James Kigen & 2 Others v Elizabeth Jepkosgei Ngasura & 2 Others

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uncontested. For example, it is common ground that central to this protracted litigation are two parcels of land, namely L.R. No. Kericho/Kongotik/975 and L.R. No. Kericho/Kongotik/1024 (the suit properties). There is no dispute that the protagonists are all descendants of the late Silalo Chemoigut (deceased). The deceased had three wives. He died in the early 1960s before land adjudication was conducted in the area. 2. The appellants are personal representatives of the estates of Zakayo Sawe Arap Ngasura (deceased) and Kibor Arap Ngasura (deceased), who were step-brothers of Kimibei Arap Kimakut (deceased). The respondents are the personal representatives of the estate of the late Kimibei Arap Kimakut. 3. The genesis of the dispute is that upon first registration of the land in question in 1970, the suit properties were registered in the name of Kimibei Arap Kimakut, to the exclusion of his step- brothers. The appellants contend that the suit properties formed part of the ancestral land of Silalo Page 3 of 22

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Chemoigut and that Kimibei Arap Kimakut held the said parcels of land in trust for his brothers. On the other hand, the respondents maintained that Page 4 of 22

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L.R. No. 1024 was allocated to Kimibei Arap Kimakut’s household as family land, and that L.R. No. 975 was acquired solely by Kimibei Arap Kimakut through his own efforts. 4. Before approaching the Court, the appellants' predecessors had lodged complaints before the Land Disputes Tribunal in 1994. In 2009, the tribunal recommended equal subdivision of the land among the three houses. However, these recommendations were never implemented. The respondents subsequently obtained a grant of letters of administration and a Certificate of Confirmation of the Grant in Kericho High Court Succession Cause No. 109 of 2012, distributing the suit properties to strangers and beneficiaries of Kimibei Arap Kimakut’s estate. The appellants sued the respondents before the trial court by way of an originating summons dated 23 rd October 2015, which was later amended on 20 th June 2017 and orally amended on 23rd October 2018 seeking determination of the following questions: i) Whether Silalo Chemoigut was the lawful owner entitled to registration of L.R. No. 975 and 1024; Page 5 of 22

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ii) Whether Kimibei Arap Kimakut unlawfully registered the suit properties in his name to the exclusion of beneficiaries from the other two houses; iii) Whether there existed a trust between Kimibei Arap Kimakut and his brothers, Kibor Arap Ngasura and Zakayo Sawe Arap Ngasura, with respect to the suit properties; iv) Whether the appellants were entitled to a declaration that the suit properties were held in trust for the estates of the said brothers; v) Whether the appellants were entitled to orders for subdivision of the suit properties into three equal portions; vi) Whether the appellants were entitled to costs of the suit. 5. The respondents, through a replying affidavit dated 30 th March 2016 opposed the originating summons. They contended that L.R. No. 975 was acquired solely by the late Kimibei Arap Page 6 of 22

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Kimakut through his own efforts and was not family land. They also argued that the estate of Silalo Chemoigut had already been Page 7 of 22

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distributed among the three households. L.R. No. 1024 was allocated to Kimibei's household, L.R. No. 1023 to the appellants' household, and L.R. No. 478 to the 1st household. They maintained that the appellants' claim was, at its core, a complaint of unequal distribution, not a claim of trust. 6. In the impugned judgment delivered on 18 th November 2021, Oundo, J. dismissed the appellants' suit with costs. In the definitive paragraphs (65 to 72), the learned judge stated: 65. ‘‘Indeed the question of how a trust is created is a question of fact that has to be proved by evidence, as was held by the Court of Appeal in the case of Mumo vs. Makau (2002) IEA 170. The evidence adduced herein by the Plaintiff was to the effect that whereas the suit lands No. Kericho/Kongotik/975 and 1024, amongst other parcels of land belonged to their grandfather the late Silalo A. Chemoigut who had married three wives, one of his sons Kimibei Arap Kimakut (deceased) who hailed from one of his three houses, unlawfully registered LR No. Kericho/Kongotik/975 and Kericho/Kongotik/1024 in his name as the sole proprietor, to the exclusion of all other beneficiaries of his deceased's brothers' two houses namely Kibar Arap Ngasura (deceased) and Zakayo Sawe Arap Ngasura (deceased). The Plaintiff's evidence was that he had Page 8 of 22

