https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3721

Ikere & another (Suing as Administrators of the Estate of Miriam Edwin Mbugua) v Mbugua (Environment and Land Case Civil Suit 24 of 2021) [2026] KEELC 3721 (KLR) (15 June 2026) (Judgment) Neutral citation: [2026] KEELC 3721 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Case Civil Suit 24 of 2021 JA Mogeni, J June 15, 2026 AND IN THE MATTER OF THE TRUST OF L.R KIAMBAA/KIHARA/T.394 AND IN THE MATTER OF THE TRUSTEE ACT CAP 167, LAWS OF KENYA Between Eunice Wanjiku Ikere 1st Applicant Robert Munga Mbugua 2nd Applicant Suing as Administrators of the Estate of Miriam Edwin Mbugua and Peter Gacheru Mbugua Respondent Judgment 1.Vide an originating summons dated 28/05/2021 and amended on 11/03/2022 brought under the provisions of sections 45 and 57 of the Trustee Act; rules 2 and 4 of the Trustees Rules; section 1A, 1B and 3A of the Civil Procedure Act 2010, Order 40 Rules 1 of the Civil Procedure Rules 2010 and all other provisions of the Law the 1st and 2nd Applicants sought determination of the following questions:a.Was the Respondent registered in Trust as the proprietor of LR Kiambaa/Kihara/T.394b.Should a permanent injunction do issue restraining the Respondent by himself his agents, servants and/or employees from trespassing, entering, selling or in any other way interfering with the Applicant’s quiet possession and enjoyment of more particular LR Kiambaa/Kihara/T.394c.Should the registration of Peter Gacheru Mbugua as the owner of LR Kiambaa/Kihara/T.394 be cancelled forthwith and the Registrar of Titles do rectify the register and to enter the name of the Applicants as joint registered owners of all the suit property to hold on trust for Caroline Wambui Mbugua and their familiesd.Should a declaration be made that the LR Kiambaa/Kihara/T.394 be shared between the family memberse.That costs of this proceedings be borne by the Respondent 2.The originating summons was based upon the grounds set out on the face there of and the contents of the supporting affidavit of the 1st Applicant Eunice Wanjiku Ikere sworn on 11/03/2022 together with the exhibits thereto. The gist of the plaintiffs’ claim was that the applicants’ mother died on 19/12/2016 leaving the applicants and the Respondent living on the suit property the LR Kiambaa/Kihara/T.394 HAVING REDEEMED THE LAND FROM THE Bank due to a loan the Respondent had secured with the Bank of Baroda and having lived in the land since 1986 and therefore acquiring constructive trust. 3.The Deponent, Eunice Wanjiku Ikere, who also filed authority to plead from the 2nd Applicant dated 11/03/2022, in her capacity as the 1st Applicant and the duly appointed Administrator of the Estate of the late Miriam Edwin Mbugua as evidenced by the Grant of Letters of Administration annexed as "EWI 2", avers that the suit property known as L.R. No. Kiambaa/Kihara/1394 (the "suit land") is held by the Respondent in trust for the benefit of the family. 4.The Deponent clarifies that although the Respondent is the registered proprietor per the Official Search marked "EWI 8", the land was redeemed from a charge held by the Bank of Baroda after the Respondent’s employment was terminated in 1986, rendering him unable to service a staff loan as shown in annexure "EWI 3". To preserve the family’s residence, the late Miriam Edwin Mbugua negotiated with the Bank’s advocates, M/s Hamilton Harrison & Mathews, to settle the debt personally see annexures "EWI 4" and "EWI 5", utilizing proceeds from the sale of another family asset, Kabete/Karura/446, as detailed in the sale agreement marked "EWI 6". 5.The Deponent further deposes that the late mother fulfilled the repayment obligations in their entirety, with various payment receipts annexed as "EWI 7", thereby establishing a resulting or constructive trust in favor of the estate and the siblings. It is contended that the Applicants, including a sickly sibling, Caroline Wambui Mbugua, have maintained actual, open, and continuous possession of the suit land for a period exceeding thirty-three (33) years without seeking the Respondent's license or permission. This long-term occupation is characterized by extensive agricultural activities and the construction of permanent residential structures, the physical existence of which is corroborated by the photographs annexed and marked "EWI 9". 6.The applicant further expresses a well-founded apprehension that the Respondent intends to alienate the suit land to third parties, an action that would result in the summary eviction of the Applicants and cause irreparable loss and prejudice. Given that the suit land constitutes the Applicants' primary source of livelihood and sole ancestral home, the Deponent seeks the intervention of this Honorable Court to protect their equitable interests. She maintains that the Respondent’s recent demands for vacant possession are contrary to the established trust and the Applicants' rights accrued through long-term uninterrupted occupation, necessitating the injunctive and declaratory reliefs sought in the Amended Originating Summons. 