Owere & another v Migazi & another (Both Sued as the Legal Administrators of the Estate of Ishmael Migasi (Deceased)) (Environment and Land Appeal E039 of 2025) [2026] KEELC 5097 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that long, peaceful family occupation can create a customary trust binding landowners even without registration.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondents proved the existence of a customary trust over Land Parcel No. Kanyada/Kanyabala/1008 (now subdivided into Land Parcel Nos. Kanyada/Kanyabala/4585 and 3533) to the requisite standard of proof.
- 2.Whether the judgment of the trial court should be upheld, varied or set aside, and who should bear the costs of the appeal.
Key legal issues
#Whether the Respondents proved a customary trust over the suit land to the requisite standard
Yes. The Respondents proved on a balance of probabilities a customary trust over Land Parcel No. Kanyada/Kanyabala/1008 (now subdivided into parcels 4585 and 3533), constituting an overriding interest preserved by the Land Registration Act, 2012.
The Court applied the Kiebia v M'Lintari guiding considerations and the Supreme Court's analysis that customary trusts survive the repeal of the Registered Land Act, now preserved as overriding interests under section 25(b) of the Land Registration Act, 2012. It found uncontroverted evidence of over eighty years of open, uninterrupted occupation, permanent homesteads, burial of deceased family members on the land, and the Appellants' lack of any objection or attempt to terminate that occupation. Even the Appellants' own witnesses (DW1, DW2, DW3) confirmed the Migasi family was settled on the land and never told they would be removed. The Court found the Respondents' interest was not so remote or tenuous as to be idle or adventurous.
Whether the judgment of the trial court should be upheld, varied or set aside
The trial court's judgment was upheld; the appeal was dismissed in its entirety with no order as to costs.
Exercising its first-appeal jurisdiction by way of retrial, the Court independently re-evaluated the pleadings, oral and documentary evidence, the impugned judgment and the grounds of appeal. It found the trial magistrate properly directed herself on the facts and the law relating to customary trust, and that the Appellants failed to demonstrate misapprehension of the evidence, misapplication of legal principles, or conclusions unsupported by the record. On costs, the Court adopted the trial magistrate's approach of ordering each party to bear its own costs, given the family relationships and the objective of preserving harmony between the two families.
Legal principles established
#- The applicable statutory provision preserving customary trusts as overriding interests is section 25(b) (elsewhere 28(b)) of the Land Registration Act, 2012, which binds a registered proprietor without the necessity of registration.
- A first appellate court must re-evaluate, re-analyse and reconsider the entire evidence tendered before the trial court and draw its own independent conclusions while allowing for the fact it neither saw nor heard the witnesses.
- Long, open and uninterrupted occupation with the registered proprietor's acquiescence, burial of the dead on the land and peaceful co-existence are weighty circumstances supporting a customary trust.
Court orders
#- 1.The appeal is dismissed in its entirety.
- 2.The judgment and decree of the Chief Magistrate's Court in Homabay CMC ELC Case No. E051 of 2023 delivered on 23rd October 2025 are upheld.
- 3.Each party to bear own costs of the appeal.
- 4.File closed.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Homa Bay (ELC)
- Homabay CMC ELC Case No. E051 OF 2023
- Jurisdiction invoked
- First appeal from the Chief Magistrate's Court to the Environment and Land Court
Relief refused
#The Appellants' prayer that the appeal be allowed and the judgment of the trial court be set aside with costs
The Court found the trial magistrate properly directed herself on the facts and law relating to customary trust and no basis existed to interfere with her findings.
Costs
Each party to bear own costs of the appeal; the trial magistrate's order that each party bear own costs of the suit was upheld.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, and for the foregoing reasons, I find that the appeal lacks merit and is hereby dismissed in its entirety. The judgment and decree of the Chief Magistrate's Court in Homabay CMC ELC Case No. E051 of 2023 delivered on 23rd October 2025 are hereby upheld.
Appeal dismissed. Each party to bear own costs.
The applicable statutory provision in the present dispute is section 25(b) of the Land Registration Act, 2012, which preserves customary trusts as overriding interests binding upon a registered proprietor without the necessity of registration.
I am therefore satisfied that the Respondents established, on a balance of probabilities, the existence of a customary trust over Land Parcel No. Kanyada/Kanyabala/1008 (now subdivided into Land Parcel Nos. Kanyada/Kanyabala/4585 and 3533).
This being a first appeal, this Court is enjoined to re-evaluate, re-analyse and reconsider the entire evidence that was tendered before the trial court and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify
Issues in the judgment
#The judgment is styled as an appeal against a Chief Magistrate's judgment yet is headed under the ELC and the header suggests a first-instance file; simultaneously paragraph 41 asserts 'The customary trust does not arise in this case because the suit property is not ancestral land' while the conclusion upholds a customary trust.
The statute preserving customary trusts is cited inconsistently as section 25(b) and section 28(b) of the Land Registration Act, 2012.
The record contains internally inconsistent evidence findings: DW2 stated in cross-examination that the Migasi family resides on the land, but in re-examination the opposite is recorded.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Owere & another v Migazi & another (Both Sued as the Legal Administrators of the Estate of Ishmael Migasi (Deceased)) (Environment and Land Appeal E039 of 2025) [2026] KEELC 5097 (KLR)", Case Analysis (2026). Homa Bay ELC E039 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5097/eng@2026-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.