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filed suit against the Defendants so as to seek orders from the court to have the impugned Page 9 of 22

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parcels of land subdivided equally between the deceased Silalo A. Chemoigut's three houses. 66. Quite clearly although the evidence adduced herein was to the effect that the registration of Kimibei Arap Kimakut (deceased)to LR No. Kericho/Kongotik/975 and Kericho/Kongotik/1024 was a first registration, yet the said evidence did not raise any issues of trust. No evidence was laid bare to the effect that the impugned parcels of land had been registered to Kimibei Arap Kimakut (deceased) solely for the benefit of the estate of Kibar Arap Ngasura (deceased) and Zakayo Sawe Arap Ngasura (deceased), or that the impugned parcels of land had always been reserved for use of the Silalo A. Chemoigut's households... 69. As notably seen in the present case, the issue of there having been a trust established between Kimibei Arap Kimakut (deceased), Kibor Arap Ngasura (deceased) and Zakayo Sawe Arap Ngasura (deceased) with respect to LR No. Kericho/Kongotik/975 and Kericho/ Kongotik/1024 was brought out in the Plaintiffs' pleadings and the written submissions but not in the evidence adduced in court. 72. Indeed, not every claim of a right to land will qualify as a customary trust. In the end, I find that the Plaintiffs have failed to prove their case against the Defendants on a balance of probabilities and proceed to dismiss the same with costs to the Page 10 of 22

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Defendants." Page 11 of 22

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7. Dissatisfied by the above verdict, the appellants filed a memorandum of appeal dated 10th June 2022 raising 10 grounds which, for the sake of brevity, can be summed up into one germane ground, namely, whether the appellants’ proved by way of evidence that Kimibei Arap Kimakutdeceased held the said parcels of land in trust for his brothers. 8. In support of their appeal, the appellants submitted that the trial court erred in failing to appreciate that the circumstances of this case established a customary trust. They contended that the 1st respondent's admission that L.R. No. 1024 was family land, coupled with the fact that L.R. No. 975 was occupied by the appellants' family members and used for burials, clearly demonstrated that the suit properties were ancestral land held in trust. They further submitted that the trial court misapprehended their claim by treating it as one for redistribution of land rather than a claim of trust. The appellants relied on the principle that where land is registered in the name of one family member during adjudication due to Page 12 of 22

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the absence of others, a customary trust is implied. They cited the case of Isack Page 13 of 22

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M'inanga Kiebia vs. Isaaya Theuri M'Lintari & Another [2018] eKLR and Mbu Mukangu vs. Gerald Mutwiri Mbu, HCCCA No. 281 of 2000. 9. In opposing the appeal, the respondents argued that the appellants had failed to establish the elements of a customary trust. They emphasized that the land was a first registration and that the appellants' claim was essentially one of unequal distribution, which does not amount to a trust. The respondents further submitted that the appellants' occupation of the land was permissive and could not form the basis of a trust claim. They relied on the Supreme Court decision in Isack M'inanga Kiebia vs. Isaaya Theuri M'Lintari & Another (supra) to argue that occupation alone is not sufficient to establish a trust and that the nature of holding and intention of the parties must be proved. 10. The Court of Appeal holds a distinct and heavily defined role when hearing a first appeal in a civil matter originating from the High Court, the Environment and Land Court (ELC), or the Page 14 of 22

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Employment and Labour Relations Court (ELRC). The primary mandate of the Court of Appeal during a first appeal is to conduct Page 15 of 22

