https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5157

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA** **ELC APPEAL NO. E020 OF 2024** **KINYUA NJOKA MACHERE .............................................APPELLANT** **=VERSUS=** 1. **PAULINE WANGU NJOKA** 2. **JANET MUCIKU THIAKA ....................................RESPONDENTS** ***(Being an Appeal arising from the judgement and decree of Hon. Cheruto C. Kipkorir, Principal Magistrate****, on* ***13th March 2024*** *in* ***Kerugoya PMC E & L Case No. E024 of 2023)*** **JUDGEMENT** 1. **INTRODUCTION** 2. This appeal challenges the Judgement rendered by **Hon Cheruto C. Kipkorir, Principal Magistrate**, delivered on **13th March 2024** in ***Kerugoya* Chief Magistrate Court E & L Case No. E024 of 2023.** The proceedings before the trial court arose from a dispute of ownership in respect to parcels ***Inoi/Kamondo/2202*** and ***Inoi/Kamondo/2540*** ***(Hereinafter referred to as suit parcels)*** which the appellant is said to hold in trust for himself and the respondents. All parties in these proceedings are siblings. The key questions that fell for determination before the trial court was whether or not, the appellant, did hold the suit parcels as customary trust land in trust for the respondents and whether, the appellant's counterclaim should be allowed. These are also the key questions that fall for determination in this appeal. 3. Before I analyse and dispose of the issue, I will outline, in brief, ***the background to the appeal; the grounds of appeal; and the parties’ respective submissions in the appeal.*** 4. **THE BACKGROUND** 5. Through a plaint dated **7th February 2023**, the respondents instituted **Kerugoya CMC E&L Case No. 24 of 2023** against the appellant, seeking for the following reliefs: 6. ***The appellant be ordered to transfer land parcel No. Inoi/Kamondo/2202 to the respondents*** 7. ***The court to authorize the Executive Officer to be signing all the necessary documents on behalf of the appellant to facilitate the transfer of land parcel No. Inoi/Kamondo/2202*** 8. ***The cost of the suit;*** 9. ***Any other relief the court may deem fit to grant.*** 10. The case of the respondents was that the appellant is the registered owner of parcel No. ***Inoi/Kamondo/2202*** and ***Inoi/Kamondo/2540.*** They contended that they are the children of ***Nancy Wamalwa*** Macere (deceased) and the appellant is their sibling. The respondents further contended that the appellant held the two parcels in trust for himself and them. They added that sometime around **20th June 2022,** the appellant agreed before the area chief to transfer parcel ***Inoi/Kamondo/2202*** to the respondents and he was to remain with parcel ***Inoi/Kamondo/2540,*** where he has developed. It is their case that the appellant failed to honour the agreement and refused to transfer the parcel to them without any reason. 11. The appellant filed ***a statement of defence and counterclaim dated 8th June 2023*** where he contested the respondents' claim. The appellant’s case was that he owns the suit parcelsabsolutely and is not registered in trust of any body. The appellant contended that he acquired the said parcels through transmission and that the area chief compelled him to transfer the land without his family's consent. The appellant added that the agreement pointed out in the plaint is invalid since it was not prepared by an authorized person and has no signature from the advocate’s firm. It was his case that ***Inoi/Kamondo/2202*** and ***2540*** were resultant numbers of ***Inoi/Kamondo/204*** and ***282,*** whose parcels were registered to different people but not in the name of ***Nancy Wamalwa Macere.*** 12. ***In the counterclaim,*** the appellant contended that land parcel number ***Inoi/Kamondo/2540*** was a resultant number of **Inoi/Kamondo/204,** which was originally registered in the names of **Njoka Machere**. The appellant further contended that he was given a share from the estate of the deceased after it was determined that he is a beneficiary to the said estate vide **Succession cause No. 87 of 2001.** The appellant added that ***land parcel No. Inoi/ Kamondo/2202*** was a resultant number from **Inoi/Kamondo/282** which was originally registered in the names of ***Kiragu Macere*** and that he was given a share from the estate of the deceased after it was determined, he was a beneficiary to the said estate vide ***Succession cause no. 227 of 1997.*** 13. The appellant added that if the respondents have any claim, they should have filed a revocation of the said grants, which they have not. The appellant stated that their mother did not have any land parcel to be inherited. The appellant further averred that the respondents illegally and unlawfully entered parcel **Inoi/Kamondo/2202** before the suit was heard and determined, and have lodged cautions on the suit parcels without any claim. 14. The appellant therefore sought for;- 15. ***That the respondent’s suit be dismissed;*** 16. ***An order of eviction against the respondents from parcels Inoi/Kamondo/2202*** 17. ***An order of permanent injunction to restrain the respondents, their agents or servants from entering, alienating and or interfering with the same for any reasons whatsoever;*** 18. ***An order to remove cautions lodged on land parcel numbers Inoi/Kamondo/2202 and 2540*** 19. ***Costs of the defence and counterclaim.*** 20. Upon receiving evidence and submissions, the trial court reached a finding that, ***the respondents had proved their claim.*** The trial court then went ahead and ***dismissed the appellant’s counterclaim with orders that each party do bear their own costs for both the suit and counterclaim.*** 21. **THE APPEAL** 22. Aggrieved by the findings and decree of the trial court, the appellant lodged this appeal, advancing the following **twelve (12) grounds of appeal;** * 1. ***The learned trial Magistrate erred in law and in fact in failing to make a finding that LR Inoi/Kamondo/2540 was a resultant number from land parcel no. Inoi/Kamondo/204 which belonged to Njoka Macere now deceased and was transmitted to the appellant through Kerugoya Succession cause number 87 of 2001,while Inoi/Kamondo/2202 was a resultant of land parcel no Inoi/Kamondo/282 which belonged to Kiragu Macere now deceased and was transmitted to the appellant through Kerugoya Succession cause number 227/1997 and neither of the parcels was to be hold in trust by anybody.*** 2. ***The Learned trial Magistrate erred in law and in fact in making a finding that the late Nancy Macere was entitled to the land that belonged to her brothers when she never at any time during her lifetime ever filed in any court for a determination of trust for the two parcels of land or lived under the care of his brothers.*** 3. ***The Learned trial Magistrate erred in law and in fact in making a finding that the respondents were discriminated based on their gender when at no point did they plead or adduce evidence to show that they or their late mother was disinherited based on their gender.*** 4. ***The Learned trial Magistrate erred in law and fact in making a finding that the appellant held the suit parcels of land in trust for the respondents despite never inheriting any land from his mother or father.*** 5. ***The Learned trial Magistrate erred in law and fact by misdirecting herself that it was the wish of the late Nancy Macere to have land parcels No. Inoi/Kamondo/2549 and 2202 shared among he children while no evidence supporting the same was tendered during trial hence arriving at a wrong conclusion.*** 6. ***The Learned trial Magistrate erred in law and in fact by failing to consider that the appellant got his parcels of land through two different estates at different times.*** 7. ***The Learned trial Magistrate erred in law and in fact by failing to consider that the respondents were adults during the trial of the Succession causes of their two deceased uncle’s and neither of them objected to the mode of distribution.*** 8. ***The Learned trial Magistrate erred in law and in fact by misdirecting herself that there was an establishment of customary against the evidence adduced in court.*** 9. ***The Learned trial Magistrate erred in law and in fact by assuming that the appellant participate in Succession causes on behalf of the respondents, hence arriving at a wrong conclusion.*** 10. ***The learned trial Magistrate erred in law and fact in making a finding that the suit parcels of land were ancestral land while the respondents never brought any witnesses from the clan or their uncles’ family members to corroborate the evidence.*** 11. ***The learned trial Magistrate erred in law and in fact by putting more weight on an agreement that was never agreed upon conclusively.*** 12. ***The Judgement of the court was against the weight of the pleadings, the evidence adduced in court and the need for substantive justice without undue regard to procedural technicalities.*** 23. The appellant urged this court to ***allow the appeal, set aside the impugned Judgement and allow the appellant’s counterclaim.*** 24. **THE APPELLANT’S SUBMISSIONS** 25. The appellant filed their set of submissions dated **5th February 2026** through the firm of **M/s Nyaga Gitari Advocates.** The appellant identified two issues for determination; *(****i)Whether or not, the appeal is merited*** ***(ii)What are the appropriate orders of costs.*** 1. ***On whether the appeal is merited***, counsel for the appellant submitted that the appellant has been in occupation of the suit land and the title deed was issued in 2000. Counsel further submitted that parcel no ***Inoi/Kamondo/2540*** was a subdivision of parcel ***Inoi/Kamondo/204***, which was registered in the names of ***Njoka Machere*** and subsequently they filed a succession cause to distribute the estate vide ***Kerugoya*** ***Succession cause No.87 of 2001.*** Counsel added that the appellant was registered as ***the sole owner of the suit parcels through transmission and that the respondents have never revoked the grant or raised a claim of fraud.*** 2. Counsel argued that the appellant has been in quiet and peaceful occupation of the suit land and the court should protect his rights. Counsel faulted the court for assuming that the appellant got the portion that was entitled to her mother, which was never proved. Counsel added that the trial court entertained the minutes which were in dispute and that the respondents never called their relatives to confirm their allegations. 