7.The defendant filed several Replying Affidavits to the Originating Summons. The latest is filed and sworn by Peter Gacheru Mbugua on a date which is not indicated in the jurat. Nevertheless, the defendant denied the plaintiffs’ claim in its entirety. 8.The Respondent, Peter Gacheru Mbugua, in his Replying Affidavit, vehemently refutes the Applicants' claims, asserting his absolute and sole ownership of the suit property, L.R. Kiambaa/Kihara/T. 394. He clarifies the family history, noting that while they share a mother, the 1st Applicant’s father was the late Kepha Kitivo Ndolo, whose burial in Makueni in 2013 is evidenced by the program marked as "PGM1". The Respondent deposes that he personally purchased the suit land in 1986 from a non-relative for Kshs. 95,000/=, a fact corroborated by the purchase receipt and Land Certificate annexed as "PGM2" and "PGM3".He further clarifies that the Bank of Baroda loan was a staff housing loan advanced to him as an employee of over seven years to build his family home, and he challenges the Applicants to prove any purported termination of his services, dismissing their annexure "EW13" as a forgery. 9.Crucially, the Respondent provides comprehensive documentary evidence to prove that he, and not his late mother, redeemed the property. He annexes certified bank deposit vouchers ("PGM4") and official correspondence from the Bank of Baroda dated 1991 and 1997 by annexures "PGM5" and "PGM6" confirming full repayment of the loan by him. The legal discharge of the charge was handled by his advocates, Okach & Co. as shown by annexure "PGM7", and formally registered at the Kiambu Lands Registry in 2000 as shown by annexures "PGM8" and "PGM9", as further evidenced by the certified Green Card marked as "PGM12". He dismisses the letter "EW14" regarding his mother’s alleged payment as a fabrication, pointing out that it contains the wrong account number and lacks any formal banking consent or proof of payment. 10.TAHe Respondent explains that he only allowed his siblings to reside on the land out of brotherly compassion during times of desperation. He notes that Caroline Wambui Mbugua lives in a portion of his own house due to her illness, while the 2nd Applicant occupies a dilapidated, semi-permanent kitchen structure that has been declared a health hazard by statutory notices marked "PGM16". He denies that the Applicants have ever developed the land, asserting that all permanent structures are his own as shown by annexure"PGM17". To demonstrate his siblings' lack of claim, he produces an eviction notice from 1998 which is annexure "PGM18" and details how the 1st Applicant herself purchased alternative land in Ndeiya as per annexure "PGM19" and allotted portions to the family in 2012. He maintains there is no trust, express or implied, and prays the Court to dismiss the suit as an attempt to defraud him of his primary investment. 11.The Applicant in her further affidavit sworn on 18/07/2024 by Eunice Wanjiku Ikere, informs the Honourable Court of her diligent efforts to verify the documentary evidence by visiting the Bank of Baroda and their legal representatives to seek formal certification. She deposes that, acting on the instructions of the Bank’s advocates received on 8/07/2024, she issued formal requests through her own counsel, which are now produced and marked as “EWI 1a” and “1b”. The Deponent further clarifies the outcome of these inquiries by bringing to the Court's attention a response from the Bank’s lawyers dated 15/07/2024, marked “EWI 2”, which confirms that they indeed handled the legal matter involving the Respondent during the 1988/1989 period, though they are presently unable to authenticate the copies as the original files are no longer in their custody. 12.Furthermore, she acknowledges receipt of a correspondence from the Bank of Baroda dated 12/07/2024, explaining their inability to certify the said documents based on a standard ten-year record retention policy, thereby explaining the necessity of relying on the available secondary evidence to establish the historical facts of the suit. 13.The Respondent, Peter Gacheru Mbugua, in his Response to the Further Affidavit, vide a Replying Affidavit sworn on 5/11/2024 strongly objects to the Applicants' attempts to validate their claims, characterizing their recent visits to the Bank of Baroda (K) Limited as a desperate effort to influence bank staff and unlawfully intrude into his private financial records, specifically his staff housing loan Account No. 8124206. 