https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3628

Tumbo v Kiuri (Environment and Land Appeal E031 of 2025) [2026] KEELC 3628 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEELC 3628 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Appeal E031 of 2025 EK Makori, J June 11, 2026 Between James Kiuri Tumbo Appellant and Gerald Kimani Kiuri Respondent (This is an appeal from the judgment delivered by Hon. Eddah Agade (PM) in Mukurwe-ini MCELC No. E016 of 2024, dated 16th September 2025 – James Kiuri Tumbo v. Gerald Kimani Kiuri.) Judgment 1.The appellant herein, dissatisfied with the judgment, decree, and orders of the trial court in the Mukurwe-ini Magistrate’s Court, MCELC NO. E016 of 2024, delivered by Hon. Eddah Agade (PM), appealed to this court. The appellant’s Memorandum of Appeal, dated 18th October 2025, sets out the following grounds of appeal.a.The learned Magistrate of the trial court erred in fact and in law by failing to consider the principles that govern customary trust, or by misconceiving them, and therefore misdirected herself in reaching the wrong conclusion.b.The learned Magistrate of the trial court erred in fact and in law by failing to consider the totality of the facts surrounding the appellant's occupation of the land parcel and the evidence tendered by the parties, thereby leading her to a wrong judgment.c.The learned trial magistrate erred in law by ordering the eviction of the appellant, whose claim was statute-barred by the law of limitations.d.The learned trial magistrate erred in law by failing to comprehensively analyze the evidence presented by the parties, thereby reaching the wrong conclusion. 2.The appellant prays:a.The appeal be allowed, and this Honorable Court set aside the trial court's judgment regarding its finding that there was no customary trust protecting the appellant's occupation, and substitute the aforesaid determination with appropriate orders.b.This Honorable Court sets aside the trial court's orders directing the appellant to vacate the land parcel LR Githi/Igana/179c.Costs of this appeal. Summary of evidence before the Trial Court. 3.The suit before the trial court was instituted by Plaint dated 11th November 2024 and amended on 14th February 2025. In the Plaint, the Plaintiff, who is the Appellant herein, averred that he and the defendant are first cousins, sons of paternal brothers, the late Elizaban Tumbu Kaguiri and Stephen Kiuri Kaguiri, respectively, with the former predeceasing the latter. 4.The defendant became registered as the proprietor of the land on the 6th of March 1996, after being gifted the land by his mother, and the plaintiff avers that this registration was subject to the customary trust already created. At the time of demarcation, consolidation, and registration, owing to the absence of Elizaphan Tumbu Kaguiri, Stephen Kiuri Kaguiri oversaw the registration of all that property known as Githi/ Igana/179 in the name of Njue W/O Kiuri, also known as Ruth Wairimu Kiuri, the latter's wife. The plaintiff avers that at all material times relevant to the suit, the aforesaid registration was for the benefit and in favor of the beneficiaries. 5.The Plaintiff asserts that since childhood, his paternal uncle, Stephen Kiuri Kaguiri, has placed the entire family in possession of the suit land. They have had and continue to maintain peaceful, open, continuous, and uninterrupted use, occupation, and possession of the suit land, with the defendant's full knowledge and acquiescence. They have continuously cultivated, resided on, and used the suit land, undertaking both specific and general improvements to the property. 6.Thus, the plaintiff avers that although the defendant is the registered owner of the suit land, the defendant holds it subject to the plaintiff's and his family's overriding interest. 7.Further, in addition to the claim of trust, he has acquired full prescriptive/adverse rights over the said land parcel Githi/Igana/179. He should be registered as the absolute proprietor thereof. 