[2019] KEELC 2636 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MAKUENI

E.L.C SUIT NO.312 OF 2017

MONICA MUKULU MUTETI alias MONICA MUTETI............PLAINTIFF

VERSUS

MUTAVA MAINGI..........................................................................DEFENDANT

JUDGMENT

1. The Plaintiff moved court by way of a plaint dated 06th July, 2017 and filed in court on 14th July, 2017 seeking the following orders:-

1. An order declaring that land parcel No.NZAUI/NZIU/270 is held and registered in the name of the defendant to hold in trust for the Plaintiff and or her deceased husband Muteti Maingi.

2. An order compelling transfer of 1/3 of the land equivalent to the Plaintiff herein and or to the estate of Muteti Maingi-deceased.

3. Alternatively and failure to comply with 2 above, the Deputy Registrar of the court do execute transfer documents.

4. Costs of this suit plus interest thereon.

5. Any other or further relief as this Honourable court may deem fit and just to grant.

2. The Plaintiff brought the suit on behalf of the estate of Muteti Maingi (hereinafter referred to as the deceased) having obtained letters of administration ad litem in Makueni PM succession cause No.56 of 2017. She has averred in paragraphs 5 and 6 of her plaint that in 1970, the late Maingi Mbindyo divided his land into three portions where he gave two portions to his first house registered in the names of two sons namely Kyenze Maingi and Mutava Maingi to hold in trust for the other two brothers and the 2nd house was given the 3rd portion. That the 1st portion is shared between Kyenze, Yalo and Kyungu and is registered in the name of Kyenze Maingi to hold in trust for the other two brothers while the 2nd portion is shared between Mutava, Muteti and Mukeni and is registered in the name of Mutava Maingi to hold in trust for other two brothers. In paragraph 7 of her plaint, the Plaintiff has averred that her claim is for declaration of customary trust against title No.Nzaui/Nziu/270 in her favour and/or in favour of her late husband, Muteti Maingi (the deceased).

3. The Plaintiff’s claim is denied by the Defendant in his statement of defence dated 02nd August, 2017 and filed in court on 10th August, 2017. He has averred in paragraphs 4 and 5 of his defence that he is the sole legal and registered owner of all that parcel of land known as Nzaui/Nziu/270 as he has been exclusively utilizing it since he acquired it. That there is no such customary trust arising or in existence with respect to the said land parcel No.Nzaui/Nziu/270 since he is the exclusive legal owner, an issue the Plaintiff has denied in her reply to defence dated 12th October, 2017 and filed in court on 13th October, 2017.

4. At the hearing, the Plaintiff produced letters of administration to enable her file this suit on behalf of the estate of Muteti Maingi as P.Exhibit No.1. She added that the deceased was her husband and that the Defendant herein, Mutava Maingi, is the third sibling of her deceased husband. The Plaintiff adopted the statement that she recorded on 06th July, 2017 as her evidence.

5. It was the Plaintiff’s evidence that there were arbitration proceedings over land parcel No.Nzaui/Nziu/269 and Nzaui/Nziu/270. She produced the arbitration proceedings as P.Exhibit No.2. She also produced a letter dated 07th November, 1989 and written by the chief Matiliku to the Land Control Board as P.Exhibit No.3. A second letter dated 11th July, 2016 written by the assistant chief to the assistant Registrar was produced as P.Exhibit No.4. The Plaintiff produced a letter dated 02nd July, 2016 written by the clan as P.exhibit No.5. All the letters indicate that land parcels No.Nzaui/Nziu/269 and Nzaui/Nziu/270 are family land. The Plaintiff went on to say that the Defendant did not comply with what was agreed at the arbitration proceedings that land parcel No.Nzaui/Nziu/270 be subdivided into three portions forcing her to file this suit against the Defendant after serving him with a demand letter (P.Exhibit No.6). It was her evidence that she is entitled to a portion of the said parcel of land despite the same being registered in the Defendant’s name.

6. Upon being cross-examined by Mr. Muumbi for the Defendant, the Plaintiff told the court that she knows the land was acquired by one Maingi whom she said that he had two (2) homesteads. She also said that when she married her late husband in the 1950’s, she found the land in Maingi’s name. She said that she did not know the outcome of the suit that her late father in-law had filed at Machakos Law Courts against the Defendant herein. She said that she did not participate in Nairobi Succession Cause No.29/05 nor does she know that James used the grant to have the land parcel No.269 registered in his name. She reiterated that she and the children of her late husband claim land parcel No.Nzaui/Nziu/270. According to her, the Defendant holds the said parcel of land Nzaui/Nziu/270 in trust for others. She however said that she does not know if the said land is registered in the Defendant’s name but added that the same was registered in his name by the time her father in law died.