14.He points out that both the Bank and the firm of Hamilton Harrison & Mathews have rightfully declined to authenticate the Applicants' documents. The Respondent reiterates that the letter relied upon by the Applicants contains a fundamental error in the property description, citing it as "Kihara/T 394" instead of the correct title, Kiambaa/Kihara/T.394, and further maintains that the payment receipts produced have been maliciously tampered with, specifically noting that the bottom sections which would identify the actual payee and the bank cashier have been deliberately excised to mislead the Court. 15.Furthermore, the Respondent deposes that the correspondence marked as Exhibits 7 and 8 are outright forgeries, reinforcing his position that the Bank of Baroda never instructed any law firm or auctioneers to alienate the suit property. He denies ever having communicated with Hamilton Harrison & Mathews regarding loan arrears and suggests that the Applicants are attempting to build a fraudulent case using documents that were stolen from his residence and subsequently altered. To decisively settle the matter, the Respondent expresses his intention to summon witnesses from the Bank of Baroda to testify to the veracity of his own records, as previously detailed in his Replying Affidavits. He concludes by averring that the suit is a bad-faith attempt to defraud him of his legally acquired property and prays that the Honourable Court dismisses the Applicants' further submissions with costs. 16.The Respondent filed a Further Affidavit sworn on 23/05/2025, deposes that he remains the indefeasible registered proprietor of the suit property, Title No. Kiambaa/Kihara/T.394, which he acquired strictly through a lawful purchase. He avers that the current suit is a continuation of a concerted and fraudulent scheme by the Applicants to dispossess him of his property. The Respondent brings to the Court's attention that the Applicants had previously attempted to litigate this matter within the succession jurisdiction under High Court Kiambu Succession Cause No. 84 of 2018, where they sought to include the suit land as part of the assets of the late Miriam Edwin Mbugua. 17.To buttress his defense of res judicata or the finality of earlier judicial findings, the Respondent annexes a certified copy of the ruling marked “PGM 1”, delivered pursuant to his Notice of Motion dated 7/09/2023. He points out that the Court in that matter ruled in his favour, effectively confirming that the suit land does not form part of the deceased's estate. The Respondent maintains that this previous judicial determination exposes the Applicants' current claim as an unlawful attempt to re-litigate a settled issue and a clear attempt to defraud the rightful owner. 18.In closing, the Respondent deposes that during the aforementioned succession proceedings, the Applicants failed to raise the issue of the alleged staff loan repayment by the deceased to the Bank of Baroda Kenya Limited. He contends that the narrative presented in the Amended Originating Summons regarding the redemption of the property is a mere afterthought and a fabrication intended to mislead the Honourable Court. Consequently, the Respondent moves the Court to strike out or dismiss the Amended Originating Summons dated 11/03/2024 with costs awarded to him. 19.As already stated above the parties filed multiple affidavits I conclude with this affidavit filed by the 1st applicant in response to the Respondent’s further affidavit dated 23/05/2025. 20.The 1st Applicant, Eunice Wanjiku Ikere, in her Further Replying Affidavit sworn on 8/09/2025, seeks to clarify and rebut the Respondent’s assertions regarding the legal effect of the ruling delivered in Kiambu HC. Succession Cause No. 84 of 2018. The Deponent deposes that the ruling dated 17/11/2023, which the Respondent has exhibited to his previous affidavit, was strictly limited in scope to the review of an apparent error on the face of the record. Specifically, she avers that the Court was merely correcting a clerical misdescription where the suit property, Kiambaa/Kihara/T. 394, had been erroneously referred to as Kiambaa/Kihara/394, omitting the critical designation "T." from the title number. 21.The Deponent further deposes that while the Succession Court corrected this descriptive error and acknowledged the Respondent as the registered proprietor of the suit land, such an acknowledgment does not equate to a final determination on the merits of ownership. She maintains that the registration of the suit property in the name of the Respondent is the very foundation of the present suit and is the specific act being impugned and questioned by the Applicants. The Deponent contends that the Respondent is misconstruing the nature of the Succession Court’s findings to mislead this Honourable Court on the status of the land. 22.The Applicant concludes by averring that the Succession Court was clearly not seized of the issue of beneficial ownership or the existence of a trust, nor does a Court sitting in its