https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3030

Njiru v Njiru & 3 others (Environment and Land Appeal E006 of 2025) [2026] KEELC 3030 (KLR) (20 May 2026) (Judgment) Neutral citation: [2026] KEELC 3030 (KLR) Republic of Kenya In the Environment and Land Court at Kerugoya Environment and Land Appeal E006 of 2025 SM Kibunja, J May 20, 2026 Between Francis Ndambiri Njiru Appellant and Cypriano Kanyuiro Njiru 1st Respondent Jonathan Muriithi Kanyuiro 2nd Respondent Caroline Kuthii Muthike 3rd Respondent Ann Karimi Ndambiri 4th Respondent (Being an appeal against the judgment and decree of the Hon. Cheruto C. Kipkorir, PM, delivered on 3rd January 2025 in Kerugoya MC ELC Case No. E121 of 2022, consolidated with MC ELC Case No. 33 “B” of 2023) Judgment 1.This appeal arises from the judgment of Hon. Cheruto C. Kipkorir, PM, delivered on 3rd January 2025 in Kerugoya MC ELC Case No. E121 of 2022, consolidated with Kerugoya MC ELC Case No. 33 “B” of 2023.In the impugned decision, the learned trial magistrate entered judgment in favour of the respondents and found that the appellant held 0.58 hectares out of Land Parcel No. NgariamaThirikwa2552, measuring approximately 1.16 hectares, in trust for the 3rd and 4th respondents.Arising from that finding, the trial court issued a declaration of trust and directed the Land Registrar to excise and transfer 0.58 hectares from the suit land to the 3rd and 4th respondents.The court further ordered the appellant, together with the 3rd and 4th respondents, to avail all requisite documents and meet the statutory fees and costs necessary to facilitate the subdivision and transfer in implementation of the decree. To pave way for the execution of those orders, the court directed that any cautions or restrictions registered against the suit property be lifted. 2.The learned magistrate also issued a permanent injunction restraining the respondents, whether by themselves, their relatives, agents, servants, or any person acting on their behalf, from trespassing upon, cultivating, harvesting coffee, avocadoes, fruits, or any other crops, or in any other manner interfering with the appellant’s 0.58-hectare portion of the suit land.The respondents’ claim for special damages in the sum of Kshs. 6,200= was however, dismissed for want of proof. Ultimately, the court directed that each party bear their own costs.Aggrieved and dissatisfied with the said judgment, the appellant lodged the present appeal through the memorandum of appeal dated 31st January 2025 raising twelve grounds, challenging both the factual findings and legal conclusions reached by the trial court. 3.The appellant principally faults the learned trial magistrate for holding that he held 0.58 hectares out of Land Parcel No. NgariamaThirikwa2552 in trust for the 3rd and 4th respondents, despite simultaneously finding that the suit land had been jointly registered in the names of the appellant and his late mother and that, upon the latter’s demise, the appellant became the sole proprietor thereof by operation of the doctrine of survivorship. The appellant contends that the impugned finding was contrary to the applicable statutory framework governing joint proprietorship as well as binding decisions of this court and the Court of Appeal, which had been cited before the trial court. 4.The appellant further faults the learned magistrate for failing to appreciate the legal effect of joint registration, namely that such registration extinguishes prior individual claims and vests ownership exclusively in the joint proprietors, with the interest of a deceased joint proprietor automatically accruing to the surviving proprietor by operation of law. It is the appellant’s position that a deceased joint proprietor retains no transmissible interest capable of devolving to third parties and that the trial court therefore erred in law in finding that part of the suit land could nonetheless vest in the 3rd and 4th respondents. 5.The appellant also takes issue with the trial court’s finding that he held part of the suit land in trust for the 3rd and 4th respondents, arguing that no trust had been pleaded by the respondents and that the issue was only introduced during the hearing. According to the appellant, the doctrine of trust was inapplicable in the circumstances of the case and could not override the legal consequences attendant to joint proprietorship and survivorship.He further contends that the legal effect of the death of a joint proprietor is fixed by law and cannot be altered through succession proceedings, a will, or a claim founded on trust. 6.The appellant additionally contends that the finding of trust was unsupported by credible evidence and that the learned magistrate failed to properly evaluate the evidence placed before the court. In particular, he argues that the respondents themselves admitted that the succession proceedings relating to the estate of the deceased did not identify the 3rd and 4th respondents as beneficiaries and that the said proceedings had been regularly and lawfully conducted by the 1st respondent as administrator. In his view, the trial court therefore had no proper basis upon which to conclude that he held any portion of the suit land in trust for the said respondents. 