https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3423

Kingangi v Mutembei (Deceased) & 5 others (Land Case Appeal E025 of 2025) [2026] KEELC 3423 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEELC 3423 (KLR) Republic of Kenya In the Environment and Land Court at Embu Land Case Appeal E025 of 2025 EC Cherono, J May 28, 2026 Between Johnson Njeru Kingangi Appellant and Jacob Njue J Mutembei (Deceased) 1st Respondent Mbogo Njuki 2nd Respondent Charles Njeru Kiura 3rd Respondent Mwathi Nthiga 4th Respondent David Mwaniki Nguku 5th Respondent Samuel Ita Nderembu 6th Respondent (Being an appeal from the Judgement of Hon. Njoki Kahara (SRM) delivered on 19/03/2025 in Siakago MCELC Case No. 145 of 2018 Johnson Njeru King’ang’i v Jacob Njue J. Mutembei (deceased) & 5 others)) Judgment 1.The Appellant herein was the substituted Plaintiff before the trial court following the demise of his father, King’ang’i Chambira, who was the original Plaintiff, and who died in the course of proceedings. The Appellant had sued the Respondents vide an Amended Plaint dated 28/05/2024 seeking interalia, a declaration that the estate of the late King’ang’i Chambira is entitled to parcels of land Nos Mbeere/Kirima/3688, 3694, 3695, 3696 and 3697; an order for rectification of the register directing the Land Registrar to cancel the registration of the said parcels of land in favour of the 1st, 2nd, 3rd, 4th and 5th Respondents respectively and registration of the said parcels in the name of the Appellant on behalf of the estate of the late King’ang’i Chambira and that the Appellant be issued with title deeds to the said parcels of land. 2.The Appellants case was that him and his late father King’ang’i Chambira and the 1st, 2nd, 3rd and 5th Respondents are members of the Marigu clan. He averred that the suit lands were the resultant subdivisions of original land parcel Mbeere/Kirima/3394 measuring approximately 467 ¾ acres which was part of the Marigu clan’s entitlement out of original land parcel Mbeere/Kirima/2244 which was awarded to the 1st Respondent on behalf of the clan vide Minister’s Appeal Case No. 170 of 1996 within Kirima Adjudication Section. He averred that in the month of October 1970, his late father in his capacity as a member of the Marigu clan occupied a portion measuring approximately 10 acres out of land parcel 3394 and extensively developed it and that his family continues to occupy and utilize the land. 3.He stated that the land was the subject of disputes and that upon determination of the disputes, the 1st Respondent was charged with the duty of distributing the said land to clan members. That the 1st Respondent however caused his late father’s parcel of land to be subdivided into 10 portions that is parcel Nos. 3689, 3690, 3691, 3692, 3693 which was registered in favor of three of his late father’s sons, 3688 registered in favour of the 1st Respondent, 3694 to the 2nd Respondent, 3695 to the 3rd Respondent, 3696 to the 4th Respondent who is not a member of the Marigu clan and 3697 was registered in favor of the 5th Respondent. He asserted that this in effect rendered his father landless whereas the Respondents were also given several other portions out of the original land parcel 3394 with the 1st Respondent awarding himself approximately 80 acres out of the original land. 4.The 1st to 5th Respondents filed a statement of defence dated 21/12/2015. They denied the Appellants allegations and averred that the 4th Respondent was a member of the Marigu clan. They further denied that the Appellants father lived on the suit land or that he developed the same. They averred that he refused to contribute any money towards the costs of the cases during the process of land adjudication and demarcation and therefore the 1st Respondent discharged his duty of distributing land to deserving members of the clan justly and fairly. 5.The Appellant filed a reply to the statement of defence and denied the Respondents allegations. 6.When the former suit came up for directions, the parties agreed to proceed with the hearing by way of viva voce evidence. 7.PW1, King’ang’i Chambira adopted his written statement dated 30/10/2015 as his evidence in chief. In his statement, he stated that during the hearing of the cases concerning the suit land, whenever called upon to do so, he fully contributed towards the expenses incurred and that his six sons also made their separate contributions. He averred that during the distribution of land to the clan members, the 1st Respondent did not involve all the beneficiaries including him. He stated that the 1st to 5th Respondents had no right to his land. 8.On cross examination, he stated that he was a member of the Marigu clan and that he was not given any land during land adjudication. He stated that he did not know why he was not given his portion of land and that he was not satisfied with the mode of distribution. He stated that he did not make any formal complaints and maintained that he occupies a 10 acre portion of land whose registration particulars were unknown to him. 9.He produced in evidence official searches for land parcels 3688, 3694, 3695, 3696 and 3697, proceedings and award in Minister’s Appeal Case No. 170 of 1996, minutes for Marigu clan meeting held on 19/03/2009 and an area list and beneficiaries of Marigu clan parcel No. 3394 as PExh 1-4. 