https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4768

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC NO. E012 OF 2025** JOSEPHINE KAARI GITARI [Suing as the legal representative of the Estate of TIMOTHY GITARI MUCHEKE(Deceased)]………………….…PLAINTIFF VERSUS PAUL MWITI MUCHEKE…………………..………………1ST DEFENDANT YETU SACCO LIMITED………………………..…………2ND DEFENDANT AND ANN MARY KAGENDO MUCHEKE……………..1ST INTERESTED PARTY LUCY GATWIRI MUTHAMA………………..…..2ND INTERESTED PARTY **JUDGMENT** 1. The Plaintiff herein, who is the Legal Representative of Timothy Gitari Mucheke [deceased], has approached the court *vide* Plaint dated the 01.12.2025 and wherein same has sought various reliefs. The reliefs sought at the foot of the Plaint are: 2. ***A declaration that L R No. Igoji/Kiangua/973 and LR No. Igoji/Kiangua/1662 are ancestral lands and are held by the 1st Defendant in trust for the Plaintiff and the interested parties.*** 3. ***An order that by securing colossal loan and Kshs. 500,000/= from the 2nd Defendant without consent and knowledge of the Plaintiff and interested parties, the 1st defendants is in breach of trust, and the charge are therefore null and void.*** 4. ***An order that the 2nd Defendant to unconditionally discharge the charges registered against LR No. Igoji/Kiagua/973 and LR No. Igoji Kiangua /1662 and seek an alternative and/or appropriate security to secure the loans advanced to the 1st defendant.*** 5. ***An order that the trust bestowed upon the 1st Defendantbe revoked and L. R. No. Igoji/Kiagua/973 and L. R. No. Igoji/Kiangua/12662 and the seek an alternative and/or appropriate security to secure the loans advanced to the plaintiff, 1st Defendant and the 1st and 2nd interested parties in equal common shares.*** 6. ***A permanent injunction restraining the 1st Defendant whether by himself or anyone else acting at his behest from interfering whatsoever with the plaintiff’s entitlement to, user and enjoyment of L R No. Igoji/Kiangua/973 and L. R No. Igoji/Kiangua/1662.*** 7. ***Costs of the suit and interests at court rates.*** 8. The Plaint beforehand is premised on various assertions. The assertions include: The Plaintiff is the widow and legal representative of Timothy Gitari Mucheke [deceased]; the deceased was a son of Festus Mucheke Ngaruni [now deceased]; Festus Mucheke Ngaruni died in the year 1969; by the time Festus Mucheke passed on, the adjudication process at Kiangua section was still ongoing; the adjudication process was concluded in 1974; that LR No. Igoji/Kiangua /973 and 884, [hereinafter referred to as the suit properties] were registered in the name of Joyce Kainyu Mucheke; Joyce Kainyu Mucheke was the widow of Festus Mucheke Ngaruni; and the suit properties were registered in the name of Joyce Kainyu Mucheke to hold on trust for the family. 9. Additionally, it has been contended that: Joyce Kainyu Mucheke [now deceased] was a step mother of Timothy Gitari Mucheke; Joyce Kainyu Mucheke later subdivided LR No. Igoji/Kiangua/884 into two portions; the resultants portions included LR Nos. Igoji/Kiangua/1661 and 1662; that LR No. Igoji/Kiangua/1661 was transferred to the KTDA; that Joyce Kainyu Mucheke retained LR. No. Igoji/Kiangua/1662 and 973; the two parcels of lands were later transferred to the 1st defendant; the transfer of two parcels to the 1st Defendant does not defeat the trust. 10. Moreover, it has been contended that: Upon the transfer of the suit properties to the 1st defendant, the 1st Defendant has since charged the properties to the 2nd defendant; the charge of the suit properties to the 2nd Defendant was undertaken without notice to and involvement of the plaintiff; the charge in favour of the 2nd Defendant was undertaken in breach of the trust; and the suit properties ought to be declared as belonging to Festus Mucheke Family. 11. The 1st Defendant duly entered appearance and filed a statement of defence dated the 10.03.2026. The 1st Defendant denied the assertions by and on behalf of the Plaintiff. In addition, the 1st Defendant averred thus: The suit properties belonged to and were registered in the name of Joyce Kainyu Mucheke [deceased]; Joyce Kainyu Mucheke transferred the suit properties to the 1st Defendant on the basis of gift; the transfer of the suit properties to the 1st Defendant was undertaken with the full knowledge of Timothy Gitari Mucheke [now deceased] and the interested parties; Timothy Gitari Mucheke did not impugn the transfers during his lifetime; the suit properties are not held on trust; and the claims by the plaintiffs are mischievous. 12. Moreover, the 1st Defendant posited that the suit properties were charged to and in favour of the 2nd defendant. In addition, it has been asserted that the charge in favour of the 2nd Defendant was lawful. 13. The second Defendant duly entered appearance and entered statement of defence dated the 10.03.2026. The 2nd Defendant has denied the assertions by /on behalf of the Plaintiff. In addition, the 2nd Defendant has posited thus: The suit property belonged to and was registered in the name of the 1st defendant; the 1st Defendant approached the 2nd Defendant for a financial facility; the 2nd Defendant generated a letter of offer; the letter of offer was duly accepted; thereafter the 2nd Defendant undertook a search on the suit properties; the search revealed that the suit properties were registered in the name of the 1st defendant; the suit properties were duly charged in favour of the 2nd defendant; the charge was registered; the registration of the charge was lawful; and the claims before the court are misconceived. 1. The subject matter came up pre-trial directions on the 14.05.2026, whereupon the advocates for the parties intimated that same had filed and exchanged their respective bundles of documents and witness statements. Furthermore, the advocates posited that the matter was ready for hearing. 2. The Plaintiffs’ case is anchored on the evidence of two [2] witnesses. The witnesses are: Yustus Kaburu Ngaruni and Jennifer Kaari Gitari. The witnesses testified as PW1 and PW2, respectively. 3. It was the testimony of PW1 [Yustus Kaburu Ngaruni] that same is familiar with the facts of this case. In addition, the witnesses averred that the disputing parties are children of his uncle. In particular, the witness averred that the Plaintiff is the widow of Timothy Gitari Mucheke [now deceased]. 4. The witness further averred that the same has since recorded a witness statement in respect of the subject matter. The witness referenced the statement dated the 01.12.2025 and which statement, the witness sought to adopt as his evidence in chief. Suffice it to state that the witness statement was duly adopted and constituted as the evidence in chief of the witness. 5. On cross examination by learned counsel for the defendants and the interested parties, the witness averred that the same has never visited the land adjudication office at Kiangua. The witness averred that he had indicated in his statement that Joyce Kainyu Mucheke went to the land adjudication office and thereafter caused the alteration. Moreover, the witness averred that the alteration[s] was done by Joyce herself. 6. While still under cross examination, the witness averred that he did not see Joyce undertaking the alteration at the Land Adjudication Office. In addition, the witness testified that same has not brought any documents to show the alterations that are said to have been done by Joyce. 7. It was the further testimony of the witness that same has indicated in his statement that the suit properties were transferred in the year 2020. Besides, the witness testified that he has also indicated that Joyce died in the year 2020. 8. The 2nd witness, who testified on behalf of the Plaintiff was Josephine Kaari Gitari. The witness testified as PW2. 9. It was the testimony of the witness that same is the widow of Timothy Gitari Mucheke [now deceased]. Moreover, the witness averred that by virtue of being the widow of the said deceased, same is conversant/familiar with the facts of the case. In addition, the witness averred that same has since recorded a witness statement dated the 01.12.2025. Thereafter, the witness sought to adopt and rely on the witness statement. Notably, the witness statement was duly adopted as the evidence in chief of the witness. 10. Moreover, the witness referenced a list and bundle of document[s] dated the 01.12.2025 containing 6 documents. The witness sought to tender and produce documents as exhibits. There being no objection to the production of the documents, same were duly admitted as exhibit P1 – P6, respectively. 11. Other than the foregoing, the witness adverted to the plaint dated the 01.12.2025 and thereafter sought to adopt the same. Instructively, the contents of the plaint were deemed as duly adopted. 12. On cross examination by learned counsel for the Defendant and interested party, the witness averred that she was married to Timothy Gitari Mucheke in the year 1988. In addition, the witness posited that the marriage was thereafter solemnized in the year 1999. The witness further stated that by the time she was getting married to Timothy Gitari Mucheke, the father of Timothy,[namely, her Father-in Law] was already dead. 13. It was the further testimony of the witness that even though Festus Mucheke was already dead, she [witness] gathered the information pertaining to the suit properties from her husband. The witness averred that she also gathered information from the documents, which were obtained from the land adjudication. Furthermore, the witness testified that she has adduced the documents before the court as Exhibits. 1. Upon being referred to the letter dated 21.11.1995, the witness intimated that the letter in question emanated from the chief. In addition, the witness posited that the letter indicated that Joyce was to get the titles which belonged to her [Joyce’s] husband. 2. Upon being referred to the green card in respect of the suit properties, the witness averred that the green card does not show that the land was being held in trust. In addition, the witness testified that LR No. Igoji/Kiangua/884 was subdivided in the year 1998. 3. It was the further testimony of the witness that upon subdivision of parcel number Igoji/Kiangua/884, two parcels of land arose. In particular, the witness stated that the subdivision culminated into the creation of LR No. Igoji/Kiangua/1661 and 1662, respectively. Additionally, the witness testified that Parcel No. Igoji/Kiangua /1661 was later transferred to KTDA. Besides, the witness averred that he does not know whether Timothy Gitari lodged any objection/challenge against the of the transfer of LR No. Igoji/Kiangua /1661 to KTDA. 4. While still under cross examination, the witness testified that she is challenging the transfer of parcel No. Igoji/Kiangua /1661 to KTDA. However, the witness shortly, beat an about turn and stated that she does not wish to challenge the transfer of parcel No. Igoji/Kiangua /1661 in favour of the KTDA. 5. The witness testified that the transfer of the suit properties to the 1st Defendant took place in the year 2020. In addition, the witness averred that Joyce Kainyu Mucheke [deceased] passed on in the year 2022. Furthermore, the witness averred that Timothy Gitari Mucheke was aware of the transfer in favour of the 1st defendant. The witness also conceded that Timothy himself did not challenge the transfer of the suit properties in the name of the 1st defendant. 6. It was the further testimony of the witness that Timothy Gitari Mucheke, only passed on in the year 2024. Regarding, whether she stays on the suit lands, the witness averred that she does not stay on the suit land. On the contrary, the witness testified that she resides at Kinoru. 7. With the foregoing testimony, the Plaintiffs’ case was closed. 8. The 1st defendant’s case is predicated on the evidence of two [2] witnesses. The witnesses are Paul Mwiti Mucheke and Lucy Gatwiri Muthamia. The witnesses testified as DW1 and DW2. 9. It was the testimony of Paul Mwiti Mucheke [DW1] that same is currently a business person. In addition, the witness averred that he is also a director of the 2nd defendant. Moreover, the witness posited that he has since recorded and filed a witness statement. To this end, the witness referenced the statement dated the 12.01.2026 and which statement was duly constituted as the evidence of chief of the witness. 1. The witness further adverted to a list and bundle of document dated the 12.01.2026 containing 13 documents. Thereafter, the witness sought to tender and produced the documents as exhibits. Suffice it to state that the documents, were thereafter admitted and marked as exhibits D1 to D13, respectively. 2. It was the further testimony of the witness that he also filed a statement of defence. In this regard, the witness referenced the statement of defence dated the 12.01.2026. 3. On cross examination, the witness testified that Timothy Gitari Mucheke was his half-brother. In addition, the witness averred that the same is aware that Timothy Gitari and Himself [witness] filed a succession cause vide Meru HCC Succession No. 14 of 2025. Moreover, the witness averred that the succession cause was in respect of the estate of Festus Mucheke Ngaruni [deceased]. 4. While still under cross examination, the witness testified that the succession which was filed between him [witness] and Timothy Gitari Mucheke related to LR. No. Igoji/Kiangua /81 and not the Suit properties. The witness added that the succession cause was allowed and the land [plot number 81] was given to both himself and the deceased. 5. It was the further testimony of the witness that the land in question was sub-divided into two portions. However, it was the testimony of the witness that the transfer of the resultant sub-division[s] into the names of Timothy Gitari and himself [witness ] was later cancelled because of a challenge by his sisters. 1. Regarding, the suit properties, the witness testified that the same belonged to Joyce Kainyu Mucheke. Nevertheless, the witness testified that the suit properties were never held on trust. Moreover, the witness testified that the suit properties were transferred and registered in his name in the year 2014. The witness added that the by the time the transfer was being done, Timothy Gitari Mucheke was alive. 2. It was the further testimony of the witness that Timothy Gitari Mucheke was aware of the transfer of the land in favour of the witness. In fact, the witness added that the transfer was on the basis of gift. Furthermore, the witness testified that before the suit properties were transferred and registered in his name, their mother called a meeting. The witness further clarified that his sisters and Timothy, were aware of the transfer. 