7.The appellant further faults the learned magistrate for allegedly failing to adequately analyse his evidence and submissions in support of his claim in Kerugoya CM ELC Case No. E121 of 2022 and his defence in Kerugoya CM ELC Case No. 33 “B” of 2023, while at the same time according undue weight to the respondents’ case despite what he terms as insufficiencies in their evidence. Ultimately, the appellant contends that the impugned judgment had the effect of undermining and nullifying the doctrine of survivorship as recognised in law and expounded in judicial precedent. The appellant therefore urges this court to allow the appeal; set aside the judgment of the subordinate court, and substitute it with orders allowing his claim in Kerugoya CM ELC Case No. E121 of 2022 and dismissing Kerugoya CM ELC Case No. 33 “B” of 2023, together with costs; and he be granted costs in this appeal. 8.The appellant commenced a suit before the subordinate court through a plaint dated 15th June 2022 in Kerugoya CM ELC Case No. E121 of 2022, seeking for inter alia, a permanent injunction restraining the respondents, whether by themselves, their relatives, agents, servants or any other persons acting on their behalf, from trespassing onto Land Parcel No. NgariamaThirikwa2553 for purposes of tending, harvesting or interfering with the coffee, avocado fruits or any other crops thereon, or in any other manner whatsoever interfering with the suit property.He further sought for special damages in the sum of Kshs. 6,200= together with interest thereon, removal of cautions, restrictions or other encumbrances allegedly registered against the suit land by the respondents, an order compelling the 1st respondent to release the title deed to facilitate transmission, as well as costs of the suit and interest thereon. 9.The appellant’s case before the trial court was that the suit property had been jointly registered in his name and that of his late mother, Maculata Wambui Njiru, who died on 13th June 2017. It was his position that, upon the demise of his mother, her interest in the suit property automatically vested in him by operation of the doctrine of survivorship, thereby rendering him the sole proprietor of the land. He averred that notwithstanding that legal position, the 1st respondent, who is his brother, instituted Kerugoya Chief Magistrates’ Court Succession Cause No. 186 of 2018 in respect of the estate of the deceased and unlawfully included Land Parcel No. NgariamaThirikwa2553 as forming part of the deceased’s estate. 10.According to the appellant, the respondents thereafter used the pendency of the succession proceedings as justification for entering onto the suit property and interfering with his possession, occupation and use thereof.He alleged that on 16th April 2021 and again on 27th April 2021, the respondents, allegedly accompanied by police officers from Muthigi-ini Police Post and other unidentified persons, unlawfully harvested and carried away avocado fruits valued at Kshs. 1,200= and coffee worth Kshs. 5,000= from the suit land.He further accused the 1st respondent of unlawfully withholding the original title deed and refusing to release the same to facilitate transmission of the property in his favour. 11.The appellant further pleaded that upon learning of the succession proceedings, he successfully moved the succession court for revocation of the grant on the ground that the suit land did not form part of the estate of the deceased since, by virtue of survivorship, he had automatically become the sole proprietor upon his mother’s death. He averred that although the 1st respondent challenged that decision through Kerugoya High Court Civil Appeal No. E017 of 2021, the said appeal was subsequently withdrawn with costs. 12.Despite those proceedings, the appellant maintained that the respondents continued to trespass onto the suit property, interfered with his quiet possession and enjoyment thereof, and unlawfully harvested crops therefrom despite repeated verbal and written demands requiring them to desist.He additionally contended that the respondents conspired to frustrate and defeat the process of transmission of the deceased joint proprietor’s interest in the suit land to him under Section 49 of the Land Act, No. 6 of 2012 and Section 60 of the Land Registration Act, No. 3 of 2012 by causing cautions and restrictions to be registered against the title. It was on the basis of the foregoing matters that the appellant maintained that the institution of the suit had become necessary. 13.The respondents entered an appearance and filed a statement of defence dated 10th November 2022. In their defence, they admitted that the 1st respondent had indeed instituted succession proceedings at Kerugoya in respect of the estate of the deceased. They, however, maintained that the said proceedings were neither clandestine nor fraudulent, contending that the appellant had actively participated therein.The respondents further conceded that the succession cause was eventually dismissed on the basis that the suit property had been jointly registered and therefore did not form part of the deceased’s estate capable of distribution through succession proceedings. 14.The respondents nevertheless denied the appellant’s claim of exclusive ownership and occupation of the suit land. They averred that even prior to the institution of the suit, the 3rd and 4th respondents had been in occupation and utilization of a portion of the suit property, which they continued to access and cultivate. They maintained that the 1st and 2nd respondents had never occupied, utilized or interfered with the appellant’s portion of the land and had never prevented him from utilizing what they described as his fair share thereof. According to the respondents, it was only the 3rd and 4th respondents who had been utilizing the portion in dispute. 