https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4099

Bengi & another v Njiru (Being sued as an administrator Of The Estate of Njiru Bengi - Deceased) (Environment and Land Case 17 of 2020) [2026] KEELC 4099 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEELC 4099 (KLR) Republic of Kenya In the Environment and Land Court at Embu Environment and Land Case 17 of 2020 A Kaniaru, J June 30, 2026 Between Moses Njue Bengi 1st Plaintiff James Muriuki Nyaga 2nd Plaintiff and Teresia Igandu Njiru (Being Sued As An Administrator Of The Estate Of Njiru Bengi - Deceased) Defendant Judgment 1.The 1st and 2nd plaintiffs herein- Moses Njue Bengi and James Muriuki Nyaga – filed this case here against the defendant –Teresia Igandu Njiru (As the administrator of the estate of the late NJIRU BENGI) – vide an amended Plaint dated 09.10.2023 and filed on 11.10.2023. It is said that, the suit land herein land parcel No. Gaturi/Nembure/588, measuring 3.45 acres and registered in the name of the Defendant pursuant to Embu H.C. Succession Cause No. 449 of 2014 in the estate of Njiru Bengi (deceased), is ancestral land that was held by the deceased in trust for himself and the wider family of his father, Alfred Nyaga Ngaruri (deceased), which includes the Plaintiffs. 2.They contended that the Defendant is the wife of the deceased and that the deceased was registered as proprietor of the suit land on or about 17.10.1961, at a time when he was still a minor aged nine (9) years. They further averred that it was their late father who caused the said registration to be effected in the name of the deceased. The Plaintiffs further stated that their late father was in occupation of the suit land long before it was registered in the name of the deceased. That he also married his wife, the late Jemimah Runji Nyaga, on the same land in the 1950s. 3.They further contended that the Plaintiffs and the deceased were born and raised on the suit land, have continued to occupy it to date, and have substantially developed their respective portions. They averred that it is well within the Defendant’s knowledge that her late husband was holding the suit land in trust because when she was married on or about the year 1975, she found the family of their late father living and developing the said land jointly and that they have continued to live and develop the land to date. 4.They averred that despite this, the Defendant secretly filed succession proceedings causing the land to be registered in her name, and has commenced the process of selling it to one Winfred Njura Josiah, who has lodged a caution claiming purchaser’ s interest. The Plaintiffs also averred that the Defendant has threatened to evict them form the land. They pleaded the particulars of breach of trust by the Defendant. 5.It is on these grounds that the Plaintiffs wish this Court to grant them:a.A declaration that the Defendant holds in trust land parcel Gaturi/Nembure/588 and she is so registered subject to the overriding interests of the 1st and 2nd Plaintiffs and the children of their deceased sisters the late Lucy Wambugi Bengi and the late Jacinta Ruguru and, that the said trust ought to be determined and the beneficiaries registered with their respective sharesb.In the alternative, a declaration that the Plaintiffs have acquired the said land by way of adverse possession;c.An order be issued directing the Defendant to subdivide and transfer the suit land into five portions as follows; 1 ¼ Acre to be registered with the Defendant, ¾ Acre be registered with the 1st Plaintiff, ½ Acre be registered with the 2nd Plaintiff, ½ Acre be registered with the children of the late Lucy Wambugi Bengi and ½ Acre be registered with the children of the late Jacinta Ruguru;d.In the alternative, they seek that the Deputy Registrar of the Court be authorized to execute all the necessary documents to facilitate subdivision and transfer of the suit land as set out above.e.Costs and interest of the suit and any other relief that the Court may deem fit to grant. 6.The Defendant filed an amended defence and counterclaim dated 16/04/2021 and filed on 25.10.2021. She averred that her late husband was given the suit land by the Marigu Clan and not because he was his father’s son. She stated that her late husband’s father, who is also the Plaintiff’s father, had land elsewhere being land parcel No. Gaturi/Weru/335 and that the land was subdivided among his children, but her late husband was not given a share because he owned the suit land. She averred that the 1st Plaintiff despite being given his share did not move so that he could continue to disturb her since she is a widow. 