https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4404

Magiri & another v Kiambi & another (Sued as the Legal Representative of the Estate Kiambi – Deceased) (Environment and Land Appeal E098 of 2025) [2026] KEELC 4404 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEELC 4404 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Appeal E098 of 2025 JO Mboya, J July 9, 2026 Between Elias Muriuki Magiri 1st Appellant Stanley Kathurima 2nd Appellant and Doris Kananu Kiambi & Emily Kendi (Sued as the Legal Representative of the Estate Kiambi – Deceased) Respondent (Being an appeal from the Judgment and decree dated 05.12.2025 by Hon. S Ndegwa – S P M in Meru CMELC No. E003 of 2024) Judgment 1.The Respondents herein [who were the Plaintiffs in the lower court] filed the plaint dated the 26.01.2021 vide Meru CMELC No. E003 of 2024, and wherein the Respondents contended that the LR No. Nyaki/Mulathankari/84 [hereinafter referred to as the suit property], was lawfully registered in the name of their father, namely; Kiambi Magiri [now deceased]. 2.The Respondents further contended that despite the fact that the suit property belonged to and was registered in the name of their father [now deceased], Flora Gakana Magiri [now deceased] and the 2nd respondent, proceeded to and lodged cautions against the suit property. In addition, the Respondents posited that the entry and registration of the cautions, as against the suit property were illegal, unlawful and merely intended to frustrate the Respondents. To this end, the Respondents lodged the original suit against the appellants. The crux of the suit was to remove the impugned cautions and to facilitate the Respondents’ enjoyment of the suit property. 3.The appellants, who were the defendants, duly entered appearance; filed a statement of defence; and counter claim. The amended statement of defence and counter claim is dated the 03.11.2022. The Appellants have contended thus: The Respondents herein are the daughters of one Kiambi Magiri [now deceased]: Kiambi Magiri was a brother of the Appellants mother; the Appellants mother was Flora Gakana [now deceased]; Flora Gakana registered a caution to protect her interest over the suit property; the suit property was registered in the name of Kiambi Magiri to hold on trust for the appellants; Kiambi Magiri sought to sell portions of the suit property; the 2nd appellant was constrained to mount a caution; the caution was intended to protect the Appellants beneficial rights to and in respect of the suit property. 4.Additionally, the Appellants’ posited thus: The suit property does not exclusively form part of the estate of Kiambi Magiri – deceased; the appellants have lawful rights to the suit property; the suit property was family land; and the suit property is held on trust for the family of [sic] John Magiri – deceased. 5.The suit in the lower court was heard and disposed of vide Judgment delivered on the 5th of December, 2025, whereupon the Learned Trial Magistrate found and held that the Appellants did not prove/demonstrate the claim of customary trust. In addition, the trial court held that customary trust requires to be proven on the basis of plausible; cogent; and credible evidence, which the appellants’ had failed to tender. 6.Moreover, the Learned Trial Magistrate [Hon. S Ndegwa – SPM] found that the suit property was lawfully registered in the name of Kiambi Magiri [deceased] and the Respondents, who are the daughters of the said deceased are entitled to exclusive rights thereto. In this regard, the Learned Trial Magistrate proceeded to and directed the removal of the offensive cautions that had been registered against the suit property. 7.On the contrary, the Learned Trial Magistrate found and held that the counter claim, which had been mounted by/on behalf of the appellants’, was bereft of merits. The counter claim was dismissed. 8.Dissatisfied with the Judgment and the consequential decree, the Appellants approached this court vide Memorandum of appeal dated the 19.12.2025. The Appellants have raised numerous, albeit repetitive grounds. 9.The grounds are:i.That the Learned Trial Magistrate erred in law and in fact that she misunderstood the law before her and did wrong interpretation and came to a wrong conclusion.ii.That the Learned Trial Magistrate erred in law and in fact by failing to find that the subject matter parcel of the land L R No. Nyaki/Mulathankari/85 was registered in the named of the deceased Kiambi Magiri while he was only 4 years old as he was the eldest son which implies that he was younger than 4 years when his name was submitted to the Ministry of Lands for registration.iii.That the Learned Trial Magistrate erred in law and in fact in failing to consider the Appellant’s over whelming evidence consisting of several green cards of neighboring and adjacent parcels of land to the suit land showing the parcels being registered in name of the firstborn of the family just like the suit land.iv.That the Trial Magistrate erred in law and in fact by wrongly finding that the parcel of land L R Nyaki No. Nyaki/Mulathankari/84 was given as a gift to the deceased Kiambi Magiri by his grandfather for looking after his cattle despite that he was a just a toddler of only 3-4 years who is too young to look after cattle.v.That the Learned Trial Magistrate erred in law and in fact by failing to find that the subject matter parcel of land L R No. Nyaki/Mulathankari/84 was registered in name of the deceased Kiambi Magiri in trust for other family members being a first born son.vi.That the Learned Trial Magistrate erred in law and in fact by stating that the Appellants had lived on the land for 26 years and failing to appreciate that the suit land was ancestral land of the family and the father of the Appellants and the Respondent’s Father was buried there hence the period was much longer.vii.That the Learned Trial Magistrate erred in law and in fact by stating that the Appellants had failed to enforce their rights during some previous suit involving the same suit land while the Appellants at that time had no reason to do since they trusted in the Respondent’s Father holding the land in trust for them.viii.That the Learned Trial Magistrate erred in law and fact by ignoring the fact that the family of the Appellants and Respondents have another family land which was shared equally among the family members including the father of the Respondents.ix.That the Learned Trial Magistrate erred in law and in fact by failing to consider that the evidence adduced in court showed another parcel of land belonging to the uncle of the Appellants and the Respondent’s falter which was registered in the name of their uncles first born but later shared equally among the children of their uncle.x.That the Learned Trial Magistrate erred in law and fact by failing to appreciate the fact that the second Appellant has developed the suit land immensely for a period of over 20 years.xi.That the Learned Trial Magistrate ignored the evidence and submission of the Appellants misleading herself to make a wrong decision.xii.That the decision of the Trial Magistrate is against the weight of the evidence on record.xiii.That the judgment/decision of the Trial Magistrate is bad in law and case law.xiv.That the Learned Trial Magistrate erred in law and fact in finding that the Appellants had not proved their counter claim in the required standards. 10.The subject appeal came up for directions on the 25.05.2026, whereupon learned counsel for the Appellants intimated to the court that the record of appeal had been filed and served. In addition, it was posited that the record of appeal was complete. Counsel thereafter sought directions as pertains to the hearing and disposal of the appeal. Moreover, counsel proposed to have the appeal canvassed vide written submissions. 11.With the concurrence of the learned counsel for the Respondents, the court proceeded to and issued directions. The directions were: The appeal shall be disposed of vide written submissions; the Appellants shall file and serve written submissions within 14 days from the date of the directions; the Respondents shall file written submissions within 14 days from the date of service; and the Appellants shall be at liberty to file rejoinder submissions [if any] within 7 days from the date of service. 12.The A ppellants’ filed written submissions dated the 08.06.2026. The appellants’ have highlighted and canvassed three[3] key issues. The issues are: The suit property was registered in the name of Kiambi Magiri [deceased] to hold on trust for the appellants; the Appellants tendered credible evidence to demonstrate trust; and the Learned Trial Magistrate misapprehended and misapplied the law as pertains to the plea of customary trust. 13.Additionally, it has been submitted that the totality of the evidence that was tendered before the trial court show that the suit property was registered in the name of Kiambi Magiri [now deceased] by his grandfather, namely Rimberia M’Mugambi [deceased], to hold on trust for one John Magiri [deceased]. Nevertheless, it has been posited that the Learned Trial Magistrate failed to consider and take into account the obtaining evidence and thereafter arrived at an erroneous conclusion. 14.Learned counsel for the Appellants has thereafter cited and referenced various decisions to buttress the contention that the plea of customary trust was duly established. The decisions cited are: Kanyi versus Muthiora [1984] eKLR; Mbui Mkangu versus Gerald Mutwiri Mbui [2004] eKRL and Isack Kiebia M’Inanga versus Isaya Theuri M’Lintari and another [2018] eKRL, respectively. 