15.The respondents further denied the allegations that they had unlawfully harvested or stolen the appellant’s crops. On the contrary, they averred that it was the appellant who had allegedly dispatched persons onto the land to harvest coffee and avocado fruits belonging to the 3rd and 4th respondents.They further contended that the appellant was not candid in his assertion that he merely sought exclusive use of the portion occupied by the 3rd and 4th respondents, maintaining that the dispute concerned a longstanding claim by the said respondents over the portion they occupied and utilized. 16.Subsequently, the 3rd and 4th respondents instituted Kerugoya CM ELC Case No. E030 of 2022 vide a plaint dated 28th July 2022 seeking for inter alia, a declaration that the appellant held Land Parcel No. NgariamaThirikwa2553, measuring approximately 1.16 hectares in trust for them, a declaration that they were entitled to 0.58 hectares out of the said parcel, costs of the suit, and such further relief as the court would deem fit and just to grant. 17.Their case before the subordinate court was that, at all material times, the suit property had been registered jointly in the names of the appellant and the late Maculata Wambui Njiru alias Maculata Wambui Njiru, who was the mother of the appellant, the 1st respondent Cypriano Kanyuro Njiru, Stanley Muriuki Njiru, Eusebious Ngurungo Njiru, Madaline Njoki Njiru and the 3rd respondent Caroline Kuthii Muthike. They averred that Madaline Njoki Njiru later died on 17th October 1998 and was survived by her daughter, namely the 4th respondent herein. 18.The respondents further pleaded that the suit property originally formed part of Land Parcel No. NgariamaThirikwa155 and that it was only after subdivision that the appellant and the deceased, Maculata Wambui Njiru, became the registered proprietors thereof. According to them, all the parties had been born, raised and lived on the original family land and that each of the children of the deceased had previously been allocated and occupied their respective portions. It was their case that they remained in occupation and utilization of approximately 0.58 hectares of the suit property while the appellant occupied the remaining portion. 19.The 3rd and 4th respondents further averred that the appellant had occupied the portion belonging to his mother, Maculata Wambui Njiru, during her lifetime from around the year 1972, while the 4th respondent and her late mother had occupied and utilized the disputed portion from about 1986. They contended that throughout the lifetime of the deceased, they had remained in occupation and utilization of the suit property without objection from the appellant and that he had never raised any complaint regarding their use and occupation of the land.They further stated that they had extensively developed the portion they occupied by planting coffee, avocado trees, macadamia trees and other assorted crops and trees. According to the respondents, efforts had been made by the family to amicably resolve the dispute, but the negotiations did not bear fruit, thereby necessitating the institution of the suit. 20.The appellant filed a statement of defence dated 20th September 2022 in response to the claim in Kerugoya CM ELC Case No. E030 of 2022.In his defence, he maintained that the suit property, being Land Parcel No. NgariamaThirikwa2553, was a resultant subdivision of the original family land and that he together with his late mother, Maculata Wambui Njiru, became registered as joint proprietors thereof through succession proceedings relating to the estate of his late father, Njiru Ngurungu.It was his position that upon the demise of his mother, her interest in the jointly owned property automatically vested in him by operation of the doctrine of survivorship, thereby making him the sole and absolute proprietor of the suit land. 21.The appellant denied that the 3rd and 4th respondents had any lawful claim over the suit property or that they were entitled to the portion claimed in the plaint. He averred that the said respondents, both of whom were married women, neither occupied nor lawfully utilized the suit land and instead resided on and utilized their respective husbands’ parcels of land.He further denied that they had been in occupation of the disputed portion during the lifetime of their late mother, maintaining that they only entered the suit property after the demise of the deceased and following what he described as a scheme orchestrated by the 1st respondent to deprive him of the land. 22.The appellant reiterated his claim that the 1st respondent had conspired with the 3rd and 4th respondents with the intention of facilitating the sale of the suit property to himself, notwithstanding the outcome of the succession proceedings which, according to the appellant, had affirmed that he became the sole proprietor of the land upon the death of his mother. He maintained that prior to the alleged scheme, the 3rd and 4th respondents had never occupied, cultivated or utilized the suit property and only began entering onto the land thereafter, whereupon they allegedly engaged in acts of trespass and unlawful harvesting of crops from the suit land. 23.The court issued directions on filing and exchanging submissions on 18th November 2025. The learned counsel for the appellant and respondents filed their submissions dated 5th February 2026 and 4th February 2026 respectively, which the court has considered. 