(Being an appeal from the judgment of Hon. R.B.N Maloba, Principal Magistrate, delivered on 1st November, 2019 in Homa Bay Chief Magistrate’s Court Environment and Land Case No. 4 of 2018 as consolidated with Homa Bay Chief Magistrate’s Court Environment and Land Case No. 198 of 2012.)JUDGMENT
1.This appeal arose from the trial court’s judgmentdelivered on the 1st November, 2019 by the Honourable R.B.N Maloba, Principal Magistrate, in Homa Bay Chief Magistrate’s Court Environment and Land Case No.s 4 of 2018 where she reasoned, inter alia;
2.The appellant namely Osimbo Oyoyo through the firm of Nyauke and Company Advocates mounted the appeal by way of a memorandum of appeal dated 20th November 2019. The Appeal is anchored on grounds 1 to 11 as set out on the face thereof. I find it superfluous to reproduce the grounds which are compressed as stated in paragraph 8 (infra).
3.Wherefore, the appellant has sought the orders that the judgment of the trial court be quashed and set aside with costs to the appellant.
4.The appeal was transferred to this court from Migori Environment and Land Court on 27th October 2021. A supplementary record of appeal dated 6th April 2022 was filed herein on 7th April 2022.
5.The appeal was heard by way of written submissions pursuant to this court’s directions of 1st March 2022.
6.Accordingly, the appellant’s counsel filed submissions dated 12th April 2022 and filed on 13th April 2022. Counsel identified five (5) issues for determination. In discussing the issues, learned counsel submitted, inter alia, that the learned trial magistrate erred in law and in fact by holding that the original suit parcel of land number Kanyada/Kotieno/Katuma “A”/1271 was family land while at the same time conceding that it was not an ancestral land. Counsel relied on various authorities including the case of Alice Wairimu Macharia –vs- Kirigo Philip Macharia (2019) eKLR, to buttress his submissions.
7.Learned counsel for the respondents filed submissions dated 11th July, 2022 on 13th July, 2022. Counsel submitted that the appeal is incompetent for failure to abide by the provisions of Order 42 of the Civil Procedure Rules, 2010. Counsel further submitted that the appeal lacks merit. Counsel relied on various authorities including the case of Isack M’Inanga Kiebia –vs- Isaaya Theuri M’lintari & Another (2018) eKLR, to fortify the submissions.
8.In the foregone, the issues for determination are as captured in the grounds of appeal and are condensed thus: whether there is emergence of a customary trust in the matter and whether the trial court relied on written evidence and the law in reaching its findings.
9.It is important to note that the instant appeal being the first one from the trial court in the matter, this court is obliged to review the record of the trial court, evaluate it and arrive at its own conclusions herein; see Mwanasokoni-vs Kenya Bus Services Ltd 1982-88 1KAR 278 applied in the case of Titus Ong’ang’a Nyachieo-vs-Martin Okioma Nyauma and 3 others 2017 eKLR.
10.Initially, the suit was commenced by way of a plaint dated 6th November 2014 and amended on 27th July 2019 pursuant to leave of the court granted on 26th July 2017 and filed in court on 30th October 2017 for the following orders;a.Declaration that the defendant holds the whole of L. R. No. Kanyada/Kotieno/Katuma 1271 (now sub-divided), on trust for the plaintiffs.b.Declaration that the sub-division of L. R. No. Kanyada/Kotieno/ Katuma 1271 into L. R. Nos. Kanyada/Kotieno/Katuma 2122 (now sub-divided into L. R. Nos. Kanyada/Kotieno/Katuma 2238 & 2239) and 2123, respectively, was unlawful, irregular, illegal, fraudulent and void for all intent and purposes.c.An order of cancellation of the titles in respect of L. R. No. Kanyada/Kotieno/Katuma 2122 (now sub-divided into L. R. Nos. Kanyada/Kotieno/Katuma 2238 & 2239) & 2123, respectively and rectification of the register in respect of L. R. No. Kanyada/Kotieno/Katuma 1271, with a view to re-instating and/or restoring the title in respect of the suit property.d.An order for the sub-division of L. R. No. Kanyada/Kotieno/Katuma 1271 into seven (7) equal portions in the manner of occupation and the portions in occupation by the plaintiffs be transferred and registered to and in favour of the plaintiffs.e.In default, the deputy registrar of this honourable court be ordered and/or at liberty to sign the relevant mutation, consents and transfer documents to facilitate compliance with orders in (d) above.f.Permanent injunction restraining the defendant either by himself, agents and/or servants from selling, sub-dividing, alienating, charging, encumbering and/or in any other manner, whatsoever, interfering with the title in respect of L. R. No. Kanyada/Kotieno/Katuma 1271.g.Costs of this suit be borne by the defendant.h.Such further and/or other relief as the honourable court may deem fit and expedient so to grant.