7. The Plaintiff’s evidence in re-examination was that land parcels No.268, 269 and 270 were initially one parcel in the name of Maingi Mbindyo. She said that land parcel No.270 is registered in the Defendant’s name on behalf of her deceased husband as well as one Mukeni.

8. The Plaintiff called Gedion Kyungu Maingi (PW1), James Mwanthi Maingi (PW2), Muthini Isili (PW3) and Philes Mbaki Mutuku (PW4) as her witnesses. The four gave evidence in support of the Plaintiff. Briefly, Gedion’s (PW1) evidence was that land parcel No.Nzaui/Nziu/270 is registered in the Defendant’s name and that he is expected to share it with the Plaintiff’s husband as well as one Mukeni Maingi. Muthini’s (PW3) evidence was that he is a member of Aombe clan and that he attended the meeting that was held in the home of the Defendant on 02nd July, 2016. He said that the meeting made a follow up of the resolution of another clan meeting held in 1989 (P.Exhibit No.3) where it was resolved that Maingi’s land be sub-divided between his two wives.

9. Gedion’s (PW1) evidence in cross-examination was that he did not attend the meeting where it was resolved that his father’s land be subdivided. He said that no one objected when the land was registered in the name of the Defendant because he held the land on behalf of others. He said that he and the Defendant reside on the said parcel No.270 and denied the suggestion that he had conspired with others to grab land from the Defendant.

10. James’ (PW2) evidence in cross-examination was that Gideon (PW1) and the Defendant reside in parcel No.270. He added that parcel of land is registered in the name of the Defendants even though it was allocated to the husband of the Plaintiff together with Mukeni and the Defendant. He said that he could not tell what parcel number plot 268 was before it was surveyed.

11. Muthini Isili’s (PW3) evidence in cross-examination was that the late Maingi sub-divided his land in 1989. He went on to say that he attended the clan meeting that was held in the same year. That he was the clan secretary and that the clan intended to sub divide the entire land. He said that he witnessed when the late Maingi acquired the land. That his sons were young children then. He said that the Defendant failed to attend the meeting because the intention of the clan was to subdivide land parcel No.270 which was then registered in the Defendant’s name. Regarding the case that the late Maingi had filed in Machakos against the Defendant, Isili (PW3) told the court that the former abandoned the case after the latter kept on adjourning it.

12. Mutuku’s (PW4) evidence in cross-examination was that in 1970, the late Maingi summoned him and others to a meeting whose agenda was sub-division of his land. The witness said that he did not have the minutes of the meeting. That the late Maingi subdivided his land, allocated the upper part to Muteti, Mutava and Mukenyi. Like Isili (PW3), Mutuku (PW4) told the court that the land was acquired by the late Maingi. He further said that he was not aware if the subdivision that was done by the late Maingi was ever reduced into writing and pointed out that he was aware that the title to parcel No.270 is in the Defendant’s name.

13. The Defendant’s case was that in the year 1955, he together with his father and elder brother left for Nziu to look for land. That he settled in the upper part while his elder brother took the lower part with his father taking the middle part of the land that they acquired. That the three sub-divided the land amongst themselves and denied holding the suitland in trust for the Plaintiff. The Defendant produced his documents which include title deed and certificate of official search for land parcel No.Nzaui/Nziu/270 as P.Exhibit Nos.1 to 8 respectively. According to the Plaintiff, the only land that the family can inherit is the one occupied by James Mwanthi as it belonged to their father.

14. The Defendant’s evidence in cross-examination was that according to his identity card that was issued to him in 1996, he was 10 years old when he acquired his land. He said that the registered owners of land parcels Nzaui/Nziu/268, 269 and 270 do not hold them in trust for others. He added that he acquired his title deed in 1990 the same year that his father sued him. It was also his evidence that his father did not pursue the suit that the latter had filed against him.

15. Mukeni Maingi (DW1), Alice Mumbe Kyenze (DW2), Josephat M. Kasimu (DW3), Manthi Mwau Yuva (DW4) and Mbithi Syuma (DW5) gave evidence in support of the Defendant. The six defence witnesses adopted their respective statements as their evidence in chief.

16. Mukeni’s (DW 1) evidence in cross-examination was that Muteti who is the husband of the Plaintiff is entitled to inherit his father’s land. He also said that although he saw clan elders planting sisal plants, Muteti was not to get the share of his land.

17. Alice’s (DW2) evidence in cross-examination is similar to that of Mukeni (DW1).

18. Josephat (DW3) had nothing to say in his evidence in cross-examination with regard to parcel No.270.

19. In his written submissions, the Plaintiff’s Counsel framed two issues for determination namely: -

(a) Whether the Defendant holds land parcel number Nzaui/Nziu/270 in trust?