1. Regarding, whether Timothy Gitari used the suit property, the witness averred that Timothy did not use any of the suit properties. At any rate, the witness averred that Timothy had development[s] on the piece of land, which had been given to him by Jennifer. 2. On re-examination, the witness testified that the suit properties, were transferred to him by his mother [Joyce Kainyu] on the basis of gift. The witness thereafter refenced a copy of the affidavit filed in respect of Meru HC Succession E021 of 2021 and wherein same [witness] confirmed that Timothy was aware of the transfers. 3. The second witness who testified on behalf the 1st Defendant was Lucy Gatwiri Muthamia. She testified as DW2. 4. It was the testimony of the witness [DW2] that same is a sister of the 1st defendant. The witness also asserted that the Plaintiff is a sister in law. Moreover, the witness intimated that same has since recorded and filed a witness statement. To this end, the witness referenced the statement dated the 12.01.2026 and which statement the witness sought to adopt and rely on. 5. On cross examination by learned counsel by the Plaintiff, the witness testified that Timothy Gatari Mucheke was born from the first house. However, the witness posited that Timothy was brought up and raised alongside the witness and her siblings. Moreover, the witness testified that Timothy Gitari was brought up and taken care of by Joyce Kainyu Mucheke [now deceased]. 6. While still under cross examination, the witness testified that she was present when the two properties were being transferred to the 1st defendant. In particular, the witness as averred that the transfer of the properties was undertaken because Joyce Kainyu [mother of the witness] was sick and the 1st Defendant was the one who was taking care of the mother. 7. It was the further testimony of the witness that the transfer of the suit properties to the 1st Defendant was undertaken in the year 2014. Moreover, the witness clarified that the properties were gifted to the 1st defendant. Besides, the witness averred that the properties belonged to their mother [Joyce Kainyu] before same were transferred to the 1st defendant. 1. Regarding whether she has any interest/claim in respect of the suit properties, the witness asserted that she has no interest over the suit properties. On the contrary, the witness affirmed that the suit properties were gifted to the 1st defendant. 2. With the foregoing, the testimony the case for the 1st Defendant was closed. 1. The 2nd Defendant’s case was premised on the evidence of one [1] witness, namely; Nicholas Kimathi. The witness testified as DW3. 2. It was the testimony of the witness that same is an employee of the 2nd defendant. Moreover, the witness posited that currently, he is the credit manager of the 2nd defendant. To this end, the witness averred that he is familiar with the facts of the case. 3. In addition, the witness testified that he has since recorded and filed a witness statement. The witness thereafter referenced the statement dated the 10.03.2026 and which statement was duly adopted and constituted as the evidence in chief of the witness. 4. Furthermore, the witness adverted to the list and bundle of documents dated the 10.03.2026, containing five [5] documents. Thereafter, the witness sought to produce the documents as exhibits before the court. In the absence of objection to production, the documents were duly produced and admitted as exhibits D1 – D5, respectively, on behalf of the 2nd defendant. 5. The witness also referenced the statement of defence dated the 10.03.2026. In particular, the witness invited the court to find and hold that the claims by the Plaintiff are untenable. 6. On cross examination by learned counsel for the Plaintiff, the witness averred that the 1st Defendant is indeed a director of the 2nd defendant. In addition, the witness posited that the 2nd Defendant gave out a banking facility to the 1st defendant. Nevertheless, the witness clarified that the facility which was given out in favour of the 1st defendant, has since been fully repaid. The witness affirmed that the loan was cleared. 7. With the foregoing, testimony the case for the 2nd Defendant was closed. 8. Following the conclusion of the hearing, the advocates for the parties sought time to file and exchange written submissions. To this end, the court proceeded to and issued directions on the filing and exchange of the submissions. The directions were: The Plaintiff shall file and serve written submissions within 14 days from the date of the directions; the defendants and the interested parties, shall file and serve written submissions within 14 days from the date of service; and the Plaintiff shall be at liberty to file rejoinder submissions [if any] within 7 days from the date of service. 9. The Plaintiff filed written submissions dated the 23.06.2026 and wherein the Plaintiff has highlighted four [4] key issues. The issues are: Whether the suit lands are ancestral property held under customary for the descendants of the late Festus Mucheke Ngaruni; whether the 1st defendant’s exclusive registration and subsequent Charge of the suit lands constitute[s] a flagrant breach of trust under **Section 26 of the Land Registration Act, 2012**; Whether the 2nd Defendant is *bona fide* mortagee for value without notice, or Whether the commercial charges are null and void for failing to recognize overriding possessory interest under **Section 28 [b] of the Land Registration Act**; and Whether this court ought to revoke the trust and order registration of the suit lands in the names of the Plaintiff; 1st defendant; and the interested parties, in equal undivided common shares. 10. The defendants filed written submissions dated the 02.07.2026 and wherein the named defendants have highlighted three [3] issues. The issues are: Whether the suit properties were ancestral lands held in trust for the parties; whether the transfer of the properties to the 1st Defendant constituted gift *inter-vivos*; and whether the 1st Defendant lawfully, charged the suit properties to the 2nd Defendant or otherwise. 11. Having reviewed the pleadings; the evidence tendered [both oral and documentary]; and having considered the written submissions filed by /on behalf of the parties, two [2] issues emerge for determination. The issues are: Whether the Plaintiff has proved the plea/claim of trust pertaining to the suit properties or otherwise; and What reliefs [if any] ought to be granted. 1. It is the Plaintiff who has approached the court contending that the suit properties, which were previously registered in the name of Joyce Kainyu Mucheke [now deceased], are held on trust for the descendants of Festus Mucheke [deceased] and who was the father in law of the plaintiff. To this end, there is no gainsaying that the Plaintiff is chargeable with the burden or obligation of proving the plea of trust. 2. It is equally important to underscore that proof of trust, requires cogent and plausible evidence. In this regard, it was incumbent upon the Plaintiff to provide the evidence and to show that her late husband [Timothy Gitari Mucheke], was entitled to the suit properties on the basis of trust. It is worthy to highlight that the Plaintiff is before this court, in her capacity as the legal representative of Timothy Gitari Mucheke [deceased]. 3. Insofar as the Plaintiff is before the court, in her representative capacity, it behoves the plaintiff, to demonstrate that the estate, whose interests same [plaintiff] is propagating, indeed held an interest. Suffice it to state that, if the estate being represented by the plaintiff, did not hold or stake a claim to the suit properties, then the plaintiffs claim becomes remote and far removed. Simply put, if Timothy Gitari Mucheke [now deceased] never laid a claim of trust, over and in respect of the suit properties, then there is no way that the Plaintiff herein, who is an administratix of the estate, can now be heard to claim that which her principal did not claim. 1. It is equally important to underscore that a legal representative of the estate of the deceased, the current Plaintiff not excepted, can only propagate a cause of action which survived the estate, which is being represented. If the estate did not hold a stake and thus had no cause of action, then the administrator cannot create one, for her/himself. 2. Though the Plaintiff has approached the court that the suit properties were held on trust, evidence abound that Timothy Gitari Mucheke [deceased], was aware of and privy to the transfer of the suit properties to the 1st defendant. In addition, there is evidence that Timothy Gitari Mucheke [now deceased] did not seek to impugn or challenge the transfers of the suit properties to and in favour of the 1st defendant. 3. I beg to point out that the suit properties, are reported to have been transferred to and in favour of the 1st Defendant in the year 2014. It is equally important to underscore that Timothy Mucheke [deceased] knew of the transfers; and lived for a duration of more than ten years, without filing any challenge. 4. In my humble assessment, and considering the posture that was taken by Timothy Gitari Mucheke, during his lifetime, I come to the conclusion that Timothy himself conceded [acknowledged] that Joyce Kainyu Mucheke [now deceased] owned the suit properties and was seized of capacity to transfer same to the 1st defendant. 5. Quite clearly, if Timothy Gitari Mucheke [now deceased] held a claim over the suit properties, on the basis of trust or otherwise, then nothing was easier, than Timothy himself asserting his rights. He did not. There must have been a reason, why Timothy Mucheke, did not make any claim or assert any right[s] to the suit properties. 6. At this juncture, it is apposite to reproduce a segment of the evidence of PW2 while under cross examination. The witness stated thus: “***Parcel number 884 was subdivided. It was subdivided on the 17.03.1998. The subdivision gave rise to two titles. The titles were 1661 and 1662. Parcel number 1661 was transferred to and registered in the name of KTDA [Kagumoni Tea Buying Center]. I do not know whether Timothy[now deceased] ever challenged the subdivision or eventual transfer of plot number 1661 to KTDA]. I am challenging the transfer of parcel number 1661 to KTDA****”* 1. While still under cross examination, PW2 proceeded thus: “I now wish to say that I may not challenge the transfer to and in favour or KTDA [Kagumoni Tea Buying Centre]. **The transfers in favour of the 1st Defendanttook place in 2020. I do confirm that Timothy [deceased] knew of the transfers in favour of the 1st defendant. Timothy passed on in 2024. Timothy did not challenge the transfers in favour of the 1st defendant**.” 1. The foregoing testimony, vindicates the position that Timothy Gitari Mucheke [deceased] knew of the transactions affecting the suit properties. He did not raise any question. He did not seek to impugn the transactions on the basis of trust. 2. I am afraid that the Plaintiff herein has no legal basis, taking into account her representative capacity, to stake a claim to the suit properties, on the basis of trust. Surely, the Plaintiff herein cannot purport to be more knowledgeable about the historical background and ancestry, underpinning the suit properties, than her predecessor [the deceased]. 3. To my mind, the Plaintiff herein did not tender any credible or plausible evidence, to warrant a finding of trust. It suffices to state that a court of law will not presume trust, unless there exist compelling evidence to warrant such a presumption. In the absence of evidence, the court must not disturb the obtaining legal status. 4. The law pertaining to proof of trust is now well settled. It suffices to reference the holding in the case of **Kazungu Fondo Shutu & another v Japhet Noti Charo & another [2021] KECA 592 (KLR)**. The court of appeal reviewed several decisions on the same point and held thus: **9. In Juletabi African Adventure Limited & another v Christopher Michael Lockley [2017] eKLR, this Court dealt with the issue of trust at length. The Court made reference to Twalib Hatayan Twalib Hatayan & Anor v Said Saggar Ahmed Al-Heidy & Others [2015] eKLR and re-stated the law on trusts as follows: -** **“According to the Black’s Law Dictionary, 9th Edition; a trust is defined as** **“1. The right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary).”** **Under the Trustee Act, “… the expressions “trust” and “trustee” extend to implied and constructive trust, and cases where the trustee has a beneficial interest in the trust property…”** **In the absence of an express trust, we have trusts created by operation of the law. These fall within two categories; constructive and resulting trusts. Given that the two are closely interlinked, it is perhaps pertinent to look at each of them in relation to the matter at hand. A constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrong doing. … It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such as would demand that equity treats the legal owner as a trustee, the law will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit (see Halsbury’s Laws of England supra at para 1453). As earlier stated, with constructive trusts, proof of parties’ intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment. …** **A resulting trust is a remedy imposed by equity where property is transferred under circumstances which suggest that the transferor did not intend to confer a beneficial interest upon the transferee ...** **This trust may arise either upon the unexpressed but presumed intention of the settlor or upon his informally expressed intention. (See Snell’s Equity 29th Edn, Sweet & Maxwell p.175). Therefore, unlike constructive trusts where unknown intentions maybe left unexplored, with resulting trusts, courts will readily look at the circumstances of the case and presume or infer the transferor’s intention. Most importantly, the general rule here is that a resulting trust will automatically arise in favour of the person who advances the purchase money. Whether or not the property is registered in his name or that of another, is immaterial (see Snell’s Equity at p.177) (supra).”** **30. The argument by the appellants was that there was a constructive trust which was breached by the 1st respondent. The 1st respondent on the other hand argued that he inherited the suit property from his late father, and that the suit property was just a small portion of Plot M5 which belonged to his late father.