Peter (Suing on her Behalf and on Behalf of the Late Peterson Muli Mbevi (Deceased)) v Mutevu (Sued in his Name and as a Personal Representative of the Estate of the Late Mutevu Kyeva (Deceased); Malua & another (Interested Parties) (Environment and Land Case E023 of 2021) [2025] KEELC 7390 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the suit property is ancestral/family land subject to a customary trust
Yes. The property was family land of Kyeva Musembi; Mutevu Kyeva was registered as first-born son holding in trust for the family of Nzuli Kyeva per Kamba custom, so the Defendant's title is subject to that customary trust
The Plaintiff's witnesses, including family members of both branches, testified the land belonged to Kyeva Musembi and was registered in the name of the first-born son to hold in trust. Even DW1's adopted statement described the land as acquired from his forefathers. The Defendant produced no evidence of any alternative land at Masimba given to Nzuli Kyeva. Section 28(b) LRA recognizes customary trusts as overriding interests.
Validity and enforceability of the sale agreement dated 3rd September 2004
The agreement is valid and enforceable, satisfying Section 3(3) of the Law of Contract Act, despite the alteration of the parcel number, because the land was adequately described by geographical features and sketch map, the price was paid in full, and possession was taken
The agreement described the land by geographical boundaries (Kaiti River, homesteads, sisal demarcations) with a sketch map, was signed by the vendor's family and attested by witnesses. Full purchase price of Kshs.200,000 was paid and the Plaintiff took possession in 2005, building three permanent houses. Limitation did not bar the claim since the contract was fully performed and only transfer remained outstanding.
Whether the Defendant proved trespass and entitlement to mesne profits and eviction
No. The Defendant failed to demonstrate absolute ownership or trespass; the Plaintiff was in lawful possession as purchaser from a beneficiary of trust land, so the counterclaim fails
Trespass requires a possessory right; the proper plaintiff in trespass is the person with title or possession. Mutevu Kyeva's title was encumbered by the subsisting customary trust, and the Plaintiff purchased from Mbuli Nzuli, a beneficiary. Her possession was therefore lawful. No valuation evidence supported the mesne profits claim. The court invoked Section 80(1) LRA to order cancellation of the Defendant's title.
Legal principles established
#- A customary trust is an overriding interest under Section 28(b) of the Land Registration Act that binds a registered proprietor notwithstanding Section 25(1)
- The burden of proving a customary trust falls on the party alleging it, and it must be proved through evidence
- Where a contract for sale of land has been completed and possession taken, statutory limitation under Section 4(1) of the Limitation of Actions Act does not bar enforcement; only transfer of title remained
- A court may order rectification or cancellation of a registration obtained or made by mistake under Section 80(1) of the Land Registration Act
Court orders
#- 1.A declaration that the Plaintiff is entitled, by reason of the sale agreement dated 03/09/2004, to ownership of the portion of land Parcel No. Ukia/Utaati/227 sold to her family by the late Mbuli Nzuli and Priscilla Betty Malua and in her possession since 2005
- 2.An order revoking the certificate of title for land Parcel No. Ukia/Utaati/227 registered in the name of the Defendant only
- 3.An order compelling the Defendant to forthwith transfer to the Plaintiff the portion of land Parcel No. Ukia/Utaati/227 in her possession ensuring to make provision for such access roads as may be necessary for the Plaintiff to access her portion of the land
- 4.The Plaintiff shall have costs of the suit and counterclaim
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) jurisdiction; Section 80 Land Registration Act invoked for rectification)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter (Suing on her Behalf and on Behalf of the Late Peterson Muli Mbevi (Deceased)) v Mutevu (Sued in his Name and as a Personal Representative of the Estate of the Late Mutevu Kyeva (Deceased); Malua & another (Interested Parties) (Environment and Land Case E023 of 2021) [2025] KEELC 7390 (KLR)", Case Analysis (2025). Not stated in the judgment (Machakos Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7390/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.