Mutiso & 2 others v Mutiso & another (Environment and Land Case E013 of 2025) [2026] KEELC 2072 (KLR)
The bottom line
#A Kenyan land court ruled that family members claiming ancestral land under customary trust can sue without probate, since they sue for themselves.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs have locus standi to bring the suit
The Plaintiffs have locus standi because their claim is pleaded on their own behalf as beneficiaries under a subsisting customary trust, not on behalf of the estate of the deceased; a grant of probate is not required.
The Plaint avers that the suit property is ancestral land registered in the 1st Defendant's name in trust for the family of the late Mutiso Kyenze. Customary trusts are overriding interests under Sections 25(1)(b) and 28(b) of the Land Registration Act. Since the claim is not tied to the deceased's estate, the Defendants' objection premised on lack of grant of letters of administration fails.
Whether the claim based on customary trust will succeed
Not determined at this stage; it depends on the evidence to be adduced at the hearing.
The court noted that while a customary trust is a valid overriding interest under the Land Registration Act, the burden of proving it lies on the party alleging it, per Section 107(1) of the Evidence Act and the Juletabi and Mbui Mukangu authorities. Whether the Plaintiffs discharge that burden is a matter for trial.
Legal principles established
#- The burden of proving a customary trust falls on the party alleging it
- A party need not obtain a grant of probate where the claim is pleaded on the party's own behalf as beneficiary under a customary trust rather than on behalf of the deceased's estate
Court orders
#- 1.The preliminary objection is dismissed
- 2.Costs shall be in the cause
- Jurisdiction invoked
- Original jurisdiction over land claims (customary trust claim under the Land Registration Act, 2012)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutiso & 2 others v Mutiso & another (Environment and Land Case E013 of 2025) [2026] KEELC 2072 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2072/eng@2026-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.