8.The Plaintiff sought the following orders:a.A declaration that the defendant holds the entire parcel of Githi/ Igana/179 as a trustee for the benefit of the plaintiff and his family.b.Determination of the trust stated above and rectification of the register.c.In any event and in the alternative, a declaration that the plaintiff has acquired the entire parcel of land known as Githi/Igana/179 by adverse possession.d.An order for cancellation of the defendant's name and registration of the plaintiff as the absolute owner of the land parcel Githi/Igana/179e.Cost of the suit. 9.The Defendant filed a statement of defense and counter-claim dated January 27, 2025, in which he denied the averments in the Plaint, stating that the other brothers did not inherit any land from anyone, but that Stephen Kiuri Kaguiri bought all the parcels of land. 10.The defendant asserted that during the land consolidation and demarcation process, his father allocated one of his lands for the plaintiff's family and facilitated its registration, specifically LR. Githi/Igana/174, in the name of the plaintiff's mother, Wangui Tumbo. He further stated that the plaintiff's mother had relocated to Ndia, Kirinyaga County. Upon her return, she chose not to build her own residence on her land but instead resided with the widow of the late Stephen Kiuri on LR. 179. Accordingly, his position is that his father provided for his brother's family by transferring LR. Githi/Igana/174 to them, and they should be satisfied with this arrangement. 11.The defendant denied the allegations that the suit land is held in trust with an overriding interest and averred that his mother transferred the suit land to him in 1996. No one objected because everyone in both families knew his mother had acquired the land from the proceeds of a goat that his father had gifted her upon her marriage. 12.The defendant denies the averments in paragraph 7 of the plaint and states that the plaintiff and his family knew all along where their land was, but refused to move there for no apparent reason, and that the plaintiff and his family have all along acknowledged that they have their own land, LR 174. 13.In his counter-claim, he averred that by a written agreement dated 16th May 1996, the defendant and his family acknowledged that they had their own land, that they were occupying the suit land with the plaintiff's consent, and that they were willing to exchange their land for a similar acreage to be excised from the suit land. Thus, he prayed for an order that the defendant and his family honor their agreement with the plaintiff dated 16th May 1996, and, in default, that the defendant and his family be evicted from LR. Githi/Igana/179. The hearing 14.Hearing began on July 22, 2025, when the Plaintiff, PW 1, gave his testimony and stated that he has lived on the suit property since its consolidation. He further stated that Stephen Kiuri, his uncle, placed him on the land, together with his mother, Wangui wa Tumbo, who is also deceased and buried on the property, and Johnson Mwangi Kagweri, his brother, who has also built there. 15.That the Defendant came to take the land by force, claiming it was his, which he had acquired less than five years ago, but he had not yet taken possession of it. 16.The Plaintiff stated that he was unaware that the suit property was registered in the name of Jael wa Kiuri, also known as Ruth Wanjiru Kiuri, the wife of Stephen Kiuri, who is registered as a Trustee for Kiuri Tumbo. She transferred the land to the defendant when they moved the Tribunal, and was given 3.3 acres of the property. 17.He denied knowledge of the ownership of LR Githi/Igana/no. 174. He stated that on May 16, 1996, he and the defendant did not agree, and added that the agreement was void because they lacked capacity and could not transact over land they did not own, noting that the agreement pertained to her brothers' burial. 18.On cross-examination, the Plaintiff denied knowing when the property was demarcated, but stated that it was his uncle Stephen Kiuri who participated in consolidating the suit property. 19.He states that his brother, Johnson Mwangi, filed the case at the Land Disputes Tribunal, suing the Defendant's mother over LR No. 164. The arbitrators awarded 3.3 acres, the total acreage of the land. He denied that the Tribunal ruled that land No. 179, registered in the Defendant's name, remains in his name as a gift from his mother, and disowned that document. 20.Notably, the Plaintiff informed the Court that he never attended school. 21.Upon re-examination, the Plaintiff clarified that, because he had been asked about Land Nos. 174 and 179: the land he was claiming was No. 174, which is 3.3 acres. The other land, No. 179, is reportedly one acre. He was not sure of the exact land number of the land he lives on, but stated that it is 3.3 acres. That was when his mother came from Ndia; she was given this land. 22.DW 1, the Defendant, also provided his testimony to the Court and relied on his statement as his evidence; additionally, he submitted his documents listed on January 27, 2025. 23.DW 1 stated that the suit land was initially registered in his mother's name, Jael Kiuri, after she purchased it. The land had nothing to do with his father and was a gift following his mother’s marriage. Under Kikuyu customary law, her father was obligated to give her a gift. He gave her a goat because he could not afford to give her land. During the land consolidation, his mother sold the goats that had multiplied and bought land No. 179. 24.The Defendant states that his mother later gifted the land to him in 1996, and no one objected to the gift. They attended the Lands Control Board and registered the gift at the Lands Office. 25.Regarding how the Plaintiff’s mother came to be on the suit land, Wangui Tumbo migrated to Kirinyaga after her husband passed away. After independence in the 1960s, she came from Ndia to Mukurweini, but since she did not have land, she was hosted on her mother’s land. 26.The Defendant added that at the time of land demarcation, his father, who was the guardian, purchased land and allocated one acre to the Plaintiff’s mother, which remains unoccupied to this day, that is, LR 174. 27.He also noted that the Plaintiff’s brother sued his mother at the Tribunal to challenge her ownership of LR No. 179, and the Tribunal ruled that LR No. 179 belonged to him and awarded him the land. 28.When the Plaintiff’s brother died in 1996, the Defendant objected to his burial on the suit land. They agreed that he would be buried there on the condition that he surrender one acre from LR No. 179 in exchange for one acre of land at LR No. 174. The agreement, dated May 16, 1996, was between him and the Plaintiff’s family, including the Plaintiff. 29.The Defendant stated that he was ready today to cede one acre under LR No. 179 in exchange for LR No. 174, which is also one acre. He further stated that if the Plaintiff and his family do not give him LR No. 174, they should vacate his land and settle on the land under LR No. 174. 30.On cross-examination, he stated that he drafted the May 16, 1996 agreement during a meeting at which he was appointed to do so; that he had refused to allow the Plaintiff's brother to be buried on his land; and that he had been registered as the proprietor of the land in March of the same year. He acknowledged that the Plaintiff’s mother is buried on his land and that there are annual and perennial crops on the land. He also stated that he expects them to honor their agreement and vacate his land. 31.The Trial Court made its determination on September 16, 2025, finding that although the Plaintiff and his family have had possession of part of LR 179 since 1963, the evidence adduced did not establish a trust in favor of the Plaintiff over the suit parcel. The Trial Court also found that it could not sanction the Agreement because, from the evidence on record, the portion of LR 174 that the parties wish to exchange is still registered in the name of the Plaintiff’s deceased mother. Such an agreement would amount to intermeddling as provided by sections 45 and 82(b)(ii) of the Law of Succession Act. It is this decision that the Plaintiff sought to appeal. The Appellant’s written submissions 32.Counsel for the Appellant submitted that the facts do not appear to be controverted; the parties are members of one family, being paternal cousins. That the appellant’s father predeceased the respondent’s father, and it was the respondent’s father who took care of the appellant’s family; that the appellant had been in occupation of the suit land to the exclusion of the respondent and/or his family; that the respondent’s father had registered parcel Githi/Igana/174 in the appellant’s mother’s name; that there had been proceedings in the District Tribunal concerning the suit land, and that the respondent had only become registered as proprietor in 1996, after his mother changed her name, when the land was gifted to him. 33.It is their submission that two issues arose from this finding of the Trial Court; first, that the evidence did not bear it out, and second, that the finding never matured into a judgment of the court and remained a matter of contestable facts, namely, that the suit land was a gift to the Defendant rather than held in trust by his mother for the benefit of the entire family. 34.The Appellant urged the Court to take judicial notice of history, namely that all the lands subject to adjudication, demarcation, and consolidation were family or clan lands. 35.The Appellant argues that, having found that the Appellant and his family had been in open, continuous, and uninterrupted occupation of the suit land for decades, the trial court could not simultaneously order eviction. Such an order was inconsistent with sections 7, 13, and 17 of the Limitation of Actions Act and with the authority in Mtana Lewa v Kahindi Ngala Mwagandi. 