(b) Who is to pay costs of the suit?

On the other hand, the Defendant’s Counsel framed four issues for determination namely: -

(a) Whether the Plaintiff has proved a customary trust over land parcel number Nzaui/Nziu/270?

(b) Whether customary law trust can arise without possession occupation or use of land?

(c) Whether land parcel number Nzaui/Nziu/270 is ancestral land?

(d) Who bears this costs?

20. In my judgement, I will adopt the issues that were framed by the Defendant’s Counsel.

21. On the issue of whether or not the Defendant holds land parcel No.Nzaui/Nziu/270 in trust and/or that Plaintiff has proved customary trust over the said land, the Plaintiff’s Counsel cited Section 28 (b) of the Registered Land Act Chapter 300 (now repealed) which provides as follows:-

“……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 in the register…… trusts including customary trusts.”

The Counsel further cited Section 126(1) of the same Act which provides as follows:-

“A person acquiring land, lease or charge in a fiduciary capacity may be described by that capacity in the instrument of acquisition and, if so described, shall be registered with the addition of the words “as trustee”, but the Registrar shall not enter particulars of any trust in the register.”

It was the Counsel’s submissions that the late Maingi Mbindyo subdivided his land amongst his family comprised of two houses. Two portions were allocated to two sons of his 1st house to hold in trust for the other siblings. The Counsel went on to submit that the Plaintiff’s evidence is corroborated by all the witnesses who testified on his behalf. The Counsel cited the case of Kanyi vs. Muthiora [1984] KLR 712 CA where the court held that the registration of land in the name of a proprietor under the Registered Land Act did not extinguish rights under Kikuyu customary law and neither did it relieve the proprietor of the duties or obligations as trustee. The Counsel went on to cite the case of Njenga Chogera vs. Maria Wanjira Kimani & 2 others [2005] eKLR.

22. The Counsel submitted that the registration of the Defendant as the absolute owner of land parcel No.Nzaui/Nziu/270 was done with the knowledge of the Plaintiff’s family. That where the Plaintiff has settled is his personal property which the Defendant cannot use to deny her a portion of subject suitland.

23. The Defendant’s Counsel submitted that the Plaintiff and her witnesses alleged that the two parcels of land i.e. Nzaui/Nziu/269 and Nzaui/Nziu/270 were registered in the names of Kyenze Maingi and Mutava Maingi respectively to hold in trust. The Counsel pointed out that it’s worth noting that there are three portions involved herein but it appears that it is only the Defendant’s parcel of land which is targeted for unknown reasons. The Counsel added that the three parcels are;

(a) Nzaui/Nziu/268 registered in Maingi Mbindyo’s name who is the father of the Defendant and father in law of the Plaintiff (emphasis are mine).

(b) Nzau/Nziu/269 – Kyenze Maingi

(c) Nzaui/Nziu/270 – Mutava Maingi Mbindyo

The Counsel submitted that land parcel No.Nzaui/Nziu/268 has already changed into the name of James Mwanthi Maingi as can be seen from copies of official search produced as D.Exhibit No.2. the Counsel added that D.Exhibit No.1 shows that in all the three parcels of land, there were no encumbrances that were registered. That the title deeds were issued under the repealed Registered Land Act chapter 300 whose Sections 28 and 30provide as follows:-

Section 28

“The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject –

(a)to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and

(b)unless the contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared by section 30 not to require noting on the register:

Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee.

Section 30

Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register –

(a)rights of way, rights of water and profits subsisting at the time of first registration under this Act;

(b)natural rights of light, air, water and support;

(c)rights of compulsory acquisition, resumption, entry, search and user conferred by any other written law;

(d)leases or agreements for leases for a term not exceeding two years, periodic tenancies and indeterminate tenancies within the meaning of section 46;

(e)charges for unpaid rates and other moneys which, without reference to registration under this Act, are expressly declared by any written law to be a charge upon land;

(f)rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription;

(g)the rights of a person in possession or actual occupation of land to which he is entitled in right only of such possession or occupation, save where inquiry is made of such person and the rights are not disclosed;

(f)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; Provided that the Registrar may direct registration of any of the liabilities, rights and interest hereinbefore defined in such manner as he thinks fit.

The Counsel pointed out that the law today as regards overriding interests is captured in Section 28 of the Land Registration Act No.3 of 2012 which provides as follows:-

Overriding interests

28. 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 –

a) spousal rights over matrimonial property;

b) trusts including customary trusts;

c) rights of way, rights of water and profits subsisting at the time of first registration under this Act;

d) natural rights of light, air, water and support;

e) rights of compulsory acquisition, resumption, entry, search and user conferred by any other written law;

f) Leases or agreements for leases for a term not exceeding two years, periodic tenancies and indeterminate tenancies;

g) 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;

h) rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription;

i) 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

j) any other rights provided under any written law.