10.PW2 Mathew Nyaga J. Kabuta adopted his written statement dated 06/12/2019 as his evidence in chief. He stated that he was the treasurer of the Marigu clan. He produced a book with the list of persons of Marigu clan who contributed money as PExh 5. 11.On cross examination, he stated that the book was for recording contributions of Marigu clan members. That he had no minutes to show he was appointed as treasurer. He stated that the decision for members of Marigu clan to contribute money was made a long time ago and that the chairman then was Mbuti Kiritu and not Jacob. He stated that he was collecting money and giving it to those people who were going to deal with the land case. He stated that King'ang'i had his land and he was also supposed to get land after the case. Those dealing with distribution of the land were the chairman, secretary and treasurer. He stated that none of the Respondents were members of the committee allocating land. He stated that the 1st Respondent Jacob was allocating land to members of Marigu clan but he was not the chairman and that he allocated land to many people and not just the five Respondents. He stated that he was also not given land by Marigu clan yet he was also contributing money and he had sued in a different case. 12.PW3 Erastus Machine adopted his statement dated 6/12/2019 as his evidence in chief. On cross examination, he stated that the Appellants father was his neighbor but he could not recall his parcel number. He stated that the deceased was not given land by Marigu clan and he did not know the reason why whereas he was a clan member. That the deceased has approximately 10 acres where he had planted trees, sugarcane and miraa. 13.PW4 Jackson Kariuki King'ang'i adopted his statement dated 6/12/2019 as his evidence in chief. On cross examination, he stated that all the Respondents are from Marigu clan apart from the 4th Respondent. He stated that he is the 7th son of the deceased and that he was born in 1970. He stated that his father did not get land because the 1st Respondent allocated land to his family members and not clan members. That there were other people who also did not get land. He stated that he was allocated one acre and that his father was not given land yet they were contributing money uniformly. His two other brothers also got land. He stated that his father was claiming 10 acres of land and that four of his brothers had been allocated land which was part of the 10 acres. The balance of the 10 acres is in the names of the Respondents. 14.DW1 Mwathi Nthiga the 4th Respondent adopted his statement dated 10/5/2017 as his evidence in chief. He produced in evidence a search for land parcel No. 3696, proceedings and judgment in Ministers Appeal case no. 170 of 1996, Marigu clan minutes for the meeting held on 19/3/2009 as DEX1 -3. 15.On cross examination, he stated that he is from Marigu clan and that he was allocated land by the Marigu clan committee whose chairman was Jacob Mutembei, the 1st Respondent. He stated that the deceased and his relatives farm on the land the 4th Respondent was allocated. He stated that he had never farmed on the said land nor was he living in any portion of Marigu clan land. He stated that he contributed money as asked by the clan which he gave to the 1st Respondent. 16.On re-examination he stated that the deceased was using his parcel of land before it was allocated to him and that after he died, the son continued to utilize the portion. 17.The trial Court in its judgement found that from the searches produced by the Appellant, it was clear that the 1st to 5th Respondents were the registered as the proprietors of the suit parcels of land. That under section 26 of the Land Registration Act, their registration could only be challenged on the ground of fraud, misrepresentation or where the land is acquired illegally, unprocedurally or through a corrupt scheme. The trial Court found that the five Respondents were the registered owners of the suit parcels of land. 18.The Court further found that the Appellant’s grievance was merely that the Marigu Clan had failed to allocate him land, which did not constitute a lawful basis for cancellation of title under Section 26 of the Act. According to the court, any complaint regarding exclusion from land allocation ought to have been directed against the Marigu Clan Committee and not the Respondents. The Court also noted that several other beneficiaries had been allocated land by the clan committee, yet the Appellants had selectively sued only the five Respondents. 19.The trial court concluded that the Appellant had failed to prove any fraud, misrepresentation, illegality or corruption in the manner the Respondents acquired the suit properties. The suit was dismissed with costs to the Respondents. 20.The Appellant was aggrieved by the impugned decision and preferred the present Appeal on the following grounds;1.That the learned trial Magistrate erred in law and fact in failing to consider that the Appellant's late father King'ang'i Chambira was already settled on the suit property long before the same was allocated to the Appellants.2.The learned trial Magistrate erred in law and fact in falling to consider that the Appellant's late father King'ang'i Chambira had sued the Respondents and not any other member of the Marigu clan since the Respondents had been allocated the suit property which the Appellant's late father was claiming.3.That the learned trial Magistrate erred in law and fact in failing to consider that the Appellant's late father had only discovered that the suit property had been allocated to the Respondents long after registration of the same in their favour and at that point the functions of the Marigu clan Committee distributing the land were functus officio.4.That the learned trial Magistrate misdirected herself and erred in law and fact in holding that the Appellant had not proved any fraud, misrepresentation, illegality or corruption yet then Appellant had not raised these grounds in his pleadings.5.That the learned trial Magistrate erred in law and fact in failing to consider that the Appellant had satisfied the elements of customary trust as set out under Section 28 (b) of the Land Registration Act.6.That the learned trial Magistrate erred in law and fact in failing to give the necessary weight to the Appellant's evidence. 21.The Appellants sought to have the appeal allowed, the judgement of the trial Court set aside and substituted with orders allowing the Appellants prayers in the Plaint with costs. 22.When the appeal came up for directions, the parties agreed to canvass the appeal by way of written submissions. The Appellant filed submissions dated 12/02/2026 through the firm of Rose W. Njeru & Company Advocates. They submitted that trial Court failed to give weight to the uncontroverted evidence that the deceased was in occupation of the suit land since 1970 long before adjudication and remained in continuous occupation thereby misdirecting itself on a critical element of customary trust as set out in the case of Isaak M’inanga Kiebia v Isaac Theuri M’lintari & Another (2018) Eklr. He averred that the trial Court finding that the Appellants grievance lay with the clan and allocation committee was erroneous in law as the Respondents are the registered proprietors of the suit lands and therefore the proper parties to be sued. 23.He submitted that his late father only discovered the allocation of the suit lands to the Respondents long after registration had occurred and that at that point, the clan committee had no power to reverse the process. He averred that the trial Court erred in faulting the Appellant for failing to pursue a remedy that was no longer legally available. He further submitted that the trial Court erred in finding that the Appellant had failed to prove fraud, misrepresentation or illegality which was a serious misdirection as none of the grounds were pleaded. He contended that the trial Court ought to have inferred a customary trust in this case as the Appellant pleaded and proved; clan ownership, long occupation, contribution to adjudication and expectation of allocation of land based on occupation. He urged that the appeal be allowed. He cited the cases of Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri (2014) Eklr and Mburugu K. Muringa v Municipal Cuncil of Mombasa (Mombasa CA No. 5 of 2014) among others. 