15.Premised on the foregoing, learned counsel for the appellants’ has implored the court to find and hold that the judgment of the Learned Trial Magistrate is colored with errors and thus same merits being set aside. In this regard, the court has been invited to allow the appeal; set aside the impugned judgment; dismiss the Respondents suit; and in lieu thereof, to allow the counter claim on behalf of the appellants. 16.The Respondents’ filed written submissions dated the 12.06.2026 and wherein same have highlighted and canvased two [2] key issues. The issues are: Whether the Appellants proved that the suit property was held on the basis of customary trust for them or otherwise; and whether the Learned Trial Magistrate properly ordered the removal of the cautions that had been lodged/registered against the suit property. 17.It was the submission by learned counsel for the Respondents that the Appellants herein failed to tender and adduce plausible evidence, to demonstrate that the suit property was registered in the name of Kiambi Magiri [now deceased], to hold on trust for John Magiri [now deceased] and by extension the appellants. In addition, it has been submitted that trust cannot be implied or inferred, unless there exist credible evidence to warrant such inference. 18.Additionally, it was submitted that the burden of proving the plea of customary trust, fell on the shoulders of the appellants. However, it was submitted that the Appellants did not discharge the burden of proof and thus the Learned Trial Magistrate correctly found and held that the counter claim was devoid of merits. 19.To buttress the submissions that the Appellants did not prove customary trust, learned counsel for the Respondents cited and relied on two decisions. The decisions are: Mbui Mukangu versus Gerald Mutwiti Mbui [2004] KECA 155; and Isack Kiebia M’Inanga versus Isaya Theuri M’Lintari and another [2018] eKRL, respectively. 20.Regarding the second issue, learned counsel for the Respondents has submitted that the Learned Trial Magistrate duly appraised the evidence on record and thereafter came to the correct conclusion, namely; that the Appellants’ had not established any lawful basis to warrant the maintenance of the offensive cautions. To this end, counsel posited that the Learned Trial Magistrate correctly appreciated the import and tenor of Sections 71 and 73 of the Land Registration Act, 2012; and thereafter correctly applied same in directing the removal of the caution[s]. 21.In view of the foregoing, it has been submitted that the complaints by/on behalf of the Appellants are devoid of merits. The court has been invited to dismiss the appeal; affirm the Judgment and decree of the lower court; and award costs of the appeal. 22.Having reviewed the record of appeal; the grounds at the foot of the memorandum of appeal; the Judgment appealed against; and the submissions by/on behalf of the respective parties, two [2] issues crystalize for consideration and determination. The issues are: Whether the Appellants established/proved the claim of customary trust to the requisite standard or otherwise; and whether the Learned Trial Magistrate correctly apprehended and thereafter applied the law as pertains to the customary trust. 23.Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a first Appeal. By virtue of being a first Appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first instance. The court is obligated to review the evidence and determine whether the finding[s] and conclusion[s] arrived at by the trial magistrate accord with the evidence on record and the relevant/ applicable legal principles. 24.The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding[s] and conclusion[s] of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principle, which vitiates the findings of the Trial Court. 25.Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. For the avoidance of doubt, the jurisdiction cannot be exercised for the mere asking. 26.The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first Appeal, has been the subject of various court decisions. In the case of Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR). The Court of Appeal expounded on the scope of the jurisdiction. The court stated thus:“ 46.We also wish to be guided by the reasoning of this court in the case of Mwana Sokoni versus Kenya Business Limited (1985) KLR 931 page 934,934 thus:-“Although this court on Appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence on a first Appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses.” 27.Recently, the Court of Appeal revisited the jurisdictional remit in the case of Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR). TheCourt highlighted the principle in the following manner:“We have considered the Appeal, and this being a first Appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court, but of course, where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the Civil Procedure Act, which requires a first appellate court to re-evaluate, reassess, and reanalyse the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows: “Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.” [see also the decision in the case of County Government of Bungoma & 2 others v JOO & 2 others [2024] KECA 1377 (KLR) and County Government of Narok v Ntutu & 2 others [2026] KECA 880 (KLR) – [paragraphs 56 and 57 thereof]” 28.Bearing in mind the principles enunciated in the decisions [supra], I am now well poised to revert to the subject matter and to address the thematic issues highlighted elsewhere hereinbefore. I beg to begin with the first issue, namely; Whether the Appellants established/proved the claim of customary trust to the requisite standard or otherwise. 29.Regarding the first issue, it is imperative to recall and reiterate that the Appellants’ are the ones who contended that the suit property was registered in the name of Kiambi Magiri [now deceased], albeit to hold on trust for them. To the extent that the Appellants posited that the suit property was held on trust for them, it behooved the Appellants to tender and adduce credible evidence to demonstrate the plea of customary trust. 30.To start with, the Appellants’ case at the foot of counter claim was to the effect that the suit property was registered in the name of Kiambi Magiri [now deceased] by his [deceased’s] grandfather. In addition, it was posited that the registration of the suit property in the name of said deceased was to enable same to hold the property in trust for one John Magiri [now deceased]. 31.Additionally, it was posited that the suit property was registered in the name of Kiambi Magiri [deceased] and not in the name of John Magiri, merely because the grandfather of the deceased had registered another land in the name of John Magiri. For coherence, it was contended that the land which was registered in the name of John Magiri, was situated at Ruiri. 32.Moreover, the Appellants’ had contended that because John Magiri [now deceased] had been registered as the owner of the land at Ruiri, same [John Magiri] could not have been registered to own the suit property. In this regard, the Appellants maintained that the registration of the suit property in the name of Kiambi Magiri [deceased] was to hold the land on trust for John Magiri and his family. 33.At this juncture, it is apposite to reproduce the gravamen of the Appellants counter claim. In particular, paragraphs 10, 11 and 12 thereof are pertinent. The paragraphs state thus:“ 10.The defendants aver that their grandfather one M’Rimberia M’Mugambi, who is also the grandfather of the late Kiambi Magari, to hold in trust for his son John Magiri who is the father of the defendants and the plaintiff’s father. 11.The defendant aver that the reason for this registration was that M’Rimberia M’Mugambi had already registered some other land in Ruiri in his sons John Magiri name and as such it was the practice then to register the other land in the name of the eldest son of a beneficiary to a parcel of land. 12.The defendants aver that this registration was done when the late Kiambi Magiri was on four years old and as such it was the intention of Kiambi Magiri to register the land in the name of the minor Kiambi Magiri with full Knowledge that the land essentially belongs to John Magiri and his family. 34.Having made the foregoing assertions, whose details have been reproduced hereinbefore, it was incumbent upon the appellant to show; establish; or prove the following:i.The suit property was one that ought to have been registered in the name of John Magiri [now deceased].ii.The Appellants are related to John Magiri.iii.The registration in the name of Kiambi Magiri was subject to trust. 35.Sadly, the Appellants did not tender any evidence to show that the same are related to John Magiri. I have examined the two sets of statements that were adopted by the appellants. [See the statement dated 22.02.2022 and the further statement dated 03.11.2022, respectively by the 1st appellant]. For good measure, there is no mention/reference of the name of John Magiri at all. In addition, there is no scintilla of evidence to even speak to the land being registered on trust. 