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a fresh and exhaustive re-evaluation of the evidence on the record to arrive at its own independent factual and legal conclusions. Because a first appeal is an appeal on both facts and law, the court acts as a court of review with vast remedial powers, though it must operate under clear structural limits. The overarching role of a first appellate court was famously crystallized in the locus classicus East African case of Selle and Another vs. Associated Motor Boat Company Ltd & Others [1968] EA 123. Under this framework, the Court of Appeal must: (a) Subject the record to fresh scrutiny. The Court cannot simply rubber-stamp the decision of the trial judge. It must read the transcripts, examine the admitted documents, and weigh the arguments independently. (b) Exercise caution regarding demeanor. The Court must constantly keep in mind that it did not see or hear the witnesses live. Consequently, it gives due allowance to the trial judge's impressions of witness credibility unless those impressions contradict the objective Page 16 of 22

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probabilities of the case. (c) Overturn wrong findings. If the Court of Appeal finds that take into account the vital Page 17 of 22 trial judge failed to

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circumstances, misread the evidence or drew an un objective conclusion, it is under a duty to disregard those findings and substitute them with its own. (See General & Another vs. Hussein & 3 Others (Civil Appeal 100 (ELD NO. 32) of 2018) [2025] KECA 1022 (KLR) (5 June 2025) (Judgment)). 11. The concept of a customary trust over family land is recognized as an unregistered "overriding interest" under Section 28 of the Land Registration Act, 2012. This Court and the Supreme Court have established a strict threshold for proving that a registered proprietor holds land in trust for other family members. A trust is a question of fact that must be strictly proved. Courts will never presume a trust merely because the parties are related. (See Roche vs. Roche & Another (Civil Appeal 177 of 2019) [2025] KECA 1637 (KLR) (3 October 2025) (Judgment)). 12. While rooted in early Court of Appeal decisions like Mumo vs. Mueni [2002] 1 EA 170 (CAK), the definitive five-part threshold was affirmed by the Supreme Court in the Page 18 of 22

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landmark case of Isack M'inanga Kiebia vs. Isaaya Theuri M'Lintari & Another [2018] eKLR, in which it held that for a customary trust Page 19 of 22

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to be established, what is essential is the nature of the holding of the land and the intention of the parties. The Court enumerated five elements to be considered: a) The land in question was, before registration, family, clan or group land; b) The claimant belongs to such family, clan, or group; c) The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous; d) The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances; e) The claim is directed against the registered proprietor who is a member of the family, clan or group. 13. This Court in Mumo vs. Mueni (supra) held that the existence of a customary trust is a question of fact. The Court ruled that the burden of proof lies squarely on the person alleging the trust. They must present cogent, consistent Page 20 of 22

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evidence showing that the initial allocation and registration of the land were intended for Page 21 of 22

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collective family use rather than individual ownership. In Roche vs. Roche & Another (Civil Appeal 177 of 2019) [2025] KECA, this Court reiterated that intention and the nature of the holding are everything. If the physical land serves a critical collective family purpose, such as containing the ancestral family homestead, burial sites, or common shared infrastructure, a customary trust will be heavily inferred in favor of other family members, regardless of who holds the title deed. 14. However, the Supreme Court in Isack M'inanga Kiebia vs. Isaaya Theuri M'Lintari & Another [supra] cautioned that: "Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land." 15. We have carefully re-evaluated the evidence on record. The Page 22 of 22

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appellants' case rests heavily on the assertion that the suit Page 23 of 22

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properties formed part of the ancestral land of Silalo Chemoigut and that Kimibei Arap Kimakut was registered as proprietor merely because he was the only adult male at home during the land adjudication. To satisfy ourselves whether the learned judge properly analyzed the evidence on record and that her findings are supported by the evidence, we have carefully re-evaluated the evidence. 16. From the evidence, we note that the 1st respondent conceded that L.R. No. 478, 1023, and 1024 were family land belonging to Silalo Chemoigut. However, she consistently maintained that L.R. No. 975 was acquired solely by her late husband through his own efforts before their marriage in 1960. While we note some inconsistencies in her testimony, that is, the register for L.R. No. 975 was first opened on 1st December 1970, yet she claimed her husband had a title deed in 1960, this inconsistency, without more, does not establish a trust. It simply creates a doubt about the 1st respondent's account of acquisition, but it does not prove that Kimibei held the land in trust for his step-brothers. It is a Page 24 of 22