24.The appellant submitted inter alia that the trial court fundamentally misapprehended the legal effect of joint proprietorship and the doctrine of survivorship in relation to Land Parcel No. NgariamaThirikwa2553.Counsel argued that the suit property was jointly registered in the names of the appellant and his late mother, Maculata Wambui Njiru, and that upon her death on 13th June 2017, her interest automatically vested in the appellant by operation of law under the doctrine of jus accrescendi (right of survivorship). It was contended that the trial magistrate correctly appreciated this legal position at one point in the judgment, but thereafter contradicted herself by nonetheless awarding half of the suit land to the 3rd and 4th respondents. 25.The appellant submitted that both statute and common law recognize and protect the doctrine of survivorship. Reliance was placed on Section 49 of the Land Act and Section 60 of the Land Registration Act, together with common law principles as discussed in Megarry’s Manual of the Law of Real Property and scholarly writings by Hon. Justice W.M. Musyoka in Law of Succession.Counsel argued that under a joint tenancy, the interest of a deceased joint proprietor does not form part of the deceased’s estate and cannot devolve to beneficiaries through succession proceedings, trust claims, or any other process. According to the appellant, once the appellant’s mother died, there remained no separable share capable of being inherited or claimed by the respondents. 26.The appellant further submitted that the respondents themselves admitted in their pleadings that the suit property was jointly registered in the names of the appellant and the deceased. The green card was said to clearly show that the registration was expressly as “JOINT” proprietors. It was therefore argued that the respondents’ claim to half of the property was legally untenable from the outset and that the succession proceedings previously filed by the 1st respondent had in fact already been struck out on the basis that the suit land did not form part of the deceased’s estate. 27.Counsel faulted the trial magistrate for declaring that the appellant held half of the suit property in trust for the 3rd and 4th respondents.It was submitted that no trust, whether customary or otherwise, had been specifically pleaded or proved. The appellant argued that apart from a general prayer in the plaint, the respondents did not set out particulars showing how any trust arose, nor did they lead evidence establishing the elements of customary trust. Reliance was placed on Gichuki versus Gichuki, where it was held that a trust must not only be pleaded but also strictly proved by evidence. 28.The appellant also challenged the factual basis of the respondents’ claim of occupation of the suit property.Counsel submitted that the evidence on record, including the respondents’ own cross-examination, showed that the 3rd and 4th respondents were married and lived on their husbands’ land and not on the suit property. The appellant maintained that the respondents only entered the land after the death of Maculata Wambui Njiru and after filing succession proceedings, thereby rendering them trespassers rather than beneficiaries or persons entitled under trust. 29.It was further submitted that the trial magistrate erred by presuming the existence of customary trust despite expressly acknowledging in the judgment that trust had neither been specifically pleaded nor supported by evidence. Counsel argued that the court improperly invoked Section 28(b) of the Land Registration Act without a factual or evidential foundation and thereby interfered with the appellant’s title contrary to Sections 24 and 25 of the Land Registration Act and Article 40 of the Constitution. 30.The appellant further argued that there was no evidence of fraud, mistake, or illegality capable of justifying interference with the appellant’s title under Section 80 of the Land Registration Act. According to counsel, the respondents neither challenged the process through which the property became jointly registered nor sought revocation of the succession proceedings through which the registration may have arisen.It was therefore submitted that the trial court had no lawful basis for divesting the appellant of part of the land. 31.Counsel finally submitted that the judgment undermined the sanctity and certainty of joint proprietorship by allowing third parties to lay claim to jointly owned property after the death of one joint proprietor. The appellant urged the appellate court to safeguard the doctrine of survivorship and reverse the lower court’s decision.In support of the appeal, reliance was placed on authorities including Gichuki versus Gichuki, Civil Appeal No. 21 of 1981, and Federico Rosa versus Marc J. Crutzen (suing as the legal representative of the Estate of Ruth Wanjiru Mwithia), ELC No. 331 of 2012, among others. 32.In their submissions, the respondents identified the appeal as turning on two principal questions, namely whether the doctrine of survivorship in joint proprietorship extinguishes claims founded on trust, and whether the appellant held Land Parcel No. NgariamaThirikwa2553 in trust for the respondents. Counsel submitted inter alia that it was not disputed that the suit property was jointly owned by the appellant and his late mother, Maculata Wambui Njiru.It was further submitted that each member of the family had received an equal share of the original family land and that the appellant himself occupied and utilized only half of the suit property, which was equivalent to the portions allocated to his brothers.According to the respondents, the remaining half portion had consistently been occupied and utilized by the 3rd and 4th respondents both before and after the death of Maculata Wambui Njiru, and they remained in occupation even at the time of filing the submissions. 