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ELCDismissedELC APPEAL NO. E025 OF 2025· [2026] KEELC 2496 (KLR)

Kulungu & another v Kivila & 3 others (Environment and Land Appeal E025 of 2025) [2026] KEELC 2496 (KLR)

Environment and Land Court at Machakos
30 April 2026
2,108 words in judgment
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The bottom line

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The Environment and Land Court in Machakos dismissed two brothers' claim that family land was held in trust for them, largely because their key agreements were unsigned.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Machakos from the judgment of the Co-operative Tribunal (Hon. J. Mwatsama) delivered on 3rd October 2024 in CTC No. 264 of 2014, which dismissed the Appellants' claim. The Appellants, grandchildren of Monica Katee Mumbo, claimed that shares purchased in Konza Ranching & Co. Society in 1964 were registered in various family names, eventually held in trust for the family by Naum Munyiva Kilungu, their stepmother, who allegedly sold the resulting plots (No. 505 agricultural 10.8 acres and No. 213 commercial 2 acres) to the 1st and 2nd Respondents without following the Law of Succession. They sought to have the Tribunal judgment set aside and judgment entered in their favour, or alternatively a retrial. The court, guided by Jabane v Olenja, re-evaluated the evidence. It found that family statements, including those of the Appellants' blood brothers and uncle, confirmed the plots belonged to Naum Munyiva Kilungu and that the Appellants' own share had been hived out as Machakos/Konza North Block 1/671. The agreements dated 30th October 1979, 20th August 1990 and 16th July 2011 relied on by the Appellants were unsigned and of no evidential value. The court held that the Appellants failed to prove the trust claim on a balance of probabilities and that the Tribunal did not err. The appeal was dismissed with no orders as to costs, the parties being relatives. Deliveries were signed at Machakos on 30th April 2026 by N.A. Matheka, Judge.

Key legal issues

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01

Whether the suit land was held in trust for the Appellants by Naum Munyiva Kilungu

Holding

The Appellants failed to prove a trust; the land belonged to Naum Munyiva Kilungu and their own share had been hived out into Machakos/Konza North Block 1/671

Reasoning

The court re-evaluated the record on this first appeal. Family statements, including those of the Claimants' uncle and blood brothers, confirmed that the plots belonged to Naum Munyiva Kilungu and that the Appellants' share was in member number 557, hived out as Machakos/Konza North Block 1/671. The alleged agreements dated 30 October 1979, 20 August 1990 and 16 July 2011 were unsigned and of no evidential value. The trust claim therefore failed on a balance of probabilities.

p. 9
02

Whether the Co-operative Tribunal erred in dismissing the Claim

Holding

The Tribunal did not err; its findings were supported by the evidence

Reasoning

In a first appeal the court re-evaluates the evidence to determine whether the conclusion below was sound. Having perused the record, including family statements and the unsigned agreements, the court found the evidence supported the Tribunal's conclusion that the land was not held in trust for the Appellants. Applying the principles in Jabane v Olenja, the court saw no basis to interfere with the factual findings of the Tribunal.

p. 9
03

Costs of the appeal

Holding

No orders as to costs despite dismissal, because the parties are relatives

Reasoning

Section 27 of the Civil Procedure Act provides that costs follow the event, but the court has discretion to rule otherwise. Guided by the Levben Products principle that departure from the general rule requires good grounds, the court exercised its discretion on the ground that the Appellants and Respondents are relatives, denying the Appellants their sought costs.

p. 10

Legal principles established

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  • An appellate court will not lightly differ from the findings of fact of a trial court unless based on no evidence or wrong principles
  • Constructive trusts are imposed by law irrespective of parties' intention; resulting trusts arise where the transferor did not intend to confer a beneficial interest, and a resulting trust arises in favour of the person who advances the purchase money
  • Costs follow the event under Section 27 of the Civil Procedure Act but the court retains judicial discretion to depart from that rule

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No orders as to costs as the parties are relatives

Authorities

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Legislation

  • Trustee Actdefinition of trust and trustee
  • Civil Procedure ActSection 27

Cases cited (6)

  • Jabane vs. Olenja
    [1986] KLR 661 664
  • Ephantus Mwangi vs. Duncan Mwangi Wambugu
    (1982-88) 1 KAR 278
  • Mwanasokoni vs. Kenya Bus Services
    (1982-88) 1 KAR 870
  • Twalib Hatayan Twalib Hatayan & Anor vs Said Saggar Ahmed Al-Heidy & Others
    (2015) eKLR
  • Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 others
    (2013) eKLR
  • Levben Products vs Alexander Films (SA) (PTY) Ltd
    1957 (4) SA 225 (SR) at 227M
On appeal from
Co-operative Tribunal
CTC No. 264 of 2014
Jurisdiction invoked
First appeal from the Co-operative Tribunal to the Environment and Land Court

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, "Kulungu & another v Kivila & 3 others (Environment and Land Appeal E025 of 2025) [2026] KEELC 2496 (KLR)", Case Analysis (2026). ELC APPEAL NO. E025 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2496/eng@2026-04-30

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