11.PW1 who was the 2nd plaintiff, Ishmael Oyoyo (the 2nd respondent herein) before the trial court, testified on 3rd September, 2018. He stated that the suit land was registered in the names of the defendant/appellant who was to hold the same in trust for the benefit of himself and the plaintiffs. Instead, the defendant started disposing of the land in 2012. That family members are buried on the land. He produced in evidence a copy of green card for parcel no K/K/K ‘A’/1271, copy of green card for parcel no K/K/K ‘A’/2238 and copy of minutes dated 23rd November 2011 (PExhibits 1 to 3 respectively).
12.PW2, Hellen Opiyo, testified on 29th October, 2018 and adopted her statement dated 6th November, 2014 as part of her evidence. She stated that her late husband left the suit land to her but she is not presently in occupation as the appellant chased her from the same.
13.PW3, Abiud Ooko Kawawo, too, testified on 29th October, 2018. He stated that indeed, the appellant had been registered as the proprietor of the suit land to hold it on behalf of the other family members in 1978. The appellant, however, started dividing the land and selling it to 3rd parties.
14.In the statement of defence dated 15th December 2014 and filed on 17th December 2014, the defendant Osimbo Oyoyo (Appellant herein) denied the claim. He then sought dismissal of the suit with costs.
15.The testimonies of PW1, PW2 and PW3 firmly point to the appellant’s holding of the suit land in trust for the family; see Mumo case (infra).
17.The evidence of DW1 was that the suit land was registered in his name in 1978 following adjudication as he was the buyer. He admitted that there was no sale agreement thereof but that he gave the vendor a boat as consideration for the land.
18.Clearly, DW1 deliberately failed to enter into a written agreement as required under Section 3(3) of the Law of Contract Act, Chapter 23 Laws of Kenya. He was not a bona fide buyer in the circumstances as noted in the case of Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura –vs- A.G. & 4 others (2017) eKLR.
19.In arriving at the impugned judgment, the learned trial magistrate observed at page 13 of the judgment, inter alia;
20.The learned trial magistrate further noted at page 14 thus:
21.It is important to note that the learned trial magistrate stated the parties’ respective cases in the consolidated cases, framed issues for determination, analysed them and arrived at her decision based on reasons. So, the impugned judgment complied with Order 21 Rule 4 of the Civil Procedure Rules, 2010.
22.Article 10 (2) (b) of the Constitution of Kenya, 2010 anchors the principles of equity. No doubt, trust is envisioned thereunder.
23.I endorse the decision in the case of Mwangi-vs-Mwangi and another (1986) KLR 328 that a trust created over registered land is an equitable right thereon. That its existence need not to be referred to in the title document
24.Section 3(2) of the Judicature Act Chapter 8 Laws of Kenya on application of customary law provides thus:
25.Customary trust is a question of fact to be proved by evidence; see Mumo-vs-Makau (2002) 1 EA 170.
26.It is trite that some of the elements that would qualify a claimant as a trustee include; that the land in question was before registration, family land and that the claimant belonged to that family, clan or group; see Isack Kiebia-vs-Isaaya M’Lintari (supra).
27.Section 28 of the Land Registration Act, 2016 (2012) recognizes customary trust. It is an overriding interest in any registered land as envisioned under Section 25 of the same Act.
28.The rule of evidence is that “He who alleges must prove”. This is founded under Section 107 of the Evidence Act, Chapter 80 Laws of Kenya. On that account, did the respondents discharge this duty before the trial court as held in Ahmed Abdulkarim v Member for Lands and Mines  EA 436 at 441?
29.Bearing in mind the entire evidence on record in this case, and applying the facts of the case as well as legal principles stated above, it is clear that the respondents who were the plaintiffs before the trial court proved the existence of customary trust over the suit land. They proved their claim to the requisite standard as noted in Abdulkarim Case (supra). Therefore, the grounds of appeal are untenable.
30.In conclusion, it is the finding of this court that the learned trial magistrate’s judgment is sound at law. I hereby uphold the same.
31.In the result, the instant appeal is hereby dismissed with costs to the respondents.
32.Orders accordingly.G.M.A ONG’ONDOJUDGEDelivered, dated and signed at Homa-Bay this 20th day of July 2022.
2.Mr. D. Adawo holding brief for Ochwal, learned counsel for the respondents
3.Ms. Odera for the appellant
|HOMA BAY ELC APPEAL NO. 39 OF 2021- JUDGMENT