https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3670

Mwangi (Suing as the Legal Representative of the Estate of Joseph Mwangi Karanja) v Karanja (Environment and Land Appeal E026 of 2025) [2026] KEELC 3670 (KLR) (15 June 2026) (Judgment) Neutral citation: [2026] KEELC 3670 (KLR) Republic of Kenya In the Environment and Land Court at Muranga Environment and Land Appeal E026 of 2025 MN Gicheru, J June 15, 2026 Between Antony Karanja Mwangi (Suing as the Legal Representative of the Estate of Joseph Mwangi Karanja) Appellant and John Patrick Waweru Karanja Respondent (Being an appeal from the judgment of the Honourable Susan N. Mwangi delivered on 28th May, 2025 Murang’a CM’s ELC No. E058 OF 2023) Judgment 1.In his memorandum of appeal dated 3-6-2025, the Appellant seeks the following reliefs.a.That this appeal be allowed.b.That the Judgment and decree and any other consequential orders arising from the judgment delivered on 28-5-2025 be set aside and an order for dissolution of the existing trust, subdivision and transfer of half of Land parcel No. Loc. 12/Sub-Loc.1/241 to the Plaintiff’s family which comprises three surviving children namely Robert Njuguna Mwangi, Beatrice Wanjiru Mwangi and the Plaintiff, Antony Karanja Mwangi.c.The Appellant be awarded the costs of this appeal. 2.The Appellant has identified six grounds of appeal. The honourable trial magistrate erred in law and in fact,i.by deciding the case against the weight of the available evidence and tendered by the Appellant documentary evidence in reaching her determination,ii.by failing to appreciate that the Plaintiff’s father, the late Joseph Mwangi Karanja, was married to one wife by the name of Catherine Njeri with whom they were blessed with 5 children though two of them are now deceased;iii.by making a finding that both Catherine Wanjiru and Catherine Njeri were wives of the late Joseph Mwangi Karanja yet the Plaintiff’s father was married to one wife as per the Plaintiff’s list of documents dated 14-8-2023 and a further list dated 29-9-2025 more especially the Chief’s introduction letter, photographs and copy of eulogy produced in Court;iv.by failing to appreciate that the purported family which comprises of Joseph Irungu Wanjiru, Kenneth Ruthi Wanjiru, Lincolu Njuguna and Purity Nyokabi Mwangi have never resided on the suit land and/or utilized it in any way to date;v.by failing to appreciate the fact that the suit land is physically subdivided into two equal portions where each family resides and cultivates its respective portion, to date, i.e. the Plaintiff’s family and the family of the Defendant; andvi.by failing to appreciate that the Plaintiff’s parents namely Joseph Mwangi Karanja and Catherine are both buried on the suit land and their graves are still noticeable. 3.The facts of the case according to the Appellant who was the Plaintiff in the lower court case are as follows. Firstly, his late father Joseph Mwangi Karanja and the Respondent are brothers and their parents were the late Karanja Litu and his wife Rebecca Gathoni. Secondly, his grandfather Karanja Litu owned L.R. No. Loc.12/Sub-Loc.1/241 which was registered to his name on 9-4-1962. Thirdly, the Respondent filed a succession cause No. 2116 of 1999 in Nairobi in order to succeed his father and got registered as the owner of the suit land. Fourthly the suit land is encumbered by a customary trust and the registration of the Respondent as the proprietor of the suit land did not in any way affect or dissolve the trust. Fifthly, the Appellant’s family was well as the Respondent’s family were all born and brought up on the suit land and that is where they reside. Further to the above, Karanja Litu and Rebecca Gathoni physically subdivided the suit land into two equal portions for their two sons. Sixthly, the Appellant has on various occasions since the death of his father on 28-6-2008 asked the Respondent to subdivide the suit land into two equal portions but he has refused making the filing of the lower court suit necessary. In the suit he sought for the declaration of a customary trust, its dissolution and the transfer of half of the suit land to himself. 