36.Similarly, I have also looked at the statement of the 2nd appellant dated the 22.02.2022; and the further statement dated the 03.11.2022. The named statements, replicate the ones recorded and relied upon by the 1st appellant. Notably, the 2nd appellant has also failed to advert to any evidence connecting the suit property to John Magiri. Furthermore, nothing has been said about Trust. 37.It is apparent that the assertions contained in the body of the counter claim were not supported/escorted by any evidence. The assertions remain bare and are thus incapable of founding trust, either as contended or at all. [ See the holding in the case of James Muniu Mucheru versus National Bank of Kenya Limited [2019] eklr, where the Court of Appeal addressed the issue-paragraph 19 thereof]. 38.Other than the foregoing, it is also apparent from the assertions contained in the body of the counter claim that John Magiri [now deceased] through whom the Appellants appear to stake a claim to the suit property, was actually given a separate and distinct land at Ruiri. This position is vindicated vide the paragraphs of the counter claim, whose details have been reproduced elsewhere hereinbefore. 39.Furthermore, I have also referenced the testimony of DW1 [Elias Muriki Magiri] and same confirms that the suit property was gifted to Kiambi Magiri. For brevity, it suffices to reproduce the evidence of the said witness during cross examination. The witness stated thus:“Kiambi Magiri My brother was gifted with the land in 1967. He is the father to Emily Kiende.” 40.My understanding of the evidence [supra] is to the effect that the Appellants are indeed conceding that the land belongs to Kiambi Magiri [deceased] on the basis of gift. Suffice it to state that a gift once perfected vide registration, bestows upon the giftee [Kiambi Magiri] exclusive rights to the gifted property. 41.It is worth restating that the Appellants are the ones who canvassed the plea of customary trust. The appellant therefore bore the burden. In the case of Kazungu Fondo Shutu & another v Japhet Noti Charo & another [2021] KECA 592 (KLR), the court of appeal highlighted the obtaining legal position. The court stated thus:The concept of trust must however be proved. This Court in the case of Mumo v Makau [2002] 1EA.170, held that “trust is a question of fact to be proved by evidence…..” See also Kanyi Muthiora v Maritha Nyokabi Muthiora, Nairobi Court of Appeal No.19 of 1982. 29.In Juletabi African Adventure Limited & another v Christopher Michael Lockley [2017] eKLR, this Court dealt with the issue of trust at length. The Court made reference to Twalib Hatayan Twalib Hatayan & Anor v Said Saggar Ahmed Al-Heidy & Others [2015] eKLR and re-stated the law on trusts as follows: - “According to the Black’s Law Dictionary, 9th Edition; a trust is defined as“1. The right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary).”Under the Trustee Act, “… the expressions “trust” and “trustee” extend to implied and constructive trust, and cases where the trustee has a beneficial interest in the trust property…”In the absence of an express trust, we have trusts created by operation of the law. These fall within two categories; constructive and resulting trusts. Given that the two are closely interlinked, it is perhaps pertinent to look at each of them in relation to the matter at hand. A constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrong doing. … It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such as would demand that equity treats the legal owner as a trustee, the law will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit (see Halsbury’s Laws of England supra at para 1453). As earlier stated, with constructive trusts, proof of parties’ intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment. …A resulting trust is a remedy imposed by equity where property is transferred under circumstances which suggest that the transferor did not intend to confer a beneficial interest upon the transferee ...This trust may arise either upon the unexpressed but presumed intention of the settlor or upon his informally expressed intention. (See Snell’s Equity 29th Edn, Sweet & Maxwell p.175). Therefore, unlike constructive trusts where unknown intentions maybe left unexplored, with resulting trusts, courts will readily look at the circumstances of the case and presume or infer the transferor’s intention. Most importantly, the general rule here is that a resulting trust will automatically arise in favour of the person who advances the purchase money. Whether or not the property is registered in his name or that of another, is immaterial (see Snell’s Equity at p.177) (supra).” 30.The argument by the Appellants was that there was a constructive trust which was breached by the 1st respondent. The 1st respondent on the other hand argued that he inherited the suit property from his late father, and that the suit property was just a small portion of Plot M5 which belonged to his late father. 