Kulungu & another v Kivila & 3 others (Environment and Land Appeal E025 of 2025) [2026] KEELC 2496 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit land was held in trust for the Appellants by Naum Munyiva Kilungu
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
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.
Whether the Co-operative Tribunal erred in dismissing the Claim
The Tribunal did not err; its findings were supported by the evidence
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.
Costs of the appeal
No orders as to costs despite dismissal, because the parties are relatives
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.No orders as to costs as the parties are relatives
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.