7.She further stated that the 1st Plaintiff, after the death of her husband, forcefully occupied most of the suit land leaving her and her children with almost nothing. She averred that her in-laws lived on the suit land with the permission of the registered owner, her late husband, and that is why the deceased buried them on the suit land because he wanted them close to him and that the same did not make the suit land ancestral land. 8.In her counterclaim which is against the 1st Plaintiff, the Defendant averred that the 1st Plaintiff is in illegal occupation of a portion out of the suit land and that his actions amount to trespass. She averred that the 1st Plaintiff had failed to vacate the suit land despite numerous notices to do so, and therefore she seeks an order compelling him to vacate and deliver vacant possession of the suit land. 9.She sought to have the Plaintiff’s claim dismissed with costs; an order that the 1st Plaintiff vacates and renders vacant possession of the suit land or be forcefully evicted; that the OCS Manyatta Police Station be mandated to provide security during the said eviction, and costs of the suit. 10.The suit proceeded for hearing on 27.02.2024 when the 1st Plaintiff testified as PW1. He adopted his witness statement as his evidence in chief. He produced in evidence a copy of the Death Certificate of the late Njiru Bengi, a copy of the register for land parcel 588, a copy of the official search of land parcel 588, a copy of the burial permit of the late Jemimah Runji Nyaga, copies of grant of letters of administration and the certificate of confirmation of grant to the estate of the late Njiru Bengi issued to the Defendant pursuant to Embu High Court Succession Cause No. 449 of 2014, a copy of an amended summons for revocation of grant in Embu High Court Succession Cause No. 449 of 2014 and a ruling in the same case, copies of ID’s of Nancy Murugi Jemimah and Martin Mugambi Njue the children of the Plaintiff’s deceased sister Jacinta Ruguru, copy of the land register to land parcel 335 registered in the name of Nyaga Ngaruri, a mutation form for land parcel 8631, photographs showing the gravestones of their father, their sister Jacinta Ruguru and their mother Jemimah Runji Nyaga all berried in land parcel Gaturi/Nembure/588, copies of photographs showing the 1st Plaintiffs homestead, cattle sheds, tea bushes and coffee stems on land parcel 588 and photographs showing tea bushes on the portion of about ½ acre on land parcel 588 where the their sister the late Lucy Wambugi Bengi and her sisters children utilize. 11.He testified that the suit land was first registered in the name of his late brother Njiru Mbengi in 1961 and that he was 9 years old when he became registered. He stated his parents lived on the said land and that their five children including him were also born on the land where he still lives to date. He stated that when the Defendant was married to their late brother in 1975, she found them living on the land. He testified that the late Njiru Mbengi died in 1997 and was buried on the suit land on the portion that the Defendant utilizes which is about 1 ¼ Acres. He stated that he utilizes ¾ Acres, the 2nd Plaintiff ½ Acre and their sister the late Lucy Wambugi Bengi was utilizing ½ Acre of the suit land which her children are utilizing even now. He stated further that they have another sister, the late Jacinta who died in the year 2007 and was buried on the portion of the suit land she was occupying. 12.He further testified that their mother who died in the year 2017 was also buried on the suit land on the portion that was utilized by the late Lucy Wambugi Bengi. He averred that the Defendant did not object to the burials. He also stated that each one of them knew the portions of the suit land that they are utilizing on the suit land and that when their parents and the late Njiru Bengi were alive, there were no problems concerning the land as they all knew it was family land. He stated further that, the late Njiru Bengi died in the year 1997 and that in the year 2015, the Defendant secretly filed succession proceedings which they tried to challenge but were advised by the Court to file the suit herein. 13.He testified that they were also entitled to own the land by way of adverse possession as they have always possessed and used the land as their own. He further testified that land parcel 335 which belonged to his late father was subdivided into parcels 9471 to 9479 which still belong to their late father. He denied that they were trespassers on the suit land. 14.On cross examination, he stated that land parcel 335 was sold by their mother before she died but parcels No. 9471 to 9479 still exist. He averred that their late brother was their leader and that he used to take care of them as their elder brother. He maintained that everyone lives on the suit land. On re-examination, he denied having been given any land from parcel No. 335 that he sold. 15.The defendant Teresia Igandu Njiru testified as DW1. She testified that the Plaintiffs are siblings of her late husband Njiru Bengi. She adopted her witness statements as her evidence in chief. She produced a copy of the title deed for parcel No. 588, the death certificate of Njiru Bengi, a copy of a certificate of confirmation of grant, a mutation for land parcel 884 and Defendant’s exhibits 1 to 4 respectively. 16.On cross-examination, she testified that she was married to her late husband in 1974 and at the time, the Plaintiffs had been born and were living on the suit land with their parents. She averred that she found all the Plaintiffs on the suit land but some of them shifted to other places. She testified that the Plaintiff’s grandfather, her late husband, the Plaintiff’s sister Jacinta who she averred died long after her husband had died, were buried on the suit land. She averred that only the 1st Plaintiff lives on the suit land which she says is by force. 