33.The respondents further pointed out that the appellant had given the 4th respondent his own identity particulars after the death of her mother, such that she bore the appellant’s surname “Ndambiri.” Counsel relied on this conduct to demonstrate the close family relationship between the parties and the appellant’s recognition of the 3rd and 4th respondents as beneficiaries of their mother’s share. 34.On the doctrine of survivorship, counsel acknowledged the legal principle and relied on Diana Muchiri versus Lydia Wariara Njenda & Another and In Re Estate of Johnson Njoge Gichobi (Deceased) [2018] eKLR for the proposition that jointly owned property passes automatically to the surviving joint proprietor upon the death of the other proprietor without the need for succession proceedings.However, it was submitted that although the appellant became the surviving proprietor, that did not immunize him from proceedings founded on trust or other legal claims. Counsel maintained that the doctrine of survivorship does not extinguish claims based on trust. 35.With regard to trust, the respondents submitted that the 3rd and 4th respondents were occupying and utilizing the portion that belonged to their late mother and that the appellant had been entrusted to hold that portion on their behalf.Counsel further submitted that although the green card did not expressly indicate the existence of a trust, it also did not show that a title deed had ever been issued in respect of that portion. The respondents denied the appellant’s assertion that the 1st respondent was in possession of the title deed. 36.It was also submitted that at the time the original Land Parcel NgariamaThirikwa55 was being distributed, the 4th respondent was still a minor and that following the death of her mother, the appellant and other family members took care of her. Counsel contended that the intention of the family arrangement was that the deceased mother’s share would eventually devolve to her daughters, namely the 3rd and 4th respondents. 37.The respondents argued that the evidence before the trial court showed that the appellant and his brothers each received one acre of land and that none of the daughters received any share. According to counsel, if the appellant was allowed to retain the whole of the suit property, he would effectively end up with three acres while the daughters of the deceased would remain without any allocation. The respondents, therefore, urged the court to uphold the finding that the appellant held the disputed portion in trust for the 3rd and 4th respondents. 38.Reliance was placed on Section 28(b) of the Land Registration Act, which recognizes trusts, including customary trusts, as overriding interests.Counsel also cited Peter Gitonga versus Francis Maingi M’Ikiara, Meru HCCC No. 146 of 2000, for the proposition that the circumstances surrounding registration must be examined to determine whether a trust was intended.It was submitted that the appellant’s registration alongside his mother was intended to preserve the daughters’ entitlement since all the sons had already received shares of land. Counsel emphasized that the 3rd and 4th respondents had occupied and utilized the disputed portion during their mother’s lifetime and that disagreement only arose after her death. 39.The respondents further relied on Isack M’Inanga Kiebia versus Isaaya Theuri M’Lintari & another, Supreme Court Petition No. 10 of 2015, and reproduced the elements necessary to establish customary trust. It was submitted that the parties were members of the same family and that the evidence on record satisfied the ingredients of trust as set out in that decision.In conclusion, the respondents maintained that they had proved the existence of trust and that the 3rd and 4th respondents could not be treated as trespassers on family land. Counsel therefore urged the court to find that the appellant’s defence before the trial court was unfounded and to dismiss the appeal with costs. 40.The following issues emerge in this appeal for determination by the court:a.Whether the doctrine of survivorship arising from joint proprietorship extinguished any beneficial or trust-based claim by the 3rd and 4th respondents over Land Parcel No. NgariamaThirikwa2553.b.Who pays the costs? 41.The court has considered the grounds on the memorandum of appeal, record of appeal, submissions by the learned counsel, superior court decisions relied upon thereon, and come to the following determinations:a.This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and must make due allowance for that fact. This principle was settled in Selle & Another versus Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court of Appeal held that:“An appeal to this Court is by way of retrial… this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses…”b.From the pleadings, evidence, judgment appealed from, and the parties’ written submissions, the appeal in truth revolves around the tension between two competing legal doctrines: the doctrine of survivorship arising from joint proprietorship and the doctrine of customaryfamily trust, as an overriding interest in land. The appeal, therefore, ought not to be framed merely as whether the trial court was right or wrong, but whether, in the particular factual circumstances of this case, the learned trial magistrate properly reconciled those doctrines.c.There is no dispute that Land Parcel No. NgariamaThirikwa2553 was jointly registered in the names of the appellant and his late