M'Mkunga (name not stated in judgment) - Appeal from Maua CMC Civil Case No. 205A of 2015 (Customary Trust over Njia/Kiegoi/48)
The bottom line
#A Meru court ruled that land registered in one sibling's name still belongs to all siblings under customary trust, dismissing his appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the suit land, Njia/Kiegoi/48, is trust property held under customary trust by the appellant in trust for himself and his siblings (the respondents)
- 2.Whether this first appellate court should interfere with the findings of the trial court
Key legal issues
#Whether the suit land is held under customary trust by the appellant for himself and his siblings
Yes. The late father was entitled to be registered, the land was family/clan land allocated by the clan, and the respondents were in occupation at registration, so their customary rights and a customary trust subsist.
The appellant's own evidence showed his father refused registration, implying the father was the person entitled to the land; his claim to have 'gathered' the land was untruthful. The Land Disputes Tribunal testimony of a Land Adjudication Committee member confirmed the land was registered in the appellant's name to hold in trust for the plaintiffs. The respondents were in actual possession at the August 1983 registration, their rights protected under Sections 28 and 30 of the repealed Registered Land Act.
The guiding principle for a first appellate court
The court must re-evaluate, re-assess and re-analyse the evidence and reach its own conclusions before deciding whether the trial court's findings stand.
Relying on Susan Munyi v Kehsar Shiani and Abok James Odera v John Patrick Machira, the court restated the duty of a first appellate court to analyze and weigh all the evidence afresh and give reasons whether affirming or departing from the trial court's conclusions.
Legal principles established
#- A first appellate court must re-evaluate the whole evidence on record and arrive at its own independent conclusions.
- Registration under the (now repealed) Registered Land Act did not extinguish customary rights or a customary trust; a proved customary trust is one to which a registered proprietor is subject under the proviso to Section 28.
Court orders
#- 1.The appeal is dismissed for lack of merit
- 2.Each party to bear their respective costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court at Maua (Hon. A.G. Munene - PM)
- Maua CMC Civil Case No. 205A of 2015
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court, appeal transferred to it by the High Court at Meru (Meru High Court Civil Appeal No. 167 of 2022) which held it lacked jurisdiction
Relief refused
#The appellant's prayer to allow the appeal, set aside the impugned judgment in its entirety, and have the respondents bear the costs of the appeal
The court found the appellant holds the suit land in customary trust for himself and his siblings and found no basis for interfering with the trial court's findings
Costs
Parties will bear their respective costs of the appeal (each party to bear their own costs).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the above reasons, this appeal is rejected and dismissed for lack of merit. Parties will bear their respective costs of the appeal.
Having reviewed the evidence on record and having evaluated the evidence against the law, this court, like the trial court, comes to the finding that the appellant holds the suit land in trust for himself and for his siblings.
By dint of their possession and occupation of the land as at 1983, their customary rights were protected under Sections 28 and 30 of the repealed Registered Land Act.
Refusal to be registered as proprietor would not have arisen if the appellant's late father was not entitled to be so registered.
Issues in the judgment
#The name of the appellant and respondents is not stated in the judgment extract provided; parties identified only by role.
The Supreme Court case is spelled inconsistently within the judgment (M'Lintari vs M'Lithari).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M'Mkunga (name not stated in judgment) - Appeal from Maua CMC Civil Case No. 205A of 2015 (Customary Trust over Njia/Kiegoi/48)", Case Analysis (2025). Not stated in the extract of the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6132/eng@2025-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.