Henry Odende v Thomas Sawanda, George Ochillo & Land Registrar, Siaya County

between his two wives; the Page 2 of 15

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right-hand portion reserved for the house of the late Dishon Otieno Odongo and the left-hand portion for the house of the 1st respondent, Thomas Sawanda Odongo. The appellant's case was that, during the land adjudication and registration process in 1967, the suit property was registered solely in the name of the 1 st respondent because both brothers were away working in Nakuru; and that the 1st respondent consequently held the land in customary trust for both families in equal shares. 2. It was further alleged that the 1 st respondent in breach of that trust purported to alienate portions of the land to George Ochillo, the 2nd respondent and other third parties; and allowed construction on the portion historically occupied and cultivated by the appellant's family. On that basis, the appellant sought a declaration that one-half of the suit property was held in customary trust for the estate of the late Dishon Otieno Odongo, an order for partition and subdivision of the land into equal shares, and a permanent injunction restraining the respondents from interfering with the appellant's beneficial interest. Page 3 of 15

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3. The respondents denied the existence of any customary trust and maintained that the 1st respondent was the absolute and indefeasible proprietor of the suit property by virtue of first registration. They contended that the land was lawfully registered in the 1st respondent's name without fraud, mistake or any trust obligation, and denied the existence of any agreement or understanding for subdivision between the parties. The 1 st respondent asserted his entitlement, as registered proprietor, to deal with the land as he deemed fit, including transferring portions thereof to the 2nd respondent. The 2nd respondent, for his part, maintained that he was a bona fide purchaser for value without notice of any alleged customary trust and was therefore lawfully entitled to occupy, fence and develop the portion he had acquired. The Respondents further contended that the appellant's occupation of the land and the lodging of cautions against the title amounted to unlawful interference with the 1st respondent's proprietary rights. 4. By way of counterclaim, the 1st and 2nd respondents sought dismissal of the appellant's suit; a declaration that the appellant had no legal or beneficial interest in the suit Page 4 of 15

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property; an order for the appellant's eviction together with the removal of any unauthorized structures; an order directing the Land Registrar to remove the cautions lodged against the title; and a permanent injunction restraining the appellant from entering upon, occupying or otherwise interfering with the suit property. They also prayed for costs of the suit and the counterclaim. 5. In its decision, the trial court found that the appellant had failed to prove, on a balance of probabilities, that the 1st respondent held Land Parcel No. North Gem/Maliera/876 in customary trust for the estate of the late Dishon Otieno Odongo. The court found that the evidence did not establish the essential elements of a customary trust; that the suit property was first registered in the name of the 1 st respondent and that no fraud, misrepresentation or other circumstance had been proved to impeach that title. However, the court also found that the appellant's family had long occupied portions of the suit property alongside the 1st respondent’s family and could not therefore be regarded as trespassers. On that basis, the trial court dismissed both the appellant's claim for declaration of trust, subdivision and injunctive relief, and the Page 5 of 15

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1st and 2nd respondents' counterclaim for eviction, with each party ordered to bear their own costs. 6. Aggrieved by the decision of the trial Court, the appellant pursued an appeal at the Environment & Land Court in Siaya. Upon a fresh evaluation of the record, the learned Judge found that the appellant had failed to establish any error in the trial court's findings warranting appellate intervention. The learned judge held that the appellant had not discharged the burden of proving the existence of a customary trust over Land Parcel No. North Gem/Maliera/876; that the 1st respondent's title, acquired upon first registration, had not been shown to be subject to any trust or other overriding interest; and that the appellant's evidence was insufficient to displace the statutory protection afforded to the registered proprietor under sections 24 and 25 of the Land Registration Act. The court further observed that the appellant's family's occupation of the suit property and their relationship to the 1 st respondent, without more, could not establish a customary trust. Accordingly, the appeal was dismissed, the judgment of the trial court was affirmed, and costs were awarded to the 1 st Page 6 of 15

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and 2nd respondents. Page 7 of 15