It was the Counsel’s view that under Section 28 of the Land Registration Act, overriding interests need not be noted in the register at the time of registration but this is a matter of evidence and that no such evidence was tendered to even suggest the existence of a customary law with respect to the suitland.

24. On the issue of whether customary trust can arise without possession, occupation or use of land, the Defendant’s Counsel submitted that it is clear from the Plaintiff’s evidence, that if her witnesses as well as the defence case that the Plaintiff does not stay, occupy or utilize the suitland. That the evidence shows that she stays in Mtito Andei where she moved in 1970 long before survey was done. The Counsel pointed out the law and the precedents from superior courts state that customary trust cannot arise without possession, occupation or use of the land. The Counsel relied on the case of Mbui Mukangu vs. Gerald Mutwiri Mbui [2004] eKLR where O’Kubasu, Githinji and Waki JJ.A at pages 6 to 7 stated thus:-

“It is nevertheless realized that although peremptory language is used in the registration Act, in sections 27 and 28 there are built-in qualifications for the protection of other persons. Those that are express are discernible in the proviso to section 28 and in section 30 of the Act. The qualifications have however received varying judicial interpretations. This Court for example in Alan Kiama v Ndia Mathunya & others C.A 42/1978 doubted that Customary law rights were excluded from section 30 of the Act as overriding interests. In his usual flair and flamboyance, Madan JA referred to section 30(g) and stated:

“What meaning is to be given to section 30(g)? The rights under customary law may be argued to be extinguished by section 28 – Kneller, J. in Esiroyo v. Esiroyo [1973] E.A. 388, at p. 390. It must refer to equitable rights, it cannot be otherwise, it has to be so to be sensibly interpretable. Over-riding interests which arise in right only of possession or actual occupation without legal title are equitable rights which are binding on the land, therefore on the registered owner of it. Under section 30(g) they possess legal sanctity without being noted on the register; they have achieved legal recognition in consequence of being written into statute; they are not subject to interference or disturbance such as by eviction save when inquiry is made and they are not disclosed. In this case the respondents were in possession and actual occupation of the land and they also cultivated it to the knowledge of the appellant. He made no inquiry, any inquiry by him would have been superfluous; he had himself lived on the land together with the respondents for a time and knew that they cultivated it.

Over-riding interests which so exist or are so created are entitled to protection because they are equitable rights even if they have a customary law flavour or the concomitant aspect of cultivation, which is not listed in section 30. Equity always protects the just rights of the oppressed. Equity always prevents an injustice being perpetrated. Equity sanctifies the administration of justice. Cultivation of land is incidental and an appurtenance of an over-riding interest in right only of possession or actual occupation. There is nothing repugnant about the economic exploitation of land. That is what land is for.”

The other members of the bench, Law and Potter JJA, did not use similar reasoning although they arrived at the same result. Potter JA in part stated:

“The learned Judge held that the suit land was transferred to the appellant subject to the resulting trust in favour of the respondent. I think that was correct, not because of any fraud, but because the land was subject to an overriding interest created by the trust, under section 30(g) of the Land Registration Act (sic). The respondents are in actual occupation of the land”.

That is not what Kneller J (as he then was) strictly meant in Esiroyo’s case or in agreeing with Bennnet J in Obiero v Opiyo [1972] EA 227. But in 1984, Kneller J.A joined Chesoni and Nyarangi Ag. JJ.A in holding that:

“The Respondent had rights against the appellant stemming from possession and occupation of part of the land, which amounted to overriding interest not required to be noted on the register and the appellants proprietorship was subject to it, section 30(g).”

That was in Kanyi v Muthiora[1984] KLR 712. There the Respondent was enforcing the rights of an unmarried daughter under Kikuyu Customary law against her stepmother who had been registered as the absolute owner of the land after the death of her husband, the father of the respondent. As regards claims based on Customary law the same Court held:

“The registration of the land in the name of the appellant under the Registered Land Act (Cap 300) did not extinguish the respondents rights under Kikuyu Customary law and neither did it relieve the appellant of her duties or obligations under section 28 as trustee. ……………….. The Trustee referred to in section 28 of the Act could not be fairly interpreted and applied to exclude a trustee under Customary law, if the Act had intended to exclude Customary law rights it would have been clearly so stated.”

We have also examined other authorities and we think it cannot be argued too strongly that the proper view of the qualification or proviso to section 28 is that trusts arising from Customary law claims are not excluded in the proviso. Such claims may stem from the possession and occupation of part of the registered land which although strictly it may not be an overriding interest under section 30(g), it nevertheless gