Parningo & 2 others v Tongei (Appeal E041 of 2025) [2026] KEELC 5312 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Appellants proved a customary trust over Transmara/Kimintet 'F'/732
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
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.
Whether the constructive trust introduced in submissions could assist the Appellants
No; the trial court rightly ignored the constructive trust raised in submissions since it was not pleaded or supported by evidence
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.
Whether the Respondent's registered title should stand
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
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.
Legal principles established
#- 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
#- 1.The Appeal is dismissed
- 2.The judgment by the trial court is upheld
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.