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ELCDismissedE.L.C Appeal (Kilgoris) - Memorandum of Appeal dated 10.09.2025, arising from E.L.C Case Number E028 of 2024· [2026] KEELC 5312 (KLR)

Parningo & 2 others v Tongei (Appeal E041 of 2025) [2026] KEELC 5312 (KLR)

Environment and Land Court
28 July 2026
2,832 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kilgoris dismissed three men's claim to family land because they could not prove a customary trust against the registered owner.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon. W.C Waswa, Senior Magistrate, delivered on 24 July 2025 in E.L.C Case No. E028 of 2024 at Kilgoris, in which the trial court dismissed the defendants' defence and counterclaim and upheld the plaintiff's claim over parcel Transmara/Kimintet 'F'/732, issuing eviction and injunction orders. The Appellants, who were the defendants before the trial court, advanced seven (as printed, nine lettered) grounds contending that the trial magistrate failed to apply the doctrine of customary trust under section 28(b) of the Land Registration Act, disregarded their occupation since 1990, and erred in upholding the Respondent's registered title. The Respondent maintained that the customary trust claim was speculative, that his title issued on 15.12.2022 was indefeasible under Article 40 of the Constitution and sections 24-26 of the Land Registration Act, and that occupation alone confers no rights. M.N. Mwanyale J, sitting as a first appellate court, framed three issues and held that the Appellants had conceded knowledge of the adjudication process under the Land Adjudication Act, whose internal dispute mechanisms they did not invoke. Applying the five elements for customary trust from the Supreme Court's decision in Isack M'Inanga Kiebia v Isaaya Theuri M'Lintari, the court found none proved, noting the counterclaimers never pleaded a clan or family nexus with the Respondent. A constructive trust raised only in submissions was rightly ignored, submissions not being evidence. The court upheld the trial judgment and dismissed the appeal with costs of the appeal, the suit and the counterclaim awarded to the Respondent.

Key legal issues

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01

Whether the Appellants proved a customary trust over Transmara/Kimintet 'F'/732

Holding

No customary trust was proved; none of the Kiebia elements were established and the counter-claimers did not plead that the Respondent was a member of their clan or family

Reasoning

The claimant under a customary trust must show the land was family, clan or group land before registration, membership of that group, a non-remote relationship with the registered proprietor, entitlement to registration absent intervening circumstances, and that the claim is directed at a registered proprietor within the family or clan. None was proven, and the burden of proof under sections 107-109 of the Evidence Act was not discharged.

p. 9
02

Whether the constructive trust introduced in submissions could assist the Appellants

Holding

No; the trial court rightly ignored the constructive trust raised in submissions since it was not pleaded or supported by evidence

Reasoning

A party is bound by its pleadings; a case cannot be made in submissions. Submissions are advocacy, not evidence, and cannot substitute for proof of the pleaded customary trust. Reliance on Daniel Toroitich Arap Moi v Mwangi Stephen Murithi.

p. 9
03

Whether the Respondent's registered title should stand

Holding

Yes; the Respondent's title, obtained through the adjudication process, is protected under sections 24, 25 and 26 of the Land Registration Act and was not impeached

Reasoning

The suit parcel was allocated to the plaintiff through the adjudication process. The Land Adjudication Act has internal dispute-resolution mechanisms; had the Appellants been in occupation, the land would have been demarcated to them. They did not impeach the title, and a registered owner's rights under sections 24-26 of the Land Registration Act prevail.

p. 10

Legal principles established

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  • A party relying on customary trust must prove the five elements set out in Isack M'Inanga Kiebia v Isaaya Theuri M'Lintari
  • Submissions cannot take the place of evidence; a new theory of trust raised only in submissions cannot sustain a claim
  • Rights over land in an adjudication section must be ascertained through the Land Adjudication Act mechanisms, including objection proceedings and appeals to the minister

Court orders

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  1. 1.The Appeal is dismissed
  2. 2.The judgment by the trial court is upheld
  3. 3.Costs of the Appeal, costs of the suit and counter-claim are awarded to the Respondent
On appeal from
Chief Magistrate's Court, Kilgoris
E.L.C Case Number E028 of 2024
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court under the Environment and Land Court Act

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, "Parningo & 2 others v Tongei (Appeal E041 of 2025) [2026] KEELC 5312 (KLR)", Case Analysis (2026). E.L.C Appeal (Kilgoris) - Memorandum of Appeal dated 10.09.2025, arising from E.L.C Case Number E028 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5312/eng@2026-07-28

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