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7. In an orbiter, the learned Judge noted that the 9 grounds of appeal relied on by the appellant fell short of the requirements of Order 42 Rule 1 (2) of the Civil Procedure Rules as they were argumentative and not concise. 8. Undeterred, the appellant has sought a further bite of the cherry and is now before this Court on a second appeal which is anchored on 13 grounds contained in his Memorandum dated 29th November 2024. The appellant challenges the judgment of the learned 1st appellate Judge on both procedural and substantive grounds, contending that the court failed to properly discharge its mandate as a first appellate court. It is argued that the learned Judge erred in finding the Memorandum of Appeal to be defective failed to adequately consider the grounds of appeal, the parties before the court, and the reliefs sought, and consequently misdirected herself determination; that court the on did the not issues for undertake a comprehensive re-evaluation of the evidence on record, improperly applied the burden and standard of proof under the Evidence Act, and erroneously concluded that the claim for customary trust had not been established. It is also asserted that the learned Judge misapplied the principles Page 8 of 15

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enunciated in Kiebia v M’lintari & another [2018] KESC 22 (KLR) where the court ruled that registration of land does not extinguish family or traditional rights, recognizing customary trusts as valid overriding interests; and set out the core principles that would qualify a claimant as a trustee are: 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.); and failed to properly interpret the effect of sections 24 (a) and 25 of the Land Registration Act. Finally, the appellant maintains that the court failed to appreciate the evidence concerning the ancestral character of the suit property, the circumstances surrounding its first registration, and the parties' long-standing joint occupation and possession of the land, all of which, it is contended, established the existence of a customary trust in favour of the appellant's family. Page 9 of 15

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9. In support of his case, the appellant relied on his submissions asserting that the learned Judge erred in dismissing the appeal on procedural grounds i.e. Order 42 Rule 1 (2) of the Civil Procedure Rules and in failing to determine the dispute on its substantive merits. It was argued that the learned judge failed to properly discharge the duty as a first appellate court, as there was no independent re-evaluation of the evidence, thereby wrongly finding that the claim of customary trust had not been proved. The appellant contended that the suit property was ancestral family land, and that its registration in the name of the 1st respondent was for administrative convenience and was subject to a customary trust in favour of the late Dishon Otieno Odongo’s family. In support of this position reference is made to the principles in Kiebia v M’lintari & another (supra), with the appellant maintaining that the evidence of family allocation, longstanding occupation, and subsequent conduct established the existence of such trust. The appellant therefore urged the Court to allow the appeal, set aside the decisions of the two courts below, and grant the reliefs sought. Page 10 of 15

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10. The appeal is opposed by the 2 nd respondent who relied on his written submissions and described the appeal as lacking merit; and that the courts below correctly found that the appellant had failed to prove the existence of a customary trust over the suit property. He contends that the evidence demonstrated a lawful distribution of the family land, with the 1st respondent being properly registered as proprietor of the suit parcel while the late Dishon Odongo held other parcels independently. 11. The 2nd respondent argues that customary trusts must be specifically pleaded and strictly proved, yet, that in this instance, the appellant had failed to discharge the burden imposed by sections 107 and 109 of the Evidence Act. He further maintained that the 1st respondent’s title was protected under sections 24, 25 and 26 of the Land Registration Act, and could not be defeated by mere occupation or possession, in the absence of proof of a legal interest. 12. The respondents urge this Court to find that the learned Judge properly re-evaluated the evidence and correctly upheld the trial court’s decision, and accordingly dismiss the appeal with Page 11 of 15

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costs. On a without prejudice basis, the respondents propose that the appellant’s homestead portion, if any, could be surveyed and transferred upon payment of compensation at market value. 13. This is a second appeal, and the appellate court’s duty is limited to consideration of matters of law as was set out in the case of Kenya Breweries Ltd vs Godfrey Odoyo [2010] eKLR as follows: First, this is a second appeal. In a first appeal the appellate court is by law enjoined to revisit the evidence that was before the trial court and analyse it, evaluate it and come to its own independent conclusion. In other words, a first appeal is by way of retrial and facts must be revisited and analysed a fresh. See Selle and Another vs Associated Motor Boat Company Limited and Others (1968) EA 123. In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters, they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. 14. Upon review of the record, submissions, and the applicable law, we find that the following issues of law emerge for our determination: - whether the learned judge erred by dismissing the appeal under Order 42 Rule 1(2) of the Page 12 of 15

