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ELCDismissedEnvironment and Land Appeal (Kakamega) arising from Butere ELC Case No. E035 of 2022· [2026] KEELC 3637 (KLR)

Anyonje v Kubati (Environment and Land Appeal E019 of 2025) [2026] KEELC 3637 (KLR)

Environment and Land Court
3 June 2026
5,248 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kakamega dismissed a nephew's appeal, confirming that fraud claims tied to succession must be raised in a probate court, not a land court.

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 Kakamega against the judgment of Hon. E. Wasike (PM) delivered on 20th February 2025 in Butere ELC Case No. E035 of 2022. The trial court had upheld the respondent's claim as registered proprietor of Land Parcel No. Kisa/Wambulishe/1578, dismissed the appellant's allegations of fraud and customary trust, and dismissed the defence and counterclaim. The appellant, a nephew of the respondent, appealed on grounds that the trial court erred in rejecting fraud in the respondent's acquisition of title (allegedly through two succession grants over the same estate) and in rejecting the existence of a customary trust. The appeal was canvassed by written submissions. The court reiterated the duty of a first appellate court to re-evaluate the evidence. It held that complaints about the manner in which succession was conducted, including alleged secret succession and competing grants, fall to the Probate and Administration court and not to an Environment and Land Court; absent a probate court decision upsetting the respondent's acquisition, fraud was not proved. On trust, the court applied the Supreme Court's elements of customary trust from M'nanga v M'lintari and found the appellant had not demonstrated that he could have been entitled to registration but for intervening circumstances; his evidence on occupation was inconsistent, and Henry Kubati Mahare was not his grandfather. The appeal was dismissed with the appellant bearing the costs of the appeal, the court noting the parties' common ancestry.

Key legal issues

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01

Whether fraud in acquisition of title through succession was proved

Holding

Not proved; such complaints fall to the Probate and Administration court, and absent a probate court decision upsetting the respondent's acquisition, the fraud allegations fail.

Reasoning

The appellant alleged that the respondent conducted two succession causes over the same estate and registered himself secretly. The court held that questions of whether succession was conducted secretly and which grant ought to prevail are for the Probate and Administration court; an ELC court cannot interrogate them. The appellant produced no decision from the probate court upsetting the acquisition, so the fraud allegations failed.

p. 8
02

Whether the appellant established a customary trust over the suit land

Holding

No. The appellant failed to demonstrate the elements of customary trust, particularly that he could have been entitled to registration but for intervening circumstances.

Reasoning

Applying the Supreme Court's elements of customary trust in M'nanga v M'lintari, the court found the appellant's lineage (through Alexander, brother of Henry Kubati) meant Henry Kubati Mahare was not his grandfather; he did not challenge the 1964 registration in Henry's name; occupation was not proved beyond 2021; and he could not show entitlement to registration but for intervening circumstances. The trial court's dismissal of the trust claim was upheld.

p. 9

Legal principles established

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  • A first appellate court must re-evaluate, reassess and re-analyse the evidence from the trial court and reach its own conclusions, while making allowance for not having seen or heard the witnesses.
  • Allegations of fraud tied to questions of succession can only be raised in a succession (Probate and Administration) court, not in an Environment and Land Court.
  • Without a probate court decision upsetting the acquisition of the property through succession, allegations of fraud tied to succession remain unproved.
  • A claimant asserting customary trust bears the legal burden of proving its elements, including that he could have been entitled to be registered but for intervening circumstances.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The appellant shall bear the costs of this appeal
On appeal from
Principal Magistrate's Court, Butere
Butere ELC Case No. E035 of 2022
Jurisdiction invoked
First appellate jurisdiction over the Environment and Land Court decision of the Principal Magistrate's Court (Civil Procedure Act; appeal against trial court judgment)

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, "Anyonje v Kubati (Environment and Land Appeal E019 of 2025) [2026] KEELC 3637 (KLR)", Case Analysis (2026). Environment and Land Appeal (Kakamega) arising from Butere ELC Case No. E035 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3637/eng@2026-06-03

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