17.On re-examination, she testified that the Plaintiffs were living on the suit land with her late husband’s permission and that her husband had told the 1st Plaintiff to move from the land in vain. She clarified that parcel No. 884 was the land that the Plaintiffs were entitled to and where they were supposed to relocate and leave the suit land for her and her children. She averred that the Plaintiffs and their other siblings shared the said land among themselves and some of them even sold their portions. 18.The parties filed written submissions with the Plaintiff’s submissions being filed on 11.11.2024. They gave an analysis of the case before the court. It was then submitted that land parcel 588 is ancestral land because of the undisputed facts which were that by the time the land was registered with the 1st registered owner the late Njiru Bengi, his grandparents were living on the said land. They submitted that the Defendant admitted that by the time she got married to the deceased, the whole family was living on the suit land and she learnt that the Plaintiff’s grandfather was living on the land and was buried there. They maintained that there was no dispute that the Plaintiffs were born, brought up and got families on the suit land and that they live there to date. 19.They submitted further that there was no dispute that the Plaintiffs family members had been living on the suit land and that when they died, they were buried thereon without any dispute. They averred that even after the late Njiru Bengi died, the family continued living peacefully as there was no evidence produced to the contrary, until the Defendant filed a succession cause secretly with the aim of disinheriting the Plaintiffs. 20.It was submitted further that the Plaintiffs claim was governed by Section 28(b) of the Land Registration Act 2012 which provides for trusts including customary trusts. They also relied on the Supreme Court case of Isack M’inanga Kiebia -vs- Theuri M’lintari & Another (2018) eKLR which laid out the principles for determining the existence of a customary trust and the elements to be proved. They averred that they had proved the said principles since both parties being the Plaintiffs and the Defendant agreed that the extended family were living on the suit land even before the original registered owner was so registered. 21.They submitted that one need not prove actual physical possession of the suit land in order for a trust to be proved as was held in Isack M’inanga supra and therefore the Defendants claim that some of the family members move out of the suit land was immaterial. They urged that the suit be allowed and the Defendants counterclaim dismissed with costs. 22.The Defendant filed submissions dated 18.11.2024 and started by giving an analysis of the case before the Court. She submitted that Section 25(1) and 28 of the Land Registration Act emphasize the owner’s rights to land are indefeasible and are held free from all other interests and claims and that the rights can only be defeated in the manner provided for under the Act. 23.She submitted that the rights of a registered proprietor are however subject to overriding interests as declared by section 28 of the Act as not requiring noting in the register including customary trusts. She submitted that the legal burden to prove the existence of trust rests with the one who is asserting a right under customary trust as was held in the cases of Njenga Chongera -vs- Maria Wanjira Kimani and 2 others (2005) eKLR citing with approval the case of Muthuita -vs- Muthuita (1982-88) I KLR 42, the case of Peter Ndungu Njenga -vs- Sophia Watiri Ndungu (2000) eKLR and in Juletabi African Adventure Limited & Another -vs- Christopher Michael Lockley (2017) eKLR. 24.She further submitted that in order to succeed in a claim for customary trust, one must prove the elements set out in the case of Isaac M’inanga -vs- Isaaya M’lintari supra. She contended that in essence, one had to lay bare the root of the title to create the nexus or link of the trust to the tile holder and the claimant. She argued that the Plaintiffs had not provided any proof that the suit land was held in trust for them by her husband or that the suit land was ancestral land neither was there proof that the deceased was designated to hold the land on behalf of the family. 25.She submitted that the deceased was given the suit land by his grandfather because he was named after him and because he was giving land to all his grandchildren who were named after him. She also stated that the land was given to the deceased by the Marigu clan and not because he was his father’s son. She submitted further that she had been in occupation of the suit land since she was married to her deceased husband. She averred that her husband was registered as the owner of the suit land in the year 1961 and upto his death in 1997, nobody in his family including the Plaintiffs had laid claim over the land until after his death. 26.She stated that the Plaintiffs had filed the instant suit in 2020 and that it had already been fifty (58) years since the land was registered in the name of her husband. She contended that even if the Plaintiffs had a claim under adverse possession, it had no standing as time had already lapsed. That further, their occupation had been subject to disturbance as her husband while alive was constantly demanding that they vacate from the land. She urged that the Plaintiffs had not proved their claim for adverse possession. 