succession jurisdiction have the requisite jurisdiction to determine substantive disputes of land ownership. She deposes that this Honourable Court is the proper forum clothed with the jurisdiction to determine the proprietary interests and the trust claims raised in the Originating Summons. The Deponent, therefore, maintains that the ruling in the succession matter does not act as a bar to the determination of the current suit on its merits. Plaintiff’s Case 23.At the trial hereof, the 1st plaintiff, PW1- Eunice Wanjiku Ikere testified and called two other witnesses on behalf of the plaintiffs. She adopted the contents of her supporting affidavit at page 5 and she also produced documents annexed as her exhibits. She also adopted her witness statement produced at page 18 of her trial bundle as her evidence-in-chief. 24.She on cross-examination she testified that her mother paid the loan for the Respondent which he had taken in 1986. That as per the letter produced at page 22 the lawyers, Hamilton Harrison & Matthews (herein after HHM) allowed Miriam to repay the loan. She however stated that she had no letter from Bank of Baroda since the bank handed her mother to the lawyers to deal with her. 25.She confirmed that she had filed at page 34 a letter from her bother showing he was in distress but she testified that she no letter from Auctioneer or the bank showing distress. And that neither did she had a letter showing misconduct at the bank of his brother nor discharge fro the duties at the bank. 26.She produced a receipt and testified that her mother paid Kesh 20,000 as shown at page 26 of the Defendant’s bundle. It is her testimony that her mother sold land to pay off the loan and that she produced receipts at pages 74 to 77 to support the claim. The said parcel was sold in 1989 and the agreement produced ate page 25 of the Originating Summons shown the amount of the sale as Kesh 150,000 and she paid back Kesh 135,000 after she was paid. It was her testimony that she is holding the receipts because the loan was paid by her mother and that if her brother had paid the loan he would have produced the original receipts. 27.She testified that both her elder brother, who is the Respondent and her 2nd brother who is the plaintiff’s 2nd witness live on the suit property. According to her, HHM was the Bank of Baroda’s lawyers and no one had raised an objection about that fact. She told the Court that the letter at page 45 in her bundle speaks of payment and this amount in the letter corresponds with the receipt produced at page 26. 28.Further that letter at page 48 from HHM confirms that they handled the matter of repayment of loan and the receipts produced to support this averment are in the Respondent’s bundle. She testified that her brother told her mother that he had a loan with the bank and that if the property was auctioned then the whole family would suffer and so she wrote the letter at page 34 which is similar to the one produced at page 45. 29.PW2- Robert Munga Mbugua testified that he lives on the suit property which is in Gachie and that he had lived on the suit property for 39 years. That he lives on the said property with Caroline, his family and the Respondent. He adopted his witness statement as his statement in chief. In cross-examination he told the Court that Mr Gacheru sold the land to his mother. 30.PW3- Johnson Njoge Kinunu adopted his witness statement dated 11/03/2022 at page 11 of the plaintiff’s bundle. He stated that he knows the Applicant’s family because their mother was his elder sister. According to his testimony, the Respondent was unable to pay a loan so his sister who is the mother of the Respondent sold her parcel of land in order to repay the loan. He told the Court that he was not aware if they singed any document because this was a mother and son arrangement and that he does not even know when the repayments were even made. That in fact Gacheru (Respondent told him about the loan. 31.With that the plaintiff closed his case. Respondent’s Case 32.DW1- Peter Gacheru Mbugua produced his witness statement which is at page 52 of his bundle as his evidence in chief and a list of documents bearing 20 documents as exhibits, DW1Exhibit 1-20. He testified that he never asked his sister to help him pay the loan nor his mother to pay the loan for him. 33.It was his testimony that he lives on the parcel of land which is the suit property with his brother Robert Mbugua (PW2) and his son, his sister Caroline also lives o the suit property and his sister and brother have been living on the suit property since 1988. That a month ago from the date of the suit his brother, his sister and his brother’s son connected electricity to the house they are living in and so he reported them. 34.He testified that he does not know that HHM are layers of the bank since they never handled his matter when he worked at the bank and even when he left the bank. That the letter at page 9 dated 09/10/1989 and it states that she will pay Kesh 20,000 but although the receipt produced at page 26 show an amount of Kesh 20,000 it is him who paid the money and not his mother. 