4.The facts of the case according to the Respondent are as follows. Firstly, he is in agreement with the Appellant in most of what he says. He holds half of the suit land in trust for his brother Joseph Mwangi Karanja, the Appellant’s father. The only problem is that it is not only the Appellant who is entitled to the half of the suit land. The Appellant’s father had two wives Catherine Njeri Mwangi and Catherine Njeri Kamingi. The first wife had four children who are Josphat Irungu Wanjiru, Kenneth Ruthi Wanjiru, Lincoln Njuguna and Purity Nyokabi while the Appellant’s mother had five children who are Robert Njuguna Mwangi, Joseph Kimani Mwangi, Grace Wangeci Mwangi, Beatrice Wanjiru Mwangi and Antony Karanja Mwangi, the Appellant.The Appellant’s father was in support of the idea that the Respondent be registered as the trustee for the family of the Appellant’s father. Finally, the matter was taken for arbitration before the Assistant County Commissioner, Muguru, and it was concluded that the Appellant’s father had two wives and the suit land should be subdivided in such a manner that all children of the Appellant’s father get a share. The Appellant thwarted all such plans and dared the Respondent to subdivide the land that way. The Respondent is willing to subdivide the land and transfer the parcels to all the rightful beneficiaries but the Appellant does not want the family of the first wife to set their rightful share. 5.In her judgment , the learned trial magistrate dismissed the Appellant’s suit for the following reasons. Firstly, she found that the Appellant was unable to prove that his father had only one wife. He was born in 1976 and raised in Nairobi. He only moved to the suit land after the death and burial of his father. The learned trial magistrate found the Appellant’s evidence to be largely hearsay. 6.Counsel for the parties filed written submissions dated 31-3-2026 and 29-4-2026 respectively. The following issues were identified for determination in this appeal.i.Whether the Appellant’s late father, Joseph Mwangi Karanja was only married to one wife by the name Catherine Njeri or not.ii.Whether the Appellant’s late father was married to two wives.iii.Whether residing on the suit land and the parental burial site being on the suit land can be the only basis for determining who is the right owner in a customary trust.iv.Whether subdividing the suit land into only two parcels is proof that the Appellant’s father had only one wife. 7.I have carefully considered the appeal in its entirety including the record, the grounds, the written submissions, the issues framed therein and the law cited. This being a first appeal, this Court has a duty to reconsider, re-evaluate and analyse the evidence on record and draw its own independent conclusions, while bearing that it did not see or hear the witnesses testify and should therefore give due allowance to the trial court’s advantage in assessing witness demeanour. See Selle vs. Associated Motor Boat Co. Ltd [1968] EA, 123. Bearing in mind the above, I find as follows on the four issues identified above. 8.Beginning with the first issue, I find that the trial magistrate was right in finding that the Appellant’s father was married to the two wives and not only one. It is difficult for the Respondent to have come up with a false narrative of his brother’s first wife and children if they never existed. He had no reason for coming up with such a narrative. This narrative by the Respondent is supported by two sons of the first wife and the Assistant County Commissioner who presided over the dispute. All these witnesses could not have been talking about an imaginary first wife who never existed.I am in agreement with the learned trial magistrate that it is the Appellant who had the burden to prove that his father had only wife. He was not able to prove this because he was trying to discredit events that took place long before he was born. This finding covers the second issue. 9.As for the third issue, it is trite law that one need not be in occupation of land in order to be entitled to it by way of a customary trust. In the case of Isack M’Inanga Kiebia vs. Isaya Theuri M’Lintari and another Petition No. 10 of 2015, the Supreme Court of Kenya held, inter alia at paragraph 52 of the judgment dated 5-10-2018.“… 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…”Similarly in this case, it is immaterial that the children of the first wife have never lived on the suit or their mother is not buried thereon. What is material is that they are children of Joseph Mwangi Karanja who is entitled to half of the suit land. 10.Finally on the fourth issue, the fact that the suit land is subdivided into two equal parts does not mean that Joseph Mwangi Karanja had only one wife. Since it was his father who subdivided the suit land that way, it meant that all the children and wives of Joseph Mwangi Karanja, irrespective of their number are entitled to one half of the suit land while the Respondent is entitled to the other half. 11.For the above stated reasons, I find no merit in the Appellant’s appeal dated 3-6-2025 which I dismiss with costs to the Respondent. The Respondent will also have the costs of the lower Court.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 15TH DAY OF JUNE, 2026.M.N. GICHERU JUDGE.DELIVERED ONLINE IN THE PRESENCe of; -Court Assistants – AntonyAppellant’s Counsel – Mr. KimaniRespondent’s Counsel – Mr. Njogu