36.That the order was discriminatory, being made against the appellant rather than against his family who dwell on the suit land together, and that the appellant prays that this court be pleased to find that the nature of the holding of the land and the intention of the parties were such that the holding was for the benefit of other members of the Appellant’s family and that a customary trust should have been presumed to have been created in their favor. Analysis and Determination 37.The function of a first appellate court was concisely articulated in the case of Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR and was summarized as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 38.The land in dispute in this appeal is L.R Githi/ Igana/179, which the Appellant asserts was to be held in trust for the family members and is currently registered in the Respondent’s name. Conversely, the Respondent contends that the property was gifted to him by his mother, who acquired it using the proceeds from selling goats that increased from the initial goat gifted to her by her father upon her marriage. 39.The suit land was the subject of the Mukurewini Land Dispute Tribunal Case 15 of 1996, in which the Appellant and his brother initiated legal proceedings against the Respondent herein. The proceedings culminated in a decision that the suit land, Githi/Igana/179, would be registered in the Respondent's name, as it was a gift from his mother. No customary trust was registerable. 40.In the case of Cosmas Cherono & two others v. Veronica Cherono [2021] eKLR, the court cited the following passage with approval.“In Juletabi African Adventure Limited & Another v Christopher Michael Lockley [2017] eKLR, the Court also held that …. It is settled that the onus lies on a 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 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.”That, in the instant case, the import of the foregoing precedents is that it is upon the plaintiffs to lead evidence proving that indeed a constructive trust existed. It was incumbent on the plaintiffs to demonstrate that the suit property was ancestral land and that it was vested in Joseph Rutto Cherono to hold for the family. Importantly, the court is not obligated to imply the existence of a trust outside the express and clear intention of the parties.” 41.In my view, customary trust was not established in this case, as the Land Consolidation case, which was mandated to demarcate ancestral clan land and issue titles, did not find so, and the Court lacks the benefit of hearing from all interested parties to make a definitive determination. 42.The other claim presented by the Appellant is that he has acquired ownership of the land through adverse possession. However, it is observed that this possession was reportedly granted by the Defendant’s family when the Appellant’s mother commenced cohabitation with the Respondent’s mother. The court, in the case of Haro Yonda Juaje v Sadaka Dzengo Mbauro & Kenya Commercial Bank (2014) eKLR, reasoned that:“Secondly, the occupation of the land by the claimant must be non-permissive. If one is in possession as a result of permission given to him by the owner, or if he is in possession as a licensee, he cannot claim to be in adverse possession. It has been held that any time an adverse possessor and the true owner discuss the issue of adverse possession, permissive agreement may have occurred, and that act destroys the claim for adverse possession.” 43.Furthermore, the Appellant asserts that the Defendant possesses the land as ancestral land held in trust for the entire family, given that they are related as cousins. The Trial Court determined, in the Haro Yonda Juaje (Supra) case cited above, that“Can one claim to have acquired land by adverse possession if he claims that the land he is occupying is his ancestral land and that he only learnt of the true owner a few years ago (less than 12 years)" I do not think so. I say so because, as was held in the Wambugu case (supra), the mere fact that one has been in possession of land for more than 12 years is not enough. In fact, the assertion by a claimant that he was not aware that the land was registered in favour of some person against whom time could start running means that he did not have the animus possidendi to acquire the land by way of adverse possession, and he can therefore not be able to succeed to defeat the title of the true owner. 44.Therefore, the instant appeal lacks merit and is hereby dismissed with costs. DATED, SIGNED, AND ELECTRONICALLY DELIVERED IN NYERI ON THE 11TH DAY OF JUNE, 2026.E. K. MAKORIJUDGEIn the presence of:Mr. Nderi for the AppellantMs. Maina H/B for Mr.Wachira for the RespondentDenis: Court Assistant