https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3757

Njoroge v Njoroge (Environment and Land Appeal E064 of 2024) [2026] KEELC 3757 (KLR) (17 June 2026) (Judgment) Neutral citation: [2026] KEELC 3757 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Appeal E064 of 2024 JA Mogeni, J June 17, 2026 Between Hannah Wambui Njoroge Appellant and Bernard Njoroge Njoroge Respondent (Being an appeal from the Judgment of the Honorable Magistrate Hon M. Sudi Principal Magistrate delivered on 19th June 2024 in ELC Case E 30 of 2024 at Kiambu Chief Magistrate’s Court) Judgment 1.In the lower Court, the Appellant was the Plaintiff and the Respondent the Defendant. The parties are related, the Respondent is a grandson to the Appellant. That on or about 9/07/2001 the Appellant transferred her rights in title to the Defendant/Respondent and another Elizabeth Wanjiru Njoroge who is not a party to the suit. The transfer was made as a gift Mortis Causa and the transferees were to hold the property in trust for the rest of the Applicants’ female children as the property is too little to be subdivided into 5 equal portions. 2.That the children of the Appellant/Plaintiff have developed the property without any interference but on or about the month of February 2022 the Respondent issued a three-month eviction notice to the Appellant together with any other person that has developed the property. As a result the Plaintiff moved to Court seeking the following:a.A permanent injunction restraining the Defendant or his agents, and or anybody else claiming under it from selling or otherwise howsoever disposing off the Plaintiff’s property under reference number Ndumberi/ Tinganga/2287b.A permanent injunction restraining the Defendant or his agents, and from eviction the Plaintiff from the suit property under reference number Ndumberi/ Tinganga/2287c.A declaration that the Defendant’s intended eviction of the Plaintiff from the property under reference number LR No. Ndumberi/ Tinganga/2287 is invalid, unlawful, illegal, null and void.d.An order that the Defendant’s right in the title of the suit property be revoked and the property be reverted back to the Plaintiffe.Costs and interests of this suitf.Any other or such further relief as this Honorable Court may deem just and fit to grant. 3.By a Statement of Defence dated 23/06/2022, the Respondent vehemently denied the averments contained in the plaint and put the Appellant to strict proof. He averred the Appellant had transferred the suit property voluntarily to the Defendant and the Appellant’s daughter Elizabeth Wanjiru Njoroge as joint owners with absolute rights in 2005 and title was issued on 10/01/2005. The transfer was not conditional nor dependent upon a happening of a specific occasion. Meaning there was no trust as alleged by the Appellant and that the Defendant has lived and constructed his home on the parcels and he has lived there for 17 years. At the same time the Plaintiff has been cultivating coffee on the said suit parcel and they have lived together peacefully 4.He urged the trial Court to dismiss the suit with costs as Elizabeth Wanjiru Njoroge and the Defendant be declared as absolute owners. 5.The matter proceeded to a hearing, and the Appellant testified as PW1 and called no witnesses. The Respondent also testified as DW1 and called no other witness. 6.After hearing parties, their cases were closed, submissions were filed and impugned judgment was rendered on 19/06/2024. In dealing with the issue of trust, the learned trial magistrate observed that there was no proof of trust as initially pleaded and there was no notice to vacate that was produced in evidence. That on the basis of the evidence presented the Court came to the conclusion that the land was transferred and belongs to the Defendant alongside the mentioned Wanjiru. 7.Thus, the Defendant is entitled to the use, enjoyment and mesne profits sought on the suit land Ndumberi/Tinganga/2287. With that the Learned Magistrate dismissed the plaint and declared the Defendant and Elizabeth Wanjiru Njoroge as bona fide co-owners of the land known as Ndumberi/Tinganga/2287. He also issued a permanent injunction to restrain the Plaintiff or her agents from continued interference of the Defendant’s rights. 8.He also decreed that the co-owners were free to partition the suit property in two equal portions. 9.It is this judgment that is the subject of this appeal. The Appellant filed her memorandum of appeal dated 19/06/2024 in which he raised the following 7 grounds of appeal: -a.The Magistrate erred in law and fact in failing to uphold the existence of a customary trust in Ndumberi/Tinganga/2287 despite glaring evidence.b.The trial magistrate erred in law and fact in reaching the conclusion of the Plaintiff’s intention of transferring the suit land to her daughter and grandson.c.The trial magistrate erred in law and fact in relying on unrelated precedent in arriving at a wrong conclusiond.That the trial magistrate erred in law and fact in assuming facts that were not supported by evidencee.The trial magistrate erred in law and fact in reaching the conclusion that the Defendant and Elizabeth Wanjiru had indefeasible titles.f.The trial magistrate erred in law and fact by not considering the plaint in its entirety together with the supporting documents and thereby arriving at the wrong conclusion.g.The trial magistrate erred in law and fact by making orders that were not pleaded. 