3. Counsel further submitted that trust must be pleaded and proved and that the respondent pleadings and evidence did not prove trust. Counsel relied on the case of ***Peter Ndungu Njenga vs Sophia Watiri Ndungu (2000) eKLR, Twalib Hatayan Twalib Hatayan & Another vs Saggar Ahmed Al-Heidy & Others (2015) eKLR and Hearbeat Limited v Ng’ambwa Hearbeat Community Children’s Home & Rescue Center (2018) eKLR.*** 4. **THE RESPONDENTS’ SUBMISSION** 5. The respondents filed written submissions dated **4th May 2026** in person and identified **three issues for determination;** * + 1. ***Whether or not, the Learned Magistrate erred in her judgement*** 2. ***Whether or not, the judgement was against the weight of evidence*** 3. ***Whether or not, the appeal is merited.*** 6. The respondents submitted that the appellant is their only brother and holds the suit parcels in trust for himself and them. The respondent further submitted that the appellant agreed before the area chief to transfer the land to them, but he later reneged. They thus urged the court to uphold the trial court decision and dismiss the appeal with costs. 7. **ANALYSIS AND DETERMINATION** 8. I have carefully read and considered the original record of the trial court, the record of appeal, the grounds of appeal cited and parties’ respective submissions. In my respectful view, the following twin issues fall for determination: 9. ***Whether the respondents did prove that land parcels number Inoi/Kamondo/2202 and 2540 were ancestral/family land previously owned by their uncles and was subsequently held by the appellant in trust;*** 10. ***Whether the appellant proved their counterclaim.*** 11. I will dispose the two issues sequentially in the above order. However, before I do so, I will briefly outline the principle that guides this court when exercising jurisdiction as a first appellate court. 12. The task of a first appellate court was summarized by the Court of Appeal in the case of ***Susan Munyi v Keshar Shiani (2013) eKLR*** where the following was observed; - ***“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions.”*** 1. The principle was similarly outlined in ***Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR***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 re-analyse 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.”*** 1. ***On whether or not, the respondents proved that the suit parcels were ancestral/family land previously owned by their late uncles and subsequently held by the appellant in trust,* Section 28** of the **Land Registration Act** recognizes a customary trust as an unregistrable overriding interest against a registered title. 2. The section provides that; - ***“Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register—*** 1. ***deleted by Act No. 28 of 2016, s. 11(a);*** 2. ***trusts including customary trusts;*** 3. ***rights of way, rights of water and profits subsisting at the time of first registration under this Act;*** 4. ***natural rights of light, air, water and support;*** 5. ***rights of compulsory acquisition, resumption, entry, search and user conferred by any other written law;*** 6. ***deleted by Act No. 28 of 2016, s. 11(b);*** 7. ***charges for unpaid rates and other funds which, without reference to registration under this Act, are expressly declared by any written law to be a charge upon land;*** 8. ***rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription;*** 9. ***electric supply lines, telephone and telegraph lines or poles, pipelines, aqueducts, canals, weirs and dams erected, constructed or laid in pursuance or by virtue of any power conferred by any written law; and*** 10. ***any other rights provided under any written law.*** 1. Further, **Sections 107** and **109** of the **Evidence Act,** imposes the burden of proving whether or not the land is held on trust, upon the party alleging the existence of the customary trust. 2. The guiding criteria on the nature of evidence that is required to establish existence of a trust under **Section 28** of the **Land Registration Act** was outlined by the Supreme Court of Kenya inthe case of ***Issack M’Inanga Kiebia v Isaaya Theuri M’Lintari & another (2018) eKLR*** as follows: ***“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 (sic) as a trustee are:*** 1. ***The land in question was before registration, family, clan or group land.*** 2. ***The claimant belongs to such family, clan or group.*** 3. ***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.*** 6. The respondents’ first obligation in ventilating their claim was to ***plead the foundation of their entitlement*** to the two parcels that they claimed andsecondly**, *to lead evidence on a balance of probabilities proving, the existence of a customary trust in their favour pertaining to the suit land held by the appellant herein.*** 7. The respondents made averments in their plaint to the effect that the appellant held the suit parcels in trust for himself and them. In the same breadth the appellant denied the claim and pleaded that he owns the suit parcels absolutely and he did not hold the properties in trust of anybody. It was his case that he acquired the suit parcels through transmission. 8. During hearing, ***Pauline Wangui Njoka*** testified as **PW1** and in hercross examination, ***she confirmed that their mother was never married and their grandfather was Micere Kiragu.* PW1** further confirmed that ***their mother was given the suit parcels, which land was to be given to them.