35.He testified that after paying the loan the discharge is in the name of the person who took the loan and that he left employment towards the end of 1988 and that by that time he had finished paying the loan. 36.On re-examination he told the Court that there is no agreement for repayment of the loan between himself, his mother and the bank. 37.DW2- James Kiminta Kirtela testified that he works with Baroda Bank in the Human Resources Department. That he knows the Respondent who is an ex-staff of the bank and that he took a loan before exist from the bank for Account No. 8124206. That from the paying slip the loan was repaid by Mr Peter Gacheru which is shown on the slip at page 61 and 62 and after the whole loan was paid, the bank discharged title as shown at page 70 and these are the documents that he produced. 38.On cross-examination it is the testimony of DW2 that he is not a finance person and not an accountant either by a HR officer but that in matters of loans it is the HR department that recommends staff loan although he had not produced the recommendation of the Respondent and neither was he the right to produce financial receipts. 39.He testified that the letter at page 45 in the plaintiff’s bundle is written by Miriam Mbugua the mother of both the plaintiff and the defendant. He confirmed that HHM were the bank’s lawyers and when the letter was being written it was on behalf of the bank. That the commitment in the letter relates to the receipt at page 60 of the Respondent’s bundle. 40.According to DW2, at page 46 of the bundle the bank makes reference to the letter of 10/01/1989 at page 45. Also at page 47 there is a linkage with Peter Gacheru and the letter referenced as 818890/622. Further at page 12 of the plaintiff’s bundle there is a receipt by Peter Gacheru Mbugua and it shows it was paid by Mrs Wanini and so based on the documents it was his testimony that he confirmed that there is money that Miriam paid. On re-examination, he told the Court that at page 12 though there is a filed payment slip, it does not show at the bottom who paid since a proper payment slip should show account number and name account holder and the payment name at the bottom. 41.He testified not being aware that the whole family lives on the suit property. He concluded by stating that the bank only discharges to the account holder and not to the person who paid. 42.According to DW2, there is no certification from the Bank of Baroda but there is a stamp. That if someone is taking over a loan to pay on behalf of staff there is a document to be signed after it is converted into a commercial loan. Further, that going by the documents the lonad was paid by Mr. Peter Gacheru. That although the land was discharged but it does not indicate who it was discharged to 43.With that the defence closed their case. 44.Parties filed written submissions dated 20/02/2026 and the Respondent filed submissions dated 9/03/2026. Which I have considered and summarized herein. Submissions 45.The Applicants’ submissions center on the poignant reality that while the Respondent holds legal title to L.R. Kiambaa/Kihara/T.394, he does so merely as a trustee for the family of the late Miriam Edwin Mbugua. The applicants submit that the equitable claim they are making is anchored in the mother’s sacrificial intervention in 1989; when the Respondent’s employment at the Bank of Baroda was terminated and his housing loan faced imminent default, the matriarch sold family land (Kabete/Karura/446) to personally redeem the suit property. 46.The Applicants invite the Court to look beyond the veil of registration, arguing that the mother’s repayment supported by the bank’s advocate's acceptance letter from M/s Hamilton Harrison & Mathews and receipts issued in her name created a resulting trust. They emphasize that the Respondent cannot approbate and reprobate by enjoying the benefit of a debt-free property while simultaneously denying the very source of its redemption. 