** **31. As earlier stated, the existence of a trust is a question of evidence. In the Juletabi case (supra), the court held that the onus lies on the party relying on the existence of a trust to prove it through evidence. That is because:** **“The law never implies, the Court never presumes a trust, but [only] in case of absolute necessity. The Courts will not imply a trust save in order to give effect to the intentions of the parties. The intention of the parties to create a trust must be clearly determined before a trust will be implied.”** 1. I had pointed out that the burden of proof lay on the shoulders of the plaintiff. The burden could only be discharged by tendering credible evidence. Where no credible evidence is tendered, then the court must return a binary finding of zero [0]. That means, that the case is not proven. 1. Before concluding on this issue, I beg to cite the holding in the case of **Jamal Salim v Yusuf Abdulahi Abdi & another [2018] KECA 14 (KLR).** The Court of Appeal, while dealing with burden of Proof, in civil matters stated thus**:** **“If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule than one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”** 1. Next, is the issue of the reliefs [if any] that ought to be granted. The Plaintiff has sought a plethora of reliefs. Importantly, the Plaintiff sought for a declaration that the suit properties are ancestral lands and held by the 1st Defendant in trust for the Plaintiff and the interested parties. However, while discussing issue number one, elsewhere herein before, I have pointed out that the Plaintiff has not demonstrate the plea of trust. 2. I beg to reiterate that it is not enough to make an assertion in the body of the pleading and throw same on the face of the court. The party who makes the assertion must prove it. The Plaintiff did not prove the claim[s] and thus the declaration sought, cannot issue. 3. The other limb of the claim touches on the remedy being sought on behalf of the interested parties. It suffices to state that the second interested party [Lucy Gatwiri Muthama] testified before the court and stated thus: “ **I do wish to state that I have no interest over and in respect of the suit properties.”** 1. On the basis of the said testimony, there is no gain saying that the Plaintiff herein cannot purport to be propagating a claim on behalf of the interested parties. In any event, it suffices to underscore that the Plaintiff did not have the authority of the interested parties, to plead on their behalf. 2. Regarding the prayer for permanent injunction, I beg to state that same can and of does issue in appropriate circumstances. However, a court of law will be slow and reluctant to issue such an order, as against the registered owner of the property. There must be a peculiar and exceptional situation to warrant such an order. In the instant case, none has been proven/established. 3. In the case of **Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR),** the Court of Appeal stated as hereunder: **“It must also be remembered that it is a serious thing to restrain a registered proprietor of a property over what is undeniably his unless there are justifiable grounds to do so.”** 1. The foregoing excerpt, speaks to the subject matter. It is on all fours with the dispute beforehand. I do wish to add anything more. 2. Regarding costs, it is evident that the Plaintiff is a sister in-law of the 1st defendant. There is no gainsaying that the parties herein, *save* for the 2nd defendant, are related. In the premises, it would not be apposite to condemn the Plaintiff to bear the costs of the suit, despite having originated the instant suit. Such condemnation, may not bode well, in the interests of the Family. To this end, I am guided by the principles laid down in the case of **Athi River Steel Plant Limited v Rao & 4 others [2025] KESC 23 (KLR).** **Conclusion:** 1. It was incumbent upon the Plaintiff to place before the court evidence to demonstrate that the suit properties were held on trust. The Plaintiff failed to tender cogent and plausible evidence. It suffices to state that a court of law must only act on the basis of evidence and not on assumptions. 2. Having failed to prove her case, the only available recourse is to dismiss the claim. In any event, the suit by the Plaintiff is devoid of merits. It is a sure candidate for dismissal. **Final orders:** 1. Flowing from the foregoing analysis, the final orders that commend themselves to the court are: 2. ***The suit be and is hereby dismissed.*** 3. ***Each party shall bear own costs.*** 4. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU THIS 22ND DAY OF JULY, 2026** **OGUTTU MBOYA, FCIArb; CPM [MTI].** **JUDGE** In the presence of**:** Court Assistant: Zakayo Mr. Gitonga holding brief for Mr. Kaumbi for the Plaintiff N/a for the Defendants N/a for the Interested Parties.