10.Accordingly, the Appellant prays for the entire Judgment of Hon. M. Sudi delivered on 19/06/2024 to be set aside and the Court to declare the existence of a customary trust. 11.As directed by the Court, the appeal was canvassed by written submissions. Submissions 12.Hannah Wairimu Njoroge, the Appellant in submits and challenges the lower Court's dismissal of her claim over land parcel Ndumberi/Tinganga/2287, which she inherited from her deceased husband and subsequently transferred to her grandson (the Respondent) and one of her daughters in February 2002. The Appellant contends that this transfer was made in trust for her remaining daughters, who she feared would be disinherited upon her death, and not as an absolute gift. 13.She contends that the trial magistrate found no documentary evidence of a trust and treated the transaction as a gift inter vivos, relying on the English authority of Sen v Headley (1991) Ch 425. The Appellant submits that the magistrate fundamentally erred in this finding, as Section 28(b) of the Land Registration Act expressly provides that registered land is subject to overriding interests including customary trusts, which need not be noted on the register. 14.That this position is fortified by the case of Kamau v Thiga (Environmental and Land Appeal No. 5 of 2021), wherein Justice Gacheru held that customary trusts are non-registrable overriding interests that run with the land, and by the case of Mbui Mukangu v Gerald Mutwiri Mbui (CA No. 281 of 2000), wherein the Court of Appeal affirmed that customary trust is a concept of intergenerational equity where land is held by one generation for the benefit of succeeding generations. 15.The Appellant further submits that to the extent the transfer constituted a gift, it was one made in contemplation of death governed by Section 31 of the Law of Succession Act, and that the magistrate erred in dismissing this argument solely on the basis that seventeen years had elapsed since the transfer. It is submitted that Section 35 of the Law of Succession Act expressly preserves the donor's right to demand return of the gift at any time before death, rendering the passage of time immaterial. 16.Additionally, the magistrate's finding that the Appellant adduced no proof of illness is contested, with reliance placed on Section 62 of the Evidence Act, which provides that all facts except the contents of documents may be proved by oral evidence, thereby rendering the Appellant's oral testimony of her illness legally sufficient. The Appellant also takes issue with the magistrate's assumption that the other female children were excluded from the suit property on account of their marital status, submitting that such reasoning is unconstitutional under Article 27 of the Constitution of Kenya, which prohibits discrimination on grounds of gender and marital status, a principle affirmed in Re Estate of Solomon Ngatia Kariuki (deceased) (2008) eKLR, where Justice Makhandia held that the Law of Succession Act makes no distinction between married and unmarried daughters in matters of inheritance. 17.Finally, the Appellant submits that the trial magistrate exceeded her jurisdiction by issuing orders that were neither pleaded nor proved, specifically a permanent injunction against the Appellant and an order for subdivision of the suit property, the latter of which directly affects Elizabeth Wanjiru Njoroge, a co-owner who was not a party to the proceedings. Relying on Onyango Oloo v Attorney General (1986–1989) EA 456, wherein the Court of Appeal held that denial of the right to be heard renders any decision null and void ab initio, the Appellant urges that the said orders violated the rules of natural justice. 18.In her submissions the Appellant identified the following issues for determination determination before this Honourable Court being :i.whether the trial magistrate erred in failing to uphold the existence of a customary trust over Ndumberi/Tinganga/2287;ii.whether the magistrate erred in relying on unrelated precedent and misconstruing the Appellant's intention in transferring the suit land;iii.(whether the magistrate erred in assuming facts unsupported by evidence in concluding that the Respondent and Elizabeth Wanjiru held indefeasible titles;iv.whether the magistrate erred in failing to consider the plaint and supporting documents in their entirety and in issuing orders not pleaded; andv.whether the magistrate erred in issuing subdivision orders affecting a party not joined in the suit. 19.In his submissions, the Respondent opposes the appeal and urges this Honourable Court to uphold the judgment and decree of the lower Court delivered by Hon. M. Sudi PM, which dismissed the Appellant's claim and declared the Respondent and Elizabeth Wanjiru as bona fide co-owners of land parcel Ndumberi/Tinganga/2287. 