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firmly settled discrepancies, principle that Page 25 of 22 minor contradictions,

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or temporary memory lapses regarding exact dates do not automatically render a witness’s evidence inadmissible or unreliable. Courts recognize that human memory is fallible, and the passage of time or traumatic circumstances can distort peripheral details like calendar dates. 17. Decisions by this Court draw a sharp line between a trifling (minor) contradiction and a material (substantial) contradiction. If a witness confuses whether an event happened on a Tuesday or a Wednesday, or misremembers the exact date of a meeting or an event, the Court will generally ignore it. A contradiction becomes fatal only when it goes to the very root or foundation of the case. For example, if a party claims an agreement was executed on a date when the deceased signatory was already dead, the inconsistency is material and destroys the reliability of the entire claim. (See the High Court decision in Mwandi vs. Director of Public Prosecution (Criminal Appeal E098 of 2023) [2026] KEHC 5226 (KLR) (24 April 2026) (Judgment)). Page 26 of 22

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18. The appellants' evidence of occupation of L.R. No. 975 by their mother, brother and sister-in-law and the burial of their brother on the land, while indicative of family connection, does not, on its own, prove the nature of the holding or the intention of Kimibei to hold the land in trust. We say so because while Kenyan courts protect customary trusts as overriding interests, they have consistently ruled that mere physical occupation of land, blood/familial ties, or the burial of relatives on a property does not automatically establish a trust. To displace a registered title, a claimant must prove the fundamental legal elements of a trust, specifically the element of intention rather than relying solely on sentimental or physical presence. 19. This Court in David Charo Baya & 3 Others (Suing on their own behalf and as personal representatives of the Estate of Katana Gunga Baya (Deceased)) vs. Robert Kaingu Gunga [2026] KECA 899 (KLR), a landmark decision, directly addressed the trend of using long-term familial Page 27 of 22

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residency to challenge legal titles. The Court firmly rejected a customary trust claim where land the appellants argued that because Page 28 of 22 the

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belonged to their grandfather and had been occupied communally by the family for decades, a trust must exist. The court ruled that family occupation and blood ties alone are not enough to prove a customary trust over registered land. The court placed heavy emphasis on the absence of a "critical element: intention". Without minutes of family meetings, adjudication records, or structural evidence of a fiduciary arrangement, physical occupation cannot defeat a registered title. As was held by the Supreme Court in Isack M'inanga Kiebia (Supra), what is essential is the nature of the holding and the intention of the parties. Therefore, this appeal will stand or fall on one germane issue, that is, whether the appellants demonstrated by way of evidence, the existence of a trust. 20. It is not in dispute that L.R. No. 1024 was allocated to Kimibei's household (the 2nd house) at first registration. The appellants, who belong to the 1st and 3rd houses, are in essence seeking to re-open the distribution that occurred in 1970. The appellants' own evidence, particularly PW1's crossPage 29 of 22

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examination, confirms that his grievance is that, the distribution of parcels was not Page 30 of 22

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equal. When questioned, PW1 stated: "The parcels of land are not equal. They should be redistributed." This is fundamentally different from a claim that Kimibei was registered to hold the land in trust for his step-brothers. 21. The Tribunal proceedings relied upon by the appellants are of no assistance. The tribunal's recommendations did not make any finding of trust. Moreover, the tribunal lacked jurisdiction to determine issues touching on registered land by virtue of Section 3 of the Land Disputes Tribunal Act (repealed). The trial court was correct in according these proceedings limited evidentiary weight. In any event, the tribunal's recommendations were never implemented and cannot, in themselves, create a trust. 22. The appellants' reliance on the case of Mbu Mukangu vs. Gerald Mutwiri Mbu, HCCCA No. 281 of 2000 is misplaced. In that case, the Court of Appeal found that a customary trust arose from the fact that the land in question was ancestral land and the registered proprietor held it for the benefit of Page 31 of 22

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other family members. However, in the present case, the appellants failed to establish that L.R. No. 975 was ancestral land, as the Page 32 of 22 1st