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Civil Page 13 of 15

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Procedure Rules; and whether the appellant proved the existence of a customary trust over the suit property. 15. As regards the first issue, we take note that the learned Judge did not dismiss the appellant’s case for failure to comply with Order 42 Rule 1 (2) of the Civil Procedure, but merely observed that the grounds of appeal as elucidated by the appellant, ran afoul of the provisions therein that demand that a memorandum of appeal must state grounds of objection concisely, under distinct heads, and without argument or narrative, with consecutive numbering. The learned Judge at paragraph 12 & 13 of the impugned judgment noted thus; “12. Aggrieved by the lower court judgment, the appellant preferred an appeal to this court and raised 9 grounds of appeal in his memorandum of appeal. An examination of these grounds demonstrates they fall far short of the requirements of Order 42 Rule 1 (2) of the Civil Procedure Rules as they are unconcise and argumentative.... 13. The appellant appreciated the shortcomings of his memorandum of appeal and in his submissions dated 11/3/2024, he consolidated his grounds of appeal into a singular ground; whether the learned trial magistrate erred in finding the appellant had failed to prove his claim of customary trust. In my view, this is a suitable ground for appeal.” 16. The assertion that this was the basis upon which the Page 14 of 15

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learned Judge dismissed the appeal is with greatest of respect, in our Page 15 of 15

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considered view, misplaced as the learned Judge proceeded to consider the appeal and whether the appellant has satisfied his claim. Consequently, we find that this limb of the appeal lacks merit. 17. As regards proof of existence of customary trust, this is a recognized legal principle, especially in cases where land is passed down through generational inheritance within communities. Indeed the Supreme Court of Kenya, in Kiebia v M’lintari & another (supra), outlined four key elements necessary to establish a customary trust: the land must have been historically owned by the claimant’s lineage or family, meaning it should have been passed down through generations as part of traditional inheritance; the claimant must prove that he was entitled to the land under customary law practices, demonstrating that he had a recognized right to possess or use the land according to communal traditions; Additionally, the registered owner must have acquired the land subject to the customary rights of others, meaning that even though they hold title to the land, they must have acknowledged the existing customary claims over it at the time of registration; lastly, Page 16 of 15

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the claimant must show continued Page 17 of 15

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occupation or possession consistent with the alleged trust, proving that his presence on the land has not been interrupted and aligns with the customary arrangement under which he claims ownership. 18. However, the burden of proving a customary trust falls on the party alleging it, as reaffirmed in the case of Mbui Mukangu v Gerald Mutwiri Mbui [2004] eKLR. 19. In the present instance, the appellant relies on the argument that the suit property was ancestral family land allocated by their late grandfather between the two-family houses, with the respective portions reserved for the families of the late Dishon Otieno Odongo and the 1st respondent. He contended that the 1967 first registration of the land solely in the name of the 1 st respondent, while both brothers were away working in Nakuru, was undertaken subject to a customary trust in favour of both families. 20. The appellant relied occupation and use on of evidence a portion of of long-standing Parcel No. 876 by the family of the late Dishon Otieno Odongo, as well as a 1989 family arrangement allegedly recognizing the division of the land between the two-family branches. The appellant Page 18 of 15

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further relied on cautions, restrictions and administrative correspondence as evidence of efforts to safeguard the claimed beneficial interest. 21. The respondents maintain that the 1st respondent was the sole registered proprietor of the suit property following the 1967 first registration and that no customary trust was created or intended. Relying on the title documents and adjudication records as proof of absolute ownership free from any trust or encumbrance, the respondents contend that the appellant’s occupation was permissive and did not create any proprietary entitlement; and that despite the allegation that both the appellant and 1st respondent were absent during adjudication, their wives were present as confirmed by the testimony of Gilbert Omolo, DW3. That during the same adjudication, the 1 st respondent was registered as the sole proprietor over the suit land herein while other parcels, (such as Parcel Nos. 851, 852, 884, and 887) were available or allocated to the other branches of the family. This evidence was not rebutted at all by the appellant. We are in agreement with the learned Judge that the burden shifted to the appellant once his claim of existence of customary trust was disputed with evidence Page 19 of 15

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from Page 20 of 15

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the respondents and failure to discharge this burden rendered his claim moot. In our view therefore the appellant’s claim did not satisfy the threshold set by judicial precedents already referred to. Consequently, the two courts below correctly dismissed the claim. 22. In the circumstances, we find no fault in the judgments of the trial court and the ELC, whether in application of the law or legal principles and doctrines. Accordingly, the appeal lacks merit and is dismissed with costs to the respondents. Dated and delivered at Kisumu this 25th day of September, 2026. ASIKE-MAKHANDIA ..................................... .. JUDGE OF APPEAL H. A. OMONDI ..................................... .. JUDGE OF APPEAL L. KIMARU ..................................... .. JUDGE OF APPEAL I certify that this is a true copy of the original. Page 21 of 15

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Signed DEPUTY REGISTRAR Page 22 of 15

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