mother, Maculata Wambui Njiru. The green card produced before the trial court reflected the proprietorship as joint. It is equally uncontested that Maculata Wambui Njiru died on 13th June 2017.The appellant’s case, both before the trial court and on appeal, is that upon the death of his mother, her interest in the suit property automatically vested in him by operation of the doctrine of survivorship, thereby making him the sole and absolute proprietor of the land. He contends that once survivorship took effect, the deceased ceased to have any transmissible interest capable of devolving to the 3rd and 4th respondents, whether through succession or otherwise.According to the appellant, the learned trial magistrate therefore erred in law by simultaneously acknowledging the operation of survivorship, and nonetheless holding that he held half of the suit land in trust for the 3rd and 4th respondents.d.The starting point is the law governing joint proprietorship. Section 91(5) of the Land Registration Act provides that where land is occupied jointly, no tenant is entitled to any separate share in the land and consequently, on the death of a joint tenant, that tenant’s interest vests in the surviving tenant or tenants jointly.Similarly, Section 60 of the said Act contemplates transmission by survivorship in the case of joint proprietorship. The legal effect of joint tenancy is therefore the doctrine of jus accrescendi, under which the interest of a deceased joint proprietor accrues automatically to the surviving proprietor by operation of law and not through succession proceedings.e.That principle has consistently been affirmed by Kenyan courts. In In Re Estate of Johnson Njoge Gichobi (Deceased) [2018] eKLR, the court held that property held in joint tenancy does not form part of the estate of a deceased proprietor available for distribution because the surviving joint proprietor automatically acquires the deceased’s interest upon death.Likewise, in Diana Muchiri versus Lydia Wariara Njenda & another [2022] eKLR, the court reiterated that survivorship operates automatically and independently of succession proceedings.f.In the present case, the record shows that the succession proceedings previously instituted in respect of the estate of Maculata Wambui Njiru were ultimately revoked on the basis that the suit property, being jointly owned property, did not form part of the deceased’s estate. To that extent, this court agrees with the appellant that the succession court could not lawfully distribute Land Parcel No. NgariamaThirikwa2553 as part of the deceased’s estate.g.The more critical question is whether the appellant’s acquisition of the deceased’s legal interest through survivorship thereby extinguished any beneficial or equitable interests claimed by the 3rd and 4th respondents over the suit property. In this court’s view, it did not. The appellant’s argument proceeds on the assumption that once survivorship took effect, his title became absolute and incapable of being subjected to any trust obligation.Respectfully, that position overlooks the distinction between legal ownership and beneficial entitlement. The doctrine of survivorship determines how legal title devolves between joint proprietors upon death. Trust, on the other hand, concerns beneficial interests and equitable obligations that may subsist notwithstanding registration.h.Indeed, the Land Registration Act itself recognizes that registration is not necessarily conclusive as against overriding interests recognized by law. Section 28(b) of the Land Registration Act expressly recognizes trusts, including customary trusts, as overriding interests affecting land without the necessity of noting them on the register. The effect of that provision is that a registered proprietor may hold title subject to obligations arising under customary or family trust even where such trust is not reflected in the register.i.Kenyan jurisprudence has consistently affirmed that registration does not by itself extinguish customary trust. In Kanyi versus Muthiora [1984] KLR 712, the Court of Appeal held that registration under the Registered Land Act did not relieve a proprietor of duties or obligations as trustee.Similarly, in Isack M’Inanga Kiebia versus Isaaya Theuri M’Lintari & another [2018] eKLR, the Supreme Court reaffirmed that customary trust remains an overriding interest capable of subsisting notwithstanding registration.Accordingly, while the appellant became the surviving legal proprietor upon the death of Maculata Wambui Njiru, that fact alone did not automatically extinguish any pre-existing beneficial interests that may have attached to the suit property.j.This court is therefore unable to agree with the appellant’s contention that the learned trial magistrate fell into contradiction merely because she recognized the operation of survivorship, while also considering whether the appellant held the suit property subject to trust obligations.The two doctrines are not mutually exclusive. Survivorship governs transmission of legal title between joint proprietors, whereas trust concerns the beneficial interests that may subsist in relation to that title. A surviving joint proprietor may therefore hold legal title subject to an overriding customary or family trust, if such trust is proved on evidence.k.The real question was whether the 3rd and 4th respondents established on evidence, that the appellant held part of the suit property subject to a customary or family trust in their favour. The appellant contends that the learned trial magistrate erred in finding that he held part of the suit