47.The Applicants further underscore that their continuous, open, and unchallenged occupation of the land for over 33 years serves as a powerful manifestation of their beneficial interest. That since 1986, the applicants state that the siblings have established permanent households and developed the land as an ancestral home with the Respondent's tacit acquiescence. Citing the landmark decisions in Kanyi v Muthiora [1984] KLR 712 and Isack M’Inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR, the Applicants submit that under Section 28(b) of the Land Registration Act, trusts are overriding interests that bind a registered proprietor. They argue that long-standing possession, coupled with financial contribution to the property’s preservation, creates an equitable shield that prevents a legal owner from unjustly enriching himself at the expense of his kin. 48.According to the applicants, they state in their submissions the suit land is not portrayed as a mere commercial asset, but as a family heritage preserved through maternal effort for the collective survival of the siblings. The Applicants contend that the Respondent’s recent attempt to assert absolute ownership is a breach of fiduciary duty and an affront to the customary understanding of family land. By relying on the unclouded chain of correspondence between their late mother and the bank's advocates, they assert that a constructive trust was intended to ensure no family member would be rendered homeless. Consequently, they pray that the Court declares the existence of this trust, ensuring that the legal title reflects the true equitable and moral reality of the family’s shared interest in the suit property. 49.On his part the Respondent The Respondent’s submissions rest on the foundational principle of indefeasibility of title, asserting that Peter Gacheru Mbugua is the absolute registered owner of L.R. Kiambaa/Kihara/T. 394, having purchased it for valuable consideration in 1986. The Respondent vehemently denies the existence of any trust, characterizing the Applicants’ claim as a "desperate attempt" to dispossess him of his family home. Central to his defense is the testimony of Mr. James Kiminta, the Bank’s Regional Human Resources Manager, who confirmed that the staff housing loan (A/C No. 8124206) was fully liquidated by the Respondent himself. The Respondent argues that the Applicants have failed to discharge the burden of proof, relying on unauthenticated and tampered pay-in-slips where the bottom portions were excised to conceal the true payee's identity. To underscore the finality of his ownership, he produces the certified letter from the Bank of Baroda dated 17th March 1997 and the formal Discharge of Charge registered on 24th November 2000 (marked page 70 of the Respondent’s bundle). 50.Furthermore, the Respondent started by submitting and clarifying that the Applicants’ presence on the land was never an acknowledgment of their beneficial ownership, but rather an act of brotherly charity that has since soured. He points out that the siblings have lived in a state of constant legal and domestic friction, evidenced by his denial of their access to water and electricity and their failed attempts to obtain Court orders for the same. He deposes that the Applicants reside in a dilapidated and condemned detached kitchen as confirmed by statutory notices from the Kiambaa Sub-County Public Health Office (annexed at pages 64 & 65) which is entirely inconsistent with the behavior of beneficial owners. 51.Legally, the Respondent in his submissions distinguishes the Applicants' cited authorities, arguing that Isack M’Inanga Kiebia v Isaaya Theuri M’lintari [2018] eKLR and Maina v Maina [2009] eKLR do not apply here; unlike those cases, which involved ancestral land demarcated to a family patriarch, the suit land was a private purchase. Consequently, the Respondent submits that in the absence of a signed tripartite loan transfer agreement, the Applicants’ case must fail, and he prays for the suit to be dismissed in its entirety with costs. Analysis and Determination 52.The dispute herein involves a contest between the indefeasibility of title under the Land Registration Act and the equitable doctrine of trusts. The Applicants seek to impugn the Respondent’s absolute ownership by asserting that the suit property, L.R. Kiambaa/Kihara/T.394, is held in trust for the family following a rescue operation by their late mother to redeem the land from a bank charge. 53.The key issues for determination given the matter at hand I find to be as follows:i.Whether the suit property is held by the Respondent in trust for the Applicants and the wider family.ii.Whether the Applicants have established a resulting or constructive trust through financial contribution and long-term occupation.iii.Whether the Respondent’s registration as the absolute proprietor is indefeasible under the law.iv.Whether the Applicants are entitled to the reliefs sought, including permanent injunction and rectification of the register.v.Who shall bear the costs of the application 54.The Applicants’ case is built on the premise that their late mother, Miriam Edwin Mbugua, intervened in 1989 when the Respondent faced a loan default with the Bank of Baroda. They argue that by selling a separate family asset (Kabete/Karura/446) to pay the Respondent's debt, a resulting trust was created. 