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ELCPartially AllowedELC LC E009 OF 2025· [2026] KEELC 4465 (KLR)

Okech & 5 others v Okech (Environment and Land Case E009 of 2025) [2026] KEELC 4465 (KLR)

Environment and Land Court
8 July 2026
LWL. N. Waithaka
1,295 words in judgment
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The bottom line

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What this practically means

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Executive summary

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By a plaint dated 19th September 2024, the plaintiffs sued the defendant, their sibling, seeking a declaration that he holds parcel LR MARACHI/ELUKHARI/2589 in trust for himself and them in equal shares, a declaration that his interest in a portion had been extinguished by their adverse possession, an order for subdivision of the parcel into seven equal portions with corresponding transfers, and costs. The plaintiffs' case was that the suit parcel was carved out of LR MARACHI/ELUKHARI/663, ancestral family land inherited from their grandfather through their father Michael Okech, that the defendant was registered as proprietor subject to a customary trust, and that the family homestead, graves and ceremonies are on the land, with elders having resolved that the land belongs to all the siblings. The defendant did not enter appearance despite service, and the suit proceeded by way of formal proof. PW1, Millicent Pauline Okech, testified and produced the registers for parcels 663 and 2589 and a Chief's letter of 1993. Relying on section 28 of the Land Registration Act and the Supreme Court decision in Kiebia v Mlintari, the plaintiffs submitted that customary trust is statutorily recognised as an overriding interest. The court framed one issue: whether the plaintiffs had proved their case on a balance of probabilities. Finding the evidence uncontroverted and showing the suit land to be family land registered in the defendant's name, the court entered judgment for the plaintiffs on the trust claim: it declared the defendant holds the parcel in trust for himself and the plaintiffs in equal shares, ordered subdivision into seven equal portions with transfers registered accordingly, and authorised the Deputy Registrar to execute transfer documents if the defendant declines. No order as to costs was made. The adverse possession limb was not expressly determined.

Key legal issues

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Whether the defendant holds the suit parcel in trust for the plaintiffs

Holding

Yes. The uncontroverted evidence showed the suit land is family/ancestral land carved out of the parents' parcel LR MARACHI/ELUKHARI/663 and registered in the defendant's name, attracting an overriding customary trust under section 28 of the Land Registration Act in favour of his siblings in equal shares.

Reasoning

The plaintiffs traced the suit parcel to their grandfather's land which passed to their father and was subdivided into parcels 2589, 2590 and 2591, with the defendant taking 2589. Evidence of ancestral occupation, family burials and elders' meetings was uncontroverted as the defendant did not enter appearance or attend the formal proof hearing. Relying on section 28(b) of the Land Registration Act and the Supreme Court decision in Kiebia v Mlintari, the court found the customary trust proved on a balance of probabilities.

p. 7

Legal principles established

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  • Customary trust is recognised by statute as an overriding interest over registered land under section 28 of the Land Registration Act, and where family/ancestral land is registered in the name of one family member, a trust in favour of the other family members arises even if not noted on the register

Court orders

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  1. 1.A declaration that the defendant holds the parcel of land known as NO. MARACHI/ELUKHARI/2589 in trust for himself and the plaintiffs in equal shares
  2. 2.An order that the parcel of land known as L.R MARACHI/ELUKHARI/2589 be subdivided into seven (7) equal portions/subdivisions and the portions be transferred and registered in the names of the parties accordingly
  3. 3.The Deputy Registrar of this Court is authorized to execute transfer documents in the event that the defendant declines to execute them
  4. 4.No order as to costs
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to registered land

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, "Okech & 5 others v Okech (Environment and Land Case E009 of 2025) [2026] KEELC 4465 (KLR)", Case Analysis (2026). ELC LC E009 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4465/eng@2026-07-08

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