20.At the outset, the Respondent invokes the doctrine of finality in litigation, drawing from the East African Court of Appeal's pronouncement in Lakhamshi Brothers Limited v R. Raja & Sons (1966) EA 313, wherein Sir Charles Newbold P. held that it is in the interest of all persons that there should be an end of litigation. The Respondent submits that the present appeal is nothing more than an attempt by the Appellant to have a second bite at the cherry, and that a careful perusal of the record of appeal, particularly the pleadings at page 100, reveals that the Appellant's averments were baseless and unsupported by evidence, the only document adduced being a green card that merely confirms registered ownership of the suit property in the names of the Respondent and Elizabeth Wanjiru jointly. 21.The Respondent further submits that the two principal limbs of the Appellant's case, namely that the transfer constituted a donatio mortis causa and that the suit property was held on customary trust, were both fatally undermined by the Appellant's own evidence. The Respondent draws the Court's attention to page 187, lines 4 and 5 of the record of appeal, where PW1 expressly admitted that there was no evidence that the transfer was made in contemplation of death. This concession, the Respondent submits, is fatal to grounds 1 and 2 of the Memorandum of Appeal. Reliance is placed on In re Estate of Kabue Ole Lepate (Deceased) (2018) KEHC 4936 (KLR), where the Court held that it is impossible without evidence to contend that a deceased had an ailment proximate to death, and that a gift in contemplation of death must, in strict legal terms, be shown to have been made when death was inevitable within the immediate future. The Respondent submits that the Appellant has wholly failed to discharge this evidential burden, and that the trial magistrate correctly articulated this position in her judgment. 22.With respect to the remaining grounds of appeal, the Respondent submits that the trial magistrate correctly interpreted the law and addressed all issues at pages 170 and 171 of the record of appeal, and that the Appellant's complaints in this regard are an exercise in insincerity. 23.On the question of the orders granted, the Respondent specifically contends that the impugned orders, including the order for partition, were not made proprio motu but were expressly prayed for in the Respondent's Statement of Defence at page 134 of the record of appeal, thus defeating the Appellant's contention that unpleaded orders were issued. 24.Further the Respondent submits that this Honourable Court, sitting as a first appellate Court, is called upon in accordance with Peters v Sunday Post Ltd (1958) EA 424 to re-assess the entire evidence and make independent findings, and where, as here, the findings of the trial Court are supported by both evidence and the law, such findings ought not to be interfered with. The issues for determination arising from the Respondent's submissions are therefore:i.whether the Appellant discharged the evidential burden of proving a donatio mortis causa in compliance with the requirements of the Law of Succession Act;ii.whether the Appellant established the existence of a customary trust over Ndumberi/Tinganga/2287;iii.whether the trial magistrate correctly interpreted and applied the law in arriving at her decision; andiv.whether the orders granted by the trial magistrate, including the order for partition, were within the scope of the pleadings before the Court. 25.The Respondent prays that the appeal be dismissed with costs for lack of merit. 26.Being a 1st appeal, the power of this Court is set out in Order 42 Rule 32 of the Civil Procedure Rules. Being steered by the principles enunciated in the well-cited case of Selle v Associated Motor Boat Company Ltd [1968] EA123, this Court will not interfere with the impugned judgment save this Court satisfies itself the learned trial magistrate misdirected herself and thus arrived at an erroneous decision, undoubtedly exercised her discretion wrongly and occasioned injustice by such erroneous exercise. 27.Now to the matter at hand, I have carefully considered the records, rival submissions, and judicial precedents cited. This Court has condensed the grounds of appeal into the following: -a.Whether the learned trial magistrate erred in not finding the Respondent held the suit property in customary trust for the daughters of the Appellant.b.What orders should be issued? Analysis and Determination 28.Considering the 1st issue for determination, the Appellant's case, as pleaded, rested on two alternative legal foundations: first, that the transfer was a donatio mortis causa, and second, that the Respondent held the suit property on customary trust for the Appellant's daughters. On the question of donatio mortis causa, the Appellant's own witness, PW1, admitted at page 187 of the record of appeal that there was no evidence that the transfer was made in contemplation of death. 