property in trust for the 3rd and 4th respondents. His argument is twofold.Firstly, that trust was neither specifically pleaded nor properly particularized.Secondly, that even if the issue was properly before the court, the evidence tendered by the respondents did not meet the threshold required to establish a customary trust. The court shall address those two limbs sequentially.l.On whether trust was pleaded, the record shows that in Kerugoya CM ELC Case No. E030 of 2022, the 3rd and 4th respondents expressly sought a declaration that the appellant held Land Parcel No. NgariamaThirikwa2553 in trust for them, and a further declaration that they were entitled to 0.58 hectares thereof. Their pleadings further set out the factual basis upon which the alleged trust was founded.They pleaded inter alia that the suit property originated from family Land Parcel No. NgariamaThirikwa155; that all the children of the deceased had occupied and utilized portions thereof; that the 3rd and 4th respondents had remained in occupation and utilization of approximately half of the suit property during the lifetime of the deceased; and that the appellant occupied only the remaining half portion.While the particulars of trust were not pleaded with elaborate precision, the substance of the claim was plainly disclosed. The appellant was sufficiently notified of the case he was required to meet.Indeed, the proceedings before the trial court, the evidence tendered by both sides, and the written submissions filed thereafter demonstrate that the central controversy throughout the trial was whether the appellant held the disputed portion subject to a family or customary trust.In the circumstances, this court is unable to agree with the appellant that the issue of trust was improperly introduced during the hearing. The issue was properly before the trial court.m.The more substantial question is whether the trust alleged by the respondents was proved. The applicable principles governing customary trust were authoritatively settled by the Supreme Court in Isack M’Inanga Kiebia versus Isaaya Theuri M’Lintari & another [2018] eKLR. The Supreme Court held that customary trust is proved through the circumstances of each case and identified, among others, the following elements as relevant in determining whether such trust exists:1.The land in question was, before registration, family, clan or group land.2.The claimant belongs to such family, clan or group;3.The relationship of the claimant to such family, clan or group is not remote or tenuous;4.The claimant could have been entitled to be registered as proprietor or beneficiary but for some intervening circumstances; and5.The claim is directed against a registered proprietor who is a member of the family, clan or group.Applying those principles to the present appeal, the court notes, firstly, that there was no dispute that the suit property originated from family Land Parcel No. NgariamaThirikwa155. The respondents’ evidence before the trial court was that the original parcel constituted family land occupied by the children of the deceased, and was later subdivided, resulting in the creation of the suit property. Even the appellant acknowledged in his defence that the suit property was a resultant subdivision of the original family land inherited from their late father, Njiru Ngurungu.n.Secondly, the relationship between the parties is not in dispute. The appellant, the 1st respondent, the 3rd respondent and the deceased mother were all members of the same immediate family, while the 4th respondent is the daughter of the appellant’s deceased sister. The dispute therefore arose squarely within a family land arrangement and not between strangers.o.Thirdly, there was evidence before the trial court regarding occupation and utilization of the disputed portion by the 3rd and 4th respondents. Their case was that they had occupied and cultivated approximately half of the suit property during the lifetime of the deceased and had planted coffee, avocado trees, macadamia trees and other crops thereon. The 3rd and 4th respondents maintained that such occupation had existed openly and continuously without objection during the deceased’s lifetime and that the dispute only arose after her death.p.The appellant denied that assertion and maintained that the 3rd and 4th respondents only entered the land after the death of Maculata Wambui Njiru and after commencement of the succession proceedings. He further emphasized that the 3rd and 4th respondents were married women residing on their husbands’ land.The trial court, however, accepted the respondents’ evidence on occupation and utilization. As a first appellate court, this court is obligated to re-evaluate the evidence afresh while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify.Upon re-evaluating the evidence on record, this court notes that the respondents’ claim was not merely a bare assertion of entitlement. Their evidence was that the disputed portion had for a long period been utilized as the portion belonging to their mother and thereafter by them.q.Their evidence further sought to explain the family arrangement surrounding the registration of the suit property in the names of the appellant and the deceased mother. Significantly, the respondents’ evidence was that all the sons in the family had already received portions of land equivalent to approximately one acre each, and that the appellant himself occupied and utilized only half of the suit property, equivalent to the portions occupied by his brothers. According to the respondents, the remaining half portion