Vesi & 2 others v Ndolo & another (Environment & Land Case E105 of 2022) [2024] KEMC 10 (KLR)
The bottom line
#A Machakos court ruled that family land remains subject to a customary trust even when the title register names only a few family members.
What this practically means
#Executive summary
#Key legal issues
#Whether a customary trust was pleaded though the exact words were not used
Yes - the Plaintiffs pleaded the substance of a customary trust by averring that the patriarch owned the land and that the registered owners held it for the benefit of the entire family
The Court scoured the Plaint and noted that although the words 'customary trust' were not used in black and white, the Plaintiffs averred that the land belonged to the patriarch Mbithi Kaloki, that Musyoka Vesi and Kiilu Ndolo were registered as owners 'but for the benefit of the entire family', and that the parcel is held in trust for the Plaintiffs and all members of the family. Measured against the framework in section 28(b) of the Land Registration Act as construed by the Supreme Court in Isack M'inanga Kiebia, these averments disclosed a customary trust in substance despite the absence of the label.
Whether the Plaintiffs proved a customary trust over Mitaboni/Mutituni/1812
Yes - all five ingredients of a customary trust were established, and the Defendants are not original allottees but beneficiaries; they hold the land in trust for the whole family
The Court traced the root of the title. It found the suit land was family land of Mbithi Kaloki before registration; the parties belong to the same family; the relationship is not remote; the Plaintiffs could have been registered but for intervening circumstances (adjudication registering those available); and the claim is directed against registered proprietors who are family members. The Defendants' evidence was internally inconsistent - alternating between purchase, inheritance and mere availability at adjudication - and DW2 contradicted herself on whether Musyoka Vesi signed by thumbprint or by pen, discrediting their case. PW2's unshaken evidence on the 1991 agreements corroborated the Plaintiffs.
Whether possession and occupation is a mandatory ingredient of a customary trust
No - following the Supreme Court in Isack M'inanga Kiebia, possession and occupation is relevant but not necessary; intention of the parties is key
The Court traced the history from Obiero v. Opiyo and Esiroyo v. Esiroyo, which held customary rights were not overriding interests, through Kanyi v. Muthiora and Mbui Mukangu, to the Constitution of Kenya, 2010 and section 28 of the Land Registration Act, 2012, which expressly lists 'trusts including customary trusts' as overriding interests. The Supreme Court on 5th October 2018 settled that actual possession and occupation is not a mandatory ingredient; what matters is the nature of the holding and the intention of the parties.
Sharing of rents equally between the two houses of the family
Determination stayed due to a pending suit in the High Court at Machakos (res sub judice, section 6 of the Civil Procedure Act)
The parties intimated that there is a suit pending in the High Court in Machakos touching on the same question of rent sharing. Applying the doctrine of res sub judice under section 6 of the Civil Procedure Act, the Court declined to pronounce itself on this head of relief and stayed its determination, leaving that question to the pending proceedings.
Legal principles established
#- A customary trust is an overriding interest and proof of actual possession and occupation, though relevant, is not a mandatory ingredient; the claimant must prove the five elements laid down by the Supreme Court
- A customary trust must be pleaded and proved even if the exact words 'customary trust' are not used, provided the substance is pleaded
- A Court should trace the root of the suit property and the intention of the parties, and ensure the registered owner is not the original allottee, before inferring a customary trust
Court orders
#- 1.A declaration that the Defendants hold the parcel of land known as Mitaboni/Mutituni/1812, in trust of the entire family of the late Mbithi Kaloki, including but not limited to the Plaintiffs
- 2.The Machakos County Land Registrar is ordered to reflect in the register that the Defendants hold Mitaboni/Mutituni/1812 in trust of the entire family of Mbithi Kaloki
- 3.Each party shall bear his/her own costs of the suit
- 4.Determination of the question of sharing rent equally between the two houses is stayed (the Court declines to pronounce itself on it now)
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over the transferred suit (transferred from the Environment and Land Court, Machakos, by Order dated 13th October 2022)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mutai & another v Salim & 2 others; Mutai & another (Interested Parties) (Environment and Land Case E020 of 2023) [2025] KEELC 6327 (KLR)[2025] KEELC 6327 (KLR)23 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Vesi & 2 others v Ndolo & another (Environment & Land Case E105 of 2022) [2024] KEMC 10 (KLR)", Case Analysis (2024). Machakos ELC Number E006 of 2020 (transferred to Machakos Magistrates' Court, Order dated 13th October 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/10/eng@2024-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.