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ELCPartially AllowedNot stated in the judgment (Environment and Land Court suit, Busia)· [2026] KEELC 1953 (KLR)

Chami v Chami & another (Environment and Land Case 31 of 2017) [2026] KEELC 1953 (KLR)

Environment and Land Court
9 April 2026
5,842 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that even a registered landowner can hold ancestral family land in trust for a deceased relative's widow and son, and must hand over the title.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Bukhayo/Bugengi/1 since 1st September 1995, sued for the eviction of the two defendants, alleging they were the children of a former house-help with no claim to the land. The defendants, in a re-amended defence and counter-claim, asserted they are the widow and son of the deceased original owner, Yohana Chami Mboko, that the land is ancestral family land, and that the plaintiff holds title under a customary trust; they sought dismissal of the suit, cancellation of the title and re-registration. The court found on the evidence - including a chief's letter, the testimony of the plaintiff's step-sister and daughter, and the defendants' uninterrupted occupation - that the defendants are indeed the deceased's widow and son. Although the plaintiff's registration was uncontestable, sections 25(2) and 28(b) of the Land Registration Act subject registered land to trusts including customary trusts. Applying the Supreme Court's elements in Kiebia v M'intary, the court found a customary trust established. It further imposed a constructive trust, holding that such a trust need not be pleaded and guards against unjust enrichment. The plaintiff's own testimony that his father transferred the land in 1995 was contradicted by the death certificate showing the deceased died in 1992. The plaintiff's suit was dismissed and judgment entered on the counter-claim: the plaintiff holds the title in trust for the defendants and their families; the trust was determined; the plaintiff was ordered to surrender the original title within 30 days for cancellation and re-registration in the defendants' names, with a default power for the Deputy Registrar; each party was to bear their own costs as the parties are family.

Key legal issues

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01

Effect of registration under the Land Registration Act against a claim of customary trust

Holding

The plaintiff's registration on 1st September 1995 is uncontestable but does not defeat a customary trust; section 28(b) and section 25(2) subject registered land to trusts including customary trusts

Reasoning

The court accepted that section 24(a) and 25 of the Land Registration Act vest absolute ownership in the registered proprietor, but held that sections 25(2) and 28(b) preserve trusts, including customary trusts, as overriding interests not requiring noting on the register. Since the defendants proved family relationship to the deceased and long residence, the plaintiff holds subject to that trust.

p. 9
02

Whether the defendants are family members of the deceased entitled to the ancestral land

Holding

The evidence (chief's letter, witnesses, demeanour, long occupation) established that the 1st and 2nd defendants are the widow and son of the deceased, contradicting the plaintiff's claim that they were a house-help and her child

Reasoning

The plaintiff denied the filial relationship, but the chief's letter of 28th February 2017 produced without contest, the testimony of the plaintiff's own step-sister and daughter, and the deceased's failure to evict the defendants during his lifetime all corroborated the defendants' account. The court found the plaintiff's testimony that his father died in 1996 (when he died in 1992) to be false.

p. 8
03

Whether a constructive trust arises in favour of the defendants

Holding

Yes; a constructive trust was imposed in favour of the defendants as an equitable remedy to prevent unjust enrichment, without the need for pleading

Reasoning

Applying Twalib Hatayan, the court held that where equity treats the legal owner as a trustee, the law imposes a constructive trust; proof of intention is immaterial. Having been allocated his own parcel Bukhayo/Bugengi/12 while denying the defendants' family rights, the plaintiff's retention of the suit land would amount to unjust enrichment.

p. 11
04

Whether failure to plead fraud defeats the defendants' counter-claim

Holding

The failure to plead fraud was immaterial because the defendants' case rested on trust, not fraud

Reasoning

Counsel for the plaintiff, citing Vijay Morjaria and Kinyanjui Kamau, argued the title was indefeasible absent pleaded fraud. The court accepted the submission but held the defendants had hinged their case on trust in paragraphs 13 and 14 of the re-amended defence and counter-claim, so fraud did not need to be pleaded for the trust claim to succeed.

p. 9

Legal principles established

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  • Registration of a proprietor under the Land Registration Act does not relieve a proprietor of any duty or obligation to which he is subject as a trustee, including a customary trust
  • A constructive trust is an equitable remedy imposed by the court against unjust enrichment and need not be pleaded; the court may impose it where the circumstances demand
  • Not every claim qualifies as a customary trust; the essential elements are the nature of the holding, the intention of the parties, and the relationship of the claimant to the family, clan or group

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.The plaintiff holds the title to the land parcel No Bukhayo/Bugengi/1 in trust for the defendants and their families; that trust is hereby determined
  3. 3.The plaintiff shall within 30 days surrender to the Land Registrar the original title for Bukhayo/Bugengi/1 and any subsequent sub-division emanating therefrom for cancellation and issuance of a new title deed registered in the names of the defendants to hold the same in trust for themselves and the children of the 1st defendant
  4. 4.In default, the Land Registrar shall cancel the register and title and the Deputy Registrar shall, upon request, sign all necessary documents to facilitate the registration as ordered
  5. 5.Each party to bear their own costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes; claim founded on the Land Registration Act, sections 24, 25, 28(b), and the Constitution, Article 50

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, "Chami v Chami & another (Environment and Land Case 31 of 2017) [2026] KEELC 1953 (KLR)", Case Analysis (2026). Not stated in the judgment (Environment and Land Court suit, Busia). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1953/eng@2026-04-09

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