29.This admission as observed by the Respondent is fatal and dispositive of that limb of the Appellant's case. The requirements for a valid donatio mortis causa under Section 31 of the Law of Succession Act are conjunctive and must all be satisfied; the donor must have been contemplating the possibility of death arising from a present or imminent danger, there must have been delivery of possession or the means of possession, and the gift must have been intended to revert should the donor survive the illness or danger. 30.In re Estate of Kabue Ole Lepate (Deceased) (2018) KEHC 4936 (KLR), the Court held with clarity that without medical or cogent evidence demonstrating that the donor was near death and in extremis at the time of the purported gift, such a claim cannot be sustained. The Appellant placed reliance on Section 62 of the Evidence Act to argue that oral testimony suffices, but that provision cannot cure the fundamental concession made by PW1 herself, nor can it substitute for the substantive legal requirements under Section 31. 31.The passage of seventeen years between the transfer and the commencement of proceedings, coupled with the undisputed fact that the Respondent constructed his home on the suit property and resided thereon, further militates against any finding that the transfer was contingent or conditional. The trial magistrate's reliance on Sen v Headley (1991) Ch 425 has been criticised as an unrelated precedent, and there is merit in that criticism to the extent that Kenyan law on donatio mortis causa is governed by statute, specifically the Law of Succession Act, and not English common law principles. Nonetheless, this error in the choice of authority does not, without more, vitiate the magistrate's substantive finding that no credible evidence of contemplation of death was placed before the Court. 32.On the more weighty question of customary trust, this Court is of the considered view that the trial magistrate fell into error. Section 28(b) of the Land Registration Act is unambiguous: all registered land is subject to overriding interests, which expressly include customary trusts, and these interests bind the registered proprietor without need for notation on the register. This provision is given further life by Section 24 of the Land Registration Act, which, while conferring on a registered proprietor all rights and privileges attached to the land, does so expressly subject to overriding interests. 33.Section 26 of the same Act, which confers indefeasibility of title, is equally subject to those overriding interests and cannot be read in isolation to defeat a customary trust. The trial magistrate erred in demanding documentary proof of the trust as a precondition to its recognition, a requirement that fundamentally misunderstands the nature of customary trusts in Kenyan land law. In Kamau v Thiga (Environmental and Land Appeal No. 5 of 2021), Justice Gacheru held that customary trusts are non-registrable overriding interests that run with the land and are not defeated by registration. The Court of Appeal in Mbui Mukangu v Gerald Mutwiri Mbui (CA No. 281 of 2000) similarly recognised customary trust as a concept of intergenerational equity, where land passes from one generation to another with the presumption of trust being high where property moves within a family. The undisputed facts in this case are telling: the Appellant transferred the property to her own grandson, whom she had raised, and one of her daughters, whilst she herself continued to reside on and cultivate the land for over seventeen years without interruption. 34.The Respondent acknowledged this arrangement and lived on the same land peacefully. These facts, taken together, are entirely consistent with a customary trust arrangement and inconsistent with an absolute and unconditional transfer. The trial magistrate's assumption that the other daughters were excluded on account of their marriage was not only unsupported by evidence but, as submitted by the Appellant, runs afoul of Article 27 of the Constitution of Kenya, which prohibits discrimination on the grounds of gender and marital status. 35.This Court reaffirms the position taken in Re Estate of Solomon Ngatia Kariuki (deceased) (2008) eKLR, where Justice Makhandia held that the Law of Succession Act draws no distinction between married and unmarried daughters in matters of inheritance, and that customary practices that seek to disinherit daughters on the basis of marriage are archaic and unconstitutional. Furthermore, in case of Kiebia v M’lintari & another [2018] KESC 22 (KESC), which heavily relied on or affirmed principles similar to those discussed in cases like Kanyi v Muthiora [1984] KLR 712 the Court recognised that a mother's decision to place land in the hands of a trusted family member for the benefit of other dependants is a hallmark feature of customary trust arrangements, particularly in the Kikuyu community, and that such arrangements ought to be upheld in equity. 