The cause of action was severable; the suit abated only in respect of the deceased respondents without substitution and remained alive for the surviving respondents.

Reasoning

The court noted that some respondents died before suit and others during pendency without substitution. It held that a deceased person lacks capacity to sue and substitution is required under Order 24 Rule 3 within one year of death, failing which the suit abates as to that party. However, because the cause of action was severable and not dependent on the presence of all plaintiffs, the death of some respondents did not extinguish the suit as regards survivors.

p. 6
02

Whether the Appellant held the suit land in trust

Holding

Yes. Though registered proprietor of the 20 acres excised from Ndivisi/Khalumuli/740, the Appellant holds it on constructive trust for the estate of Khaemba Makhakha.

Reasoning

The court found the father purchased 20 acres in 1976 under a written agreement complying with section 3(3) of the Law of Contract Act; the Appellant's own 1998 agreement with Wilberforce Barasa was illegal intermeddling. The succession court's inclusion of the Appellant was for the benefit of Khaemba Makhakha's estate, not exclusive ownership. Registration did not extinguish the beneficiaries' equitable interests, and the trust could be inferred though not pleaded.

p. 9
03

Mode of distribution of the 20 acres

Holding

The court declined to order distribution, holding that distribution of a deceased's estate falls outside the ELC's mandate.

Reasoning

The plaint, the note dated 20/1/1998 and the minutes of 24/10/1998 contained varying modes of distribution. The court held its mandate is limited to title, occupation, use and environmental regulation of land, and therefore confined itself to a declaration of trust, leaving distribution to the succession fora.

p. 9

Legal principles established

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  • A suit cannot be defeated merely on account of misjoinder or non-joinder of parties; where a party dies during pendency without substitution, the suit abates only in respect of that party
  • Registration as proprietor of land does not by itself negate a trust; the court may look behind the registration to determine beneficial ownership
  • A constructive or resulting trust may be inferred from the facts even where not specifically pleaded
  • A sale by a person not seized with legal authority over a deceased's estate amounts to intermeddling and is illegal

Court orders

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  1. 1.The judgment of the trial court is set aside and substituted with an order that the Appellant holds 20 acres in trust for the estate of Khaemba Makhakha
  2. 2.The Respondents' claim for distribution is declined for want of jurisdiction
  3. 3.Each party shall bear their own costs
On appeal from
Principal Magistrate's Court, Webuye
SPM-ELC No. 28 of 2018
Jurisdiction invoked
Section 78 of the Civil Procedure Act (first appellate court jurisdiction)

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, "Wafula v Khaemba & 4 others (Environment and Land Appeal E034 of 2024) [2025] KEELC 6069 (KLR)", Case Analysis (2025). Webuye SPM-ELC Appeal (Memorandum of Appeal dated 22/07/2024) – appeal from Webuye SPM-ELC No. 28 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6069/eng@2025-09-18

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