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respondent consistently denied this and the appellants did not adduce sufficient evidence to rebut her testimony. Furthermore, the appellants failed to establish the intention of Kimibei to hold the land in trust. 23. Accordingly, we find no merit in the appellants' contention that the trial judge misapprehended their claim as one of express trust rather than customary/implied trust. The trial judge at paragraphs 65 to 72 of her judgment correctly framed the issue of trust and applied the correct legal principles from Mumo vs. Makau and Isack M'inanga Kiebia. The judge properly noted that the issue of trust was "brought out in the plaintiffs' pleadings and the written submissions but not in the evidence adduced in court." This is a critical finding that is amply supported by the record. 24. The appellants' claim that Kimibei took advantage of his brothers' absence to register the land in his name is speculative and unsupported by evidence. While it is plausible that Kimibei registered the land as the only adult male at Page 33 of 22

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home, the appellants did not adduce any evidence to show that the registration was Page 34 of 22

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intended to be for the benefit of the other houses. The mere fact of registration by one family member during adjudication does not automatically create a customary trust. The Supreme Court in Isack M'inanga Kiebia emphasized that the claimant must prove the nature of the holding and the intention of the parties. 25. The appellants' claim that the respondents breached the trust by distributing the suit properties to strangers is predicated on the existence of a trust, which we have found has not been established. Since the appellants failed to prove the existence of a trust, the question of breach of trust does not arise. 26. The appellants' reliance on Section 28 of the Land Registration Act, which recognizes customary trusts as overriding interests, is well-founded in law. However, the section only protects trusts that are proved to exist. It does not create a trust where none is proved. The appellants must first establish the existence of a customary trust before they can claim protection under Section 28. As we have found that no trust was proved, Section 28 Page 35 of 22

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does not avail them. Page 36 of 22

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27. The appellants have failed to discharge the burden placed upon them by the law to prove the existent of a trust, which is an issue of fact. Their evidence consisted largely of assertions of family connection and occupation, but they failed to prove the nature of the holding and the intention of Kimibei to hold the land in trust. The trial court was therefore correct in finding that the appellants had failed to prove their case on a balance of probabilities. 28. Having carefully re-evaluated the evidence, we are satisfied that the trial court correctly found that the appellants failed to prove the existence of a customary or implied trust over the suit properties. The trial court's finding that the appellants' claim was, at its core, a complaint of unequal distribution of their grandfather's estate is well supported by the evidence. Such a claim cannot be sustained by way of a declaration of trust. 29. We further note that the trial court's evaluation of the evidence was thorough and comprehensive. The court considered the testimony of all witnesses, assessed the Page 37 of 22

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credibility of the evidence, and applied the correct legal principles. The court properly recognized that possession or occupation alone is Page 38 of 22

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insufficient to establish a trust and that the appellants had failed to adduce evidence of the intention of the parties or the nature of the holding. 30. The Supreme Court's decision in Isack M'inanga Kiebia was considered and followed by the trial court. The trial court's finding that the appellants failed to meet the threshold set by the Supreme Court is well-founded and consistent with the law. The trial court's finding that the appellants' claim was, at its core, a complaint of unequal distribution of their grandfather's estate is well supported by the evidence. Such a claim cannot be sustained by way of a declaration of trust. In the circumstances, we find no basis to interfere with the findings of fact made by the trial court. The appellants have not demonstrated any error of law or fact warranting the intervention of this Court. 31. Accordingly, we find that this appeal is devoid of merit and dismiss it in its entirety. The judgment and decree of the Environment and Land Court at Kericho delivered on 18 th November 2021 in ELC No. 56 of 2015 is hereby upheld. Page 39 of 22

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The Page 40 of 22

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appellants shall pay the respondents' costs of this appeal and those of the court below. Dated and delivered at Nakuru this 25th day of September, 2026. J. MATIVO ............................ .... JUDGE OF APPEAL MURUNGI B. KAIRARIA ............................ .... JUDGE OF APPEAL AHMED ISSACK ............................ .... JUDGE OF APPEAL I confirm that this is a true copy of the original Signed. DEPUTY REGISTRAR. Page 41 of 22

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