36.The Supreme Court of Kenya whose decision is binding upon this Court settled the non-exhaustive principles of customary trust in the case of Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR and on analysis of the provisions of the Registered Land Act (Repealed), the current Land Registration Act and judicial precedents, the Court held thus in paragraph 52 of its judgment: -“…we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor…The categories of a customary trust are therefore not closed. ..Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v.Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are:1.The land in question was before registration, family, clan or group land2.The claimant belongs to such family, clan, or group3.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.4.The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.5.The claim is directed against the registered proprietor who is a member of the family, clan or group.” 37.The Appellant is not only a member of the family but was the owner of the bestowed land to the Defendant and Elizabeth Wanjiru Njoroge who is a co-owner. 38.Thus on the question of the orders issued by the trial magistrate, this Court is satisfied that the order for partition and the permanent injunction restraining the Appellant were improperly granted. The order for partition directly affects Elizabeth Wanjiru Njoroge, who is a registered co-owner of the suit property but was not joined as a party to the proceedings. The rules of natural justice, as expounded by the Court of Appeal in Onyango Oloo v Attorney General (1986–1989) EA 456, are absolute in their requirement that a person whose rights are to be affected by a Court order must be afforded an opportunity to be heard; failure to do so renders the decision null and void ab initio. 39.To issue an order compelling the subdivision of property co-owned by a person who had no opportunity to address the Court is a plain violation of this principle and cannot stand. Further, the permanent injunction issued against the Appellant in respect of her own former property, and in terms that were not specifically sought in the manner granted, offends the well-established principle that Courts are bound by the reliefs pleaded before them. This Court, guided by the principles in Selle v Associated Motor Boat Company Ltd (supra) and Order 42 Rule 32 of the Civil Procedure Rules, is satisfied that the trial magistrate misdirected herself on the law relating to customary trust, made findings unsupported by evidence, and issued orders that occasioned injustice. This appeal therefore succeeds in part. 40.Having carefully considered the record of appeal, the rival submissions of counsel, and the applicable law, this Court makes the following findings and issues the following orders:i.The appeal is hereby allowed in part.ii.The finding of the trial magistrate that the suit property Ndumberi/Tinganga/2287 was transferred to the Respondent as an absolute gift inter vivos is hereby set aside.iii.It is hereby declared that the Respondent holds his interest in land parcel Ndumberi/Tinganga/2287 subject to a customary trust in favour of the daughters of the Appellant, as an overriding interest within the meaning of Section 28(b) of the Land Registration Act, and subject further to Sections 24 and 26 of the same Act.iv.The order of the trial magistrate directing the partition of land parcel Ndumberi/Tinganga/2287 into two equal portions is hereby set aside for want of jurisdiction, having been made in the absence of and without affording a hearing to Elizabeth Wanjiru Njoroge, a registered co-owner and a necessary party to such proceedings.v.The permanent injunction issued by the trial magistrate restraining the Appellant from interfering with the Respondent's rights is hereby set aside.vi.The Respondent and Elizabeth Wanjiru Njoroge are hereby restrained from selling, charging, transferring, or otherwise alienating land parcel Ndumberi/Tinganga/2287 in a manner prejudicial to the customary trust interests of the Appellant's daughters.vii.The Appellant is at liberty to remain in occupation of land parcel Ndumberi/Tinganga/2287 pending the resolution of the beneficial interests of all the daughters of the Appellant.viii.Each party shall bear their own costs of this appeal, this being a family matter.Orders Accordingly. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 17TH DAY OF JUNE, 2026...............................MOGENI JJUDGEIn the presence of:Ms. Wamaitha for the AppellantMs. Ndwiga for the RespondentMs. Lillian - Court Assistant