31.As earlier stated, the existence of a trust is a question of evidence. In the Juletabi case (supra), the court held that the onus lies on the 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 [only] 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.”[Emphasis Supplied]. 42.Bearing in mind, the holding in the decision [supra] and having taken into account the evidence that was tendered by/on behalf of the appellant, I come to the conclusion that the appellant herein did not prove /establish their claim of trust. Suffice it to state that it is not enough to make vague, generalized; and omnibus allegations and thereafter imagine that a court of law will act on such surmises. It behooved the Appellants to tender credible Evidence. 43.Before concluding on this issue, I wish to underscore that the Appellants needed to have appreciated the guidelines/parameters that were highlighted in the case of Kiebia v M’lintari & another [2018] KESC 22 (KLR). 44.The supreme court stated as hereunder:“Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor, is subject under the proviso to Section 28 of the Registered Land Act. Under this legal regime, (now repealed), the content of such a trust can take several forms. For example, it may emerge through evidence, that part of the land, now registered, was always reserved for family or clan uses, such as burials, and other traditional rites. It could also be that other parts of the land, depending on the specific group or family setting, were reserved for various future uses, such as construction of houses and other amenities by youths graduating into manhood. The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor. Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are: 1.The land in question was before registration, family, clan or group 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. 45.I now wish to address the second issue. It is important to state that the Learned Trial Magistrate correctly appreciated that a claim for customary trust must be pleaded; particularized; and thereafter be proved on the basis of credible evidence. In addition, the Learned Trial Magistrate also appreciated that the burden of proving customary trust rested on the shoulders of the claimant. 46.Having appreciated the foregoing, the Learned Trial Magistrate thereafter juxtaposed the evidence that was tendered by the appellant before the court against the set legal principles. The Learned Trial Magistrate viewed the evidence and came to the conclusion, that the Appellants had not met the threshold. 47.On my own, I have reviewed the entire evidence that was placed before the trial court and I come to the same conclusion as the learned trial magistrate. Moreover, it is not lost on me that the evidence that was tendered by the appellants, which was not credible, was in any event, at variance with the counter claim that was filed. Quite clearly, the Appellants did not prove the claim which was pleaded vide the counter claim. 48.In a nutshell, I find and hold that the Learned Trial Magistrate correctly appraised; evaluated; and analyzed the evidence that was tendered before her. Thereafter, the Learned Trial Magistrate arrived at the correct conclusion. I have no basis to depart from the clear findings and conclusions of the learned trial magistrate. Simply put, the Judgment of the trial magistrate is well grounded. Conclusion 49.The Appellants herein had contended that the Learned Trial Magistrate failed to appreciate the totality of the evidence that was placed before her. However, upon review of the evidence on record, I come to the conclusion that the evidence which was tendered; was duly appreciated and correctly interrogated by the trial court. 50.Consequently, and in the premises, I have not found any fault with the Judgment. Conversely, the Judgment is unassailable. 51.On the contrary, it is my finding that the appeal is devoid of merits. The appeal courts Dismissal. Final orders: 52.Flowing from the analysis, the final orders that commend themselves to the court are:i.The Appeal be and is hereby Dismissed.ii.The Judgment of the Learned Trial Magistrate dated the 05.12.2025 and the consequential decree arising therefrom, be and are hereby affirmed.iii.Costs of the appeal be and are hereby awarded to the Respondents.iv.The costs in terms of clause [iii] shall be agreed upon and in default, be taxed in the conventional manner. 53.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 09TH DAY OF JULY, 2026OGUTTU MBOYA, FCIArb; CPM [MTI].JUDGEIn the presence of:Court Assistant: ZakayoMr. Bundi Muthamia for the AppellantsMs. Bett holding brief for Mr. Kiogora Arithii for the Respondents