*** The witness added that their mother was never issued with titles of the suit parcels. 9. In respect to the succession proceedings, she confirmed, she was not aware it was done, and that she only came to know about the cause in 1997. Even at that, she did not file anything to have the same, revoked. PW1 also confirmed that she was aware her brother was given the land but they never got their share. In re- examination, she reiterated that the two parcels were given to their mother and they should be shared amongst them 10. **Peter Munene Gitari** testified as **PW2.** The witness stated, he is the area chief for ***Nduini*** location. He further stated that ***Kinyua Njoka***, **Pauline** **Wangu** and **Janet Muciku** had a land dispute concerning the occupation of **parcel numbers 2540 and 2202.** The **appellant** and **1st respondent** lived on parcel no. **2540** and the appellant had proposed that the **1st respondent do move into parcel no. 2202** so that he could transfer the same in the names of both the respondents. His argument was that, if the respondents do not move into parcel **no. 2202**, they would end up selling the land and then come back and seek a **share of parcel 2540.** Initially, the **1st respondent** declined but upon intervention by the witness, she agreed to move into **parcel no. 2202** with the appellant promising to transfer the parcel in both the respondent’s name. The witness testified and confirmed that the appellant reneged the agreement and efforts to have him comply were unsuccessful 11. **Kinyua Njoka Machere** testified as **DW1.** He adopted his witness statement dated **8th June 2023** as his evidence in chief. **DW1** stated that he was given the suit parcels by their uncles and her sisters were not given a share because they are married. In his cross-examination, **DW1** testified that their mother was not married. He stated that he lived with his uncles, who gave him the land as a gift. 12. While it is not in dispute that in appropriate circumstances, a trust can properly be inferred from the pleadings and from the conduct of parties, ***it remains the duty of claimants to prove their assertion, on a balance of probability.*** 13. **Sections 107** and **109** of the **Evidence Act** placed the burden of proof on the respondents. The two Sections provide as follows: ***“107 (1). Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.*** ***(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”*** ***“109 The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”*** 1. From the evidence on record, ***it is clear that the appellant and respondents are siblings.*** The respondents stated that the land was given to the appellant since he was the only son. It is also clear from the **minutes of June 20th, 2022** adduced as evidence that ***the appellant was willing to give his sisters land but he reneged.*** 2. The evidence of **PW1** was corroborated by **PW2,** the area chief, who confirmed that there was an agreement to transfer the land to the respondents, which this court cannot turn a blind eye to. 3. I also agree with the trial court that it was not in dispute that **Nancy Macere** never got married and that the appellant was given land by virtue of being Nancy Macere’s only son, who was also the eldest amongst the three. 4. With this understanding and background, it is therefore far-fetched, just as observed by the trial court, that the appellant would have been given the land by his uncles with no connection whatsoever to his mother. The main reason the appellant was given these properties by the uncles was because he was the only son, to Nancy Macere and by virtue of him being the only son, he held these properties in trust of his siblings who are the two respondents herein. 5. The appellant should not therefore construe that his uncles’ action to give him the parcel of land was out of abundance or mere act of benevolence. It was to honour the fact, that their sister, though unmarried, had three children, amongst them, the appellant who was her only son. 6. Constructively, the appellant was therefore bestowed the parcels not for him only, but also, to hold, in trust of the two respondents herein, who undoubtedly are his only siblings. 7. In a nutshell, and the foregoing having been observed and considered, I am persuaded to agree with the trial court finding that indeed, a trust, particularly a customary trust had been established, and proved by the respondents, on a balance of probability to merit the grant of the reliefs awarded by the trial court. 8. The defendant’s counter claim in my view, was correctly adjudged as not proved on the required threshold, hence the dismissal was merited. 9. **DISPOSAL ORDER** 10. In the end and having re-evaluated the pleadings and the evidence that was before the trial court, I come to the conclusion that the respondents proved their case to the required standard and that this appeal lacks merit. 11. The appeal is hereby rejected and dismissed for lack of merit. The appellant shall bear costs of the appeal. 12. It is so ordered **JUDGEMENT IS DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF JULY, 2026** **L.T. LEWA** **JUDGE** **IN THE PRESENCE OF:** **FOR APPELLANT: Ms. Nzuki Holding brief for Mr. Nyaga** **FOR RESPONDENTS: Present in person** **COURT ASSISTANT: Ms. Nelly**