represented the deceased mother’s portion intended for her daughters, namely the 3rd respondent, and the late Madaline Njoki Njiru, whose interest is now pursued through the 4th respondent.r.That evidence, in the view of this court, was important because it addressed the underlying purpose of the joint registration. The respondents’ case was not simply that the deceased owned half of the land and that they inherited it through succession.Rather, their case was that the appellant’s registration alongside his mother was never intended to confer upon him exclusive beneficial entitlement to the entirety of the suit property to the exclusion of the daughters of the family.Further, the appellant himself acknowledged that the 4th respondent had been raised within the family following the death of her mother. and that she bore his surname “Ndambiri.” While that fact alone cannot establish trust, it lends support to the respondents’ contention that the family arrangement concerning the disputed portion was not entirely inconsistent with the respondents’ claim of beneficial entitlement.s.The appellant placed considerable emphasis on the fact that the 3rd and 4th respondents were married and allegedly resided on their husbands’ land. However, marriage alone could not automatically defeat an otherwise legitimate claim founded on customary or family trust. The relevant inquiry remained whether the evidence demonstrated that the respondents possessed a recognizable beneficial interest in the disputed portion arising from the family arrangement surrounding the land.Having re-evaluated the evidence as a whole, this court is satisfied that the respondents had established that the suit property originated from family land; that the parties were members of the same family; that the disputed portion had historically been associated with the deceased mother’s share; and that the 3rd and 4th respondents had occupied and utilized that portion for a considerable period.t.In those circumstances, this court is persuaded that the learned trial magistrate cannot be faulted for concluding that the appellant held part of the suit property subject to a family or customary trust in favour of the 3rd and 4th respondents. The appellant’s acquisition of legal title through survivorship did not thereby extinguish the beneficial interests arising from that trust. Accordingly, this issue is determined against the appellant.u.The appellant faults the learned trial magistrate for allegedly failing to properly analyse his evidence and submissions while according undue weight to the respondents’ case. He further contends that the trial court contradicted itself by recognizing the doctrine of survivorship, and nonetheless holding that the appellant held part of the suit property in trust for the 3rd and 4th respondents.Having carefully reconsidered the evidence on record, this court does not agree that the learned trial magistrate fundamentally misdirected herself on the law relating to survivorship. Where the appellant takes issue is that the trial court nonetheless proceeded to find that the appellant held part of the land in trust for the 3d and 4th respondents.However, as already observed under the preceding issues, recognition of survivorship did not necessarily preclude inquiry into whether the appellant’s title remained subject to an overriding customary or family trust. The two inquiries addressed different legal questions. One concerned the transmission of legal title, while the other concerned the beneficial entitlement. This court therefore, does not find the trial court’s reasoning contradictory merely because it recognized both doctrines, and it has no basis upon which to interfere with that finding.v.It is trite that an appellate court will not ordinarily interfere with findings of fact unless where shown that the trial court failed to take into account relevant matters; took into account irrelevant matters; misapprehended the evidence; or arrived at conclusions plainly unsupported by the evidence on record.This court further notes that the trial court did not divest the appellant of the entirety of the suit property. Rather, the learned trial magistrate found that the appellant was beneficially entitled to half of the land, while the remaining half was held in trust for the 3rd and 4th respondents. That finding was consistent with the evidence tendered regarding the family arrangement and occupation of the land. Ultimately, having independently re-evaluated the entire evidence on record and submissions tendered thereof, this court is not persuaded that the learned trial magistrate misdirected herself either on the law or on the evidence to warrant interference by this appellate court. This appeal therefore, lacks merit.w.Under Section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya, costs follow the event unless where the court directs otherwise on good grounds. As the appellant has failed in the appeal, I find no reasonable cause why he should not meet the respondents’ costs. 42.In view of the above determinations in this appeal, the court find and order as follows:a.That the appeal is without merit and is dismissed.b.That the trial court’s judgement delivered on 3rd January 2025, and decree arising therefrom, in Kerugoya MCELC Case No. E121 of 2022, consolidated with MCELC Case No. 33 “B” of 2023, is affirmed.c.The appellant to pay the respondents’ costs.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 20TH DAY OF MAY 2026.S. M. KIBUNJAELC JUDGEIn the presence of:Appellant – Mr. MuchiriRespondents – Mr. MugoKinyuaCharles - Court Assistant.