24.The Respondents filed submissions dated 22/04/2026 through the firm of Duncan Muyodi & Company Advocates. They submitted that the trial Court did not err in their decision as they adduced sufficient evidence to prove that they were allocated land legally by the Marigu clan. They submitted that they proved that neither the Appellant nor his late father ever occupied, utilized or developed the suit lands and therefore the Appellant was not entitled to a share of the suit lands. They averred that the Appellant failed to adduce any evidence to prove his allegations of the existence of a customary trust and therefore the trial Court did not err in deciding in their favour. That in addition to that, he did not plead or set out the particulars of a customary trust in his pleadings and only brought it up in his submissions which is erroneous as parties are bound by their pleadings. They cited the case of Patricia Karani Ogando v Watu Credit Limited & Anor (Civil Suit No. E098 of 2022)(2024)KEHC 3074(KLR)(14 March 2024)(Judgement) among others to support that position. 25.They further submitted that the 6th Respondent was erroneously joined in the appeal despite not having been a party in the proceedings before the lower court. They also contended that the 1st Respondent having died on 16/11/2022 and no substitution having been effected within one year, the suit against him abated on 15/11/2023, and consequently there was no subsisting claim against him in respect of land parcel No. 3688. The Court notes that the 6th Respondent was joined in the appeal after the Appellant made an application for his joinder, which application was not opposed by the Respondents. The Appellant’s case was that he later discovered that, prior to his death, the 1st Respondent had already transferred land parcel No. 3688 to the 6thRespondent, a fact which only came to the Appellant’s knowledge later. 26.Having considered the record of appeal and the rival submissions, I find that the issue for determination is whether the appeal has merit. 27.From the record, the dispute arises from land originally known as Mbeere/Kirima/2244, which belonged to the seventeen clans of the Mbeere tribe. That land was the subject of Minister’s Appeal Case No. 170 of 1996, where it was returned to the clans, each to subdivide and allocate land to its members. The Marigu clan was allocated parcel 3394, which was later subdivided into parcels 3688 to 3697. The Appellant contends that this subdivision was irregular, as the parcels were allocated to the Respondents among others, excluding his late father, who he maintains was entitled to 10 acres of the land that his family has occupied and developed. 28.The 1st Respondent, who oversaw the subdivision, explained that the Appellant’s father was excluded because he did not contribute financially to the clan cases during adjudication, which was said to be a requirement for allocation. He produced a list of the beneficiaries of the said land whereas PW2 produced a book with the list of persons of Marigu clan who contributed money. 29.The trial court, in its judgment, found that the Appellant’s grievance lay with the clan committee, since the Respondents had already been registered as proprietors of the suit parcels. The court held that their titles, under Section 26 of the Land Registration Act, could only be impeached on grounds of fraud, misrepresentation, illegality, or procedural impropriety, none of which had been proved. I agree with the trial court’s finding on that point. 30.The Appellant also argued that this was a proper case for a customary trust to be inferred. However, the amended plaint did not plead customary trust, the claim was framed around the exclusion of the Appellants father from allocation of the suit land. However, even if the court were to consider the issue, the law as set out in Kiebia v M’lintari & another (Petition 10 of 2015) [2018] KESC 22 (KLR) requires a claimant to prove:i.The land in question was before registration, family, clan or group land.ii.The claimant belongs to such family, clan, or groupiii.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.iv.The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.v.The claim is directed against the registered proprietor who is a member of the family, clan or group. 31.In this case, although the Appellant claimed membership of the Marigu clan, he did not prove that he would have been entitled to registration but for some intervening circumstance. The evidence instead shows that his exclusion arose because he failed to meet the clan’s requirements, particularly the financial contributions demanded during adjudication.It is therefore clear that the Appellant’s grievance stems from the internal processes of the Marigu clan committee rather than from any illegality in the registration of the Respondents. 32.Consequently, the Court finds that the Appellant did not prove that he was entitled to the orders sought in the amended Plaint. 33.The judgement of the trial court is accordingly upheld and the appeal herein is hereby dismissed with costs to the Respondents. DATED, DELIVERED AND SIGNED AT EMBU THIS 28TH DAY OF MAY, 2026.HON.E.C CHERONOELC JUDG, EMBUIn the presence of;1. M/S Rose Njeru for the Appellant2. Mr. Okwaro for the Respondent3. M/S Ruth C/A