55.The Respondent counters this by relying on the Bank’s records. His witness, DW2 (James Kiminta), an HR Manager from the Bank, testified that the loan was a staff benefit and was discharged to the Respondent. However, under cross-examination, DW2 made a critical admission: he acknowledged a receipt where the payer was identified as "Mrs. Wanini" (the mother) and confirmed correspondence from the Bank's lawyers (Hamilton Harrison & Mathews) accepting her repayment proposal. 56.The Court held in Kanyi v Muthiora [1984] KLR 712, the Court observed:“The registration of the land in the name of the appellant did not extinguish the rights of the Respondent under the trust... the Respondent was entitled to the portion of the land which she had occupied and cultivated for many years." 57.Justice O.A. Angote in the case of Gikonyo v Mwangi (Environment and Land Appeal E001 of 2023) [2024] KEELC 747 (KLR) (20 February 2025) held similar sentiments. The case concerned a dispute where the Court found that the registration of land under the Registered Land Act did not extinguish the customary trust rights of a family member who had occupied and cultivated the land for many years. 58.The Applicants have proved that they have occupied the land for over 33 years, built homes, and farmed it without a license from the Respondent. This acquiescence by the Respondent for three decades strongly supports the existence of a family trust rather than a mere act of charity. 59.The Respondent relies on his clean title and the discharge of charge registered in 2000. He argues that since he bought the land from a third party, it is not ancestral land and thus trust cannot apply. 60.However, the Supreme Court of Kenya in Isack M’Inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR clarified that registration does not shield a proprietor from trusts. The Court stated:“Section 28 of the Land Registration Act... recognizes that a registered proprietor’s rights are subject to overriding interests. A trust, including a customary or constructive trust, is an overriding interest even if it is not noted on the register." 61.The fact that the Respondent was the registered owner at the time of the rescue by the mother is exactly what creates the constructive trust. If the mother paid the debt to prevent the family from being homeless, equity presumes she did not intend it as a gift to the Respondent alone, but as a preservation of a family asset. 62.The Respondent attempted to dismiss the Applicants' documents as forgeries. However, the testimony of the Bank’s own witness (DW2) linked the Respondent’s loan account to the mother’s payments. The Respondent’s claim that he paid the loan in full by 1988 contradicts the fact that the Discharge of Charge only occurred in 2000 and that correspondence regarding arrears existed in 1989. 63.In Maina & 3 others (Suing as Legal Representatives of Joseph Maina Kimani) [2024], where the Court found that a defendant held land in trust for the plaintiff the person in occupation. It was the Court’s position that registration does not extinguish the rights of a person in possession. The Court noted that:“The law is now well settled that the rights of a person in possession or occupation of land are not extinguished by the registration of that land in the name of another person... the registered owner holds the land in trust for the person in occupation." 64.Although costs of an action or proceeding are at the discretion of the Court, the general rule is that costs shall follow the event in accordance with the proviso to section 27 of the Civil Procedure Act (cap 21). A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. See Hussein Janmohamed & Sons v Twentsche Overseas Trading Co Ltd [1967] EA 287. It is evident from the material on record that all the parties in this suit are family members. The Court is thus of the opinion that each party should bear his own costs of the suit. Final Disposition 65.The upshot of the foregoing is that the Court finds and holds that the 1st and 2nd plaintiffs have proved their claim of trust to the required standard. Accordingly, the Court makes the following orders for disposal of the originating summons dated 28/05/2021 and amended on 11/03/2022:a.A declaration be and is hereby made that Robert Gacheru Mbugua is registered as proprietor of title No LR Kiambaa/Kihara/T.394 on his own behalf and in trust for the Applicants’ and other siblings in equal shares.a.That since the said trust is hereby determined the register must be rectified to reflect the family’s interest.b.The Respondent is permanently restrained from alienating or selling the suit property to the detriment of the Applicants.c.Given the relationship that exists this being family members, every party to bear their own costs of the application. 66.Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 15TH DAY OF JUNE, 2026.……………………………MOGENI JJUDGERuling read in virtual Court in the presence of:1st and 2nd Applicants – AbsentMrs. Njiiru for the RespondentMs Lilian - Court Assistant……………………………MOGENI JJUDGE