27.She further submitted that the Plaintiffs had no legitimate claim to the suit land as they were not dependants or beneficiaries in the estate of her late husband therefore their claim that the Defendant be ordered to cause subdivision of the suit land and transfer it to them could not be sustained. She urged that the suit be dismissed and the orders sought in her counterclaim allowed. 28.I have considered the pleadings as filed, the evidence tendered during hearing, and the written rival submissions. I find that the issues for determination are whether:i.Whether the suit land, being Land Parcel No. Gaturi/Nembure/588, is subject to a customary trust in favour of the Plaintiffs and other alleged beneficiaries.ii.Whether the Plaintiffs have acquired any interest in the suit land by way of adverse possession.iii.Whether the 1st Plaintiff is in unlawful occupation of the suit land and, if so, whether the Defendant is entitled to the reliefs sought in the counterclaim, including eviction and delivery of vacant possession.iv.Who should bear the costs of the suit and the counterclaim. 29.The Plaintiffs’ primary claim is that Land Parcel No. Gaturi/Nembure/588 was held by the late Njiru Bengi in trust for himself and the wider family, including the Plaintiffs. The law on customary trust is now well settled. Under section 28(b) of the Land Registration Act, customary trusts constitute overriding interests. The principles for establishing such a trust were set out in Isack M’inanga Kiebia -vs- Theuri M’lintari & Another (2018) eKLR, where the Supreme Court stated that a claimant must prove that;i.The land in question was before registration, family, clan or group land.ii.The claimant belongs to such family, clan, or groupiii.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.iv.The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.v.The claim is directed against the registered proprietor who is a member of the family, clan or group. 30.The Court further stated that each case has to be determined on its own merits and quality of evidence and that it is not every claim of a right to land that will qualify as a customary trust. 31.In the present case, it is not in dispute that the suit land was first registered in the name of the deceased in 1961 when he was still a minor. The death certificate produced by the Plaintiff’s shows that he died on 01.07.1997 aged 48 years old meaning that at the time of his registration as the owner of the suit land on 17.10.1961, he was aged about 12 years old. It is further not contested that the Plaintiffs’ family, including their parents, were in occupation of the land long before and continued to reside thereon even after registration. 32.The Defendant herself conceded that upon her marriage to the deceased in the 1970s, she found the Plaintiffs and other members of the extended family in occupation of the suit land. It is also a matter of record that several members of the family, including the Plaintiffs’ parents and siblings, were buried on the suit land without objection from the registered proprietor during his lifetime.The Court also notes that the photographs produced by the Plaintiffs which were not contested by the Defendant, depict well established and developed homesteads on the suit property, there is evidence of cattle sheds which the 1st Plaintiff testified belong to him. 33.There is also evidence of cultivated tea and coffee plantations on the suit property, which the Plaintiffs contend belong to the 1st Plaintiff and their late sisters. It was further stated that the respective portions formerly utilized by the deceased sisters are now being utilized by their children. There is further evidence of grave sites one clearly belonging to the Plaintiff’s mother Jemimah Runji Nyaga. In my view these circumstances, taken cumulatively are consistent with the land having been treated as family land. The Defendant’s contention that the land was exclusively granted to her late husband by the Marigu clan was not supported by evidence. 34.In the absence of such proof, the Court is inclined to accept the Plaintiffs’ version as more probable. Accordingly, I am satisfied that the Plaintiffs have on a balance of probabilities, established that Land Parcel No. Gaturi/Nembure/588 is subject to a customary trust in favour of the family of the late Alfred Nyaga Ngaruri including the Plaintiffs herein. 35.Having so found, it follows that the alternative claim for adverse possession is rendered moot and unnecessary for determination, and I accordingly make no findings thereon. 36.As regards the counterclaim, the Defendant’s assertion that the 1st Plaintiff is in unlawful occupation of the suit land cannot stand in light of the finding that the suit property is held in trust for the benefit of the Plaintiffs and other beneficiaries. In the circumstances, the counterclaim is devoid of merit and is hereby dismissed in its entirety. 37.Consequently, judgment is hereby entered for the Plaintiffs as prayed in the plaint. JUDGEMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT KITUI THIS 30TH DAY OF JUNE, 2026 PURSUANT TO NOTICE DATED 17/6/2026.In the presence of,Court Assistant – MusyokiPlaintiff – AbsentDefendant - AbsentM/s Kamotu for Muthoni Ndeke for DefendantFatuma Wanjiku (absent) for PlaintiffA. KANIARUJUDGE- ENVIRONMENT & LAND COURT, KITUI