Court
Court of Appeal of Kenya at Malindi (Murgor, Laibuta & Ngenye JJ.A.) delivered on 15th day of May 2026
Facts
The dispute concerned parcel No. Kilifi/Chilulu/269, which the Appellants claimed was ancestral family land originally owned by their grandfather, Gunga Baya alias Kosho, who had four wives. According to the Appellants, each wife’s household occupied a distinct portion of the land in accordance with customary arrangements and lived peacefully within long-established family boundaries.
Following the death of Gunga Baya, the late Katana Gunga Baya, being the eldest son, assumed responsibility as family head and oversaw the use and occupation of the land. During land adjudication in 1978, the land was registered jointly in the names of the late Katana Gunga Baya (the Appellants’ father) and the Respondent, Robert Kaingu Gunga, who were siblings.
The Appellants argued that the registration in the names of the two brothers was not intended to confer absolute ownership but was done for convenience and representation of the wider family. They contended that the two held the land in customary trust for all descendants of the Gunga family and sought subdivision according to customary boundaries.
The Respondent denied the existence of any trust and maintained that registration gave each brother a legally distinct proprietary share as co-owners. He asserted that each family branch occupied its own separate area and that the Appellants could only claim through their father’s estate and not against his share.
Issue
Whether the registration of land in the names of two siblings as tenants in common created a customary trust in favour of the wider family or vested distinct personal proprietary interests in the registered proprietors.
Holding
The Court of Appeal dismissed the appeal and upheld the trial court’s finding that the Appellants had failed to prove the existence of a customary trust on a balance of probabilities.
The Court held that although the land may originally have been family land before adjudication, the Appellants failed to establish the critical element of intention to create a trust at the time of registration. The Court found that the registration expressly showing the deceased and the Respondent as tenants in common, each holding a one-half share, reflected separate legal ownership rather than a fiduciary arrangement.
Distinction Between Customary Interest and Personal Interest in Land
Customary Interest in Land
The Court reaffirmed that a customary trust is an overriding interest capable of subsisting even after registration of land and need not be reflected in the register. Under Sections 25 and 28 of the Land Registration Act, a registered proprietor’s title remains subject to overriding interests including customary trusts.
The Court adopted the principles in Isack M’Inanga Kiebia v Isaaya Theuri M’Lintari & another and emphasized that for customary trust to exist, there must be proof that the land was ancestral or family land before registration, that the claimant belongs to the relevant family or clan, and most importantly, that there was an intention during adjudication or registration that the registered proprietor would hold the land for the benefit of others.
The Court stressed that family relationship, long occupation, or historical use alone do not automatically establish customary trust. The existence of trust must be proved through evidence demonstrating intention.
Personal Interest in Land
The Court distinguished personal proprietary interest as arising where registered proprietors possess legally distinct ownership rights for their own benefit rather than on behalf of others.
In the instant case, registration of the two brothers as tenants in common, each holding a one-half share, reflected an intention to create separate proprietary rights and not a trust arrangement. The Court held that where siblings are registered as tenants in common with defined shares, this generally signifies distinct ownership interests unless evidence demonstrates otherwise.
Court’s Reasoning on Registration of Two Siblings
The Court explained that registration of siblings as co-owners does not automatically imply customary trust. The legal consequence depends on the form and intention of registration.
Because the register expressly recorded the deceased and the Respondent as “proprietors in common, each holding one half share,” the Court held that the legal implication was that each held a distinct proprietary interest. This form of registration rebutted and ousted the alleged presumption of trust, since it indicated a deliberate arrangement during adjudication to divide ownership between the brothers.
The Court therefore concluded that the registration structure itself contradicted the argument that the brothers held the land for the wider family.
Burden of Proof
The Court reiterated that the burden of proving customary trust lies on the party alleging its existence. The Appellants bore the obligation of proving through evidence that the land was intended to be held for the wider family and that the registered proprietors acted as trustees.
The Court held that trust cannot be presumed merely because parties are related or because the land was once family land.
Evidentiary Deficiencies in the Appellants’ Case
The Court found that the Appellants failed to produce adjudication records, minutes of adjudication proceedings, committee records, witnesses from the adjudication process, or any documentary evidence showing an agreement or intention to create trust during registration.
Although the Appellants relied on an adjudication receipt in the name of “Katana Gunga & Others,” the Court held that payment of adjudication fees by one or several family members was not conclusive evidence of trust. Such payment only suggested that the land may have been regarded as family land but did not prove that registration was intended to benefit the wider family.
Occupation and Overriding Interest
The Court also rejected the argument that the Appellants’ long occupation of portions of the land automatically established a legal interest overriding the Respondent’s title.
It held that occupation without proof of a legal or equitable right could not override registered ownership. Long occupation only becomes relevant where it demonstrates a recognized customary arrangement or intention to hold land in trust.
Effect of Tenancy in Common
The Court relied on Section 91 of the Land Registration Act and emphasized that in a tenancy in common, each proprietor owns a separate undivided share in the whole property and there is no right of survivorship.
Consequently, the late Katana Gunga Baya’s one-half share devolved to his estate, while the Respondent retained his own separate one-half share. The Appellants were therefore only entitled to claim through their deceased father’s estate and not the Respondent’s portion.
Ratio Decidendi
Where siblings are registered as tenants in common with defined shares, such registration ordinarily denotes distinct personal proprietary interests and may rebut an allegation of customary trust unless there is clear evidence that the parties intended the registered proprietors to hold the land for the benefit of the wider family.
Principle Established
The case establishes that customary trust survives registration only where intention is proved through evidence. Courts will not infer trust merely because land is ancestral, family members occupy it, or parties are related. Where registration expressly creates tenancy in common with defined shares, the law leans toward recognition of personal proprietary interests rather than customary trust, unless compelling evidence proves otherwise.
Authorities Relied Upon by the Court
The Court relied on Mbui Mukangu v Gerald Mutwiri Mbui, Isack M’Inanga Kiebia v Isaaya Theuri M’Lintari & another, Peter Ndungu Njenga v Sophia Watiri Ndungu, Muthuita v Muthuita, and Juletabi African Adventure Limited & Another v Christopher Michael Lockley to reaffirm that trust must be supported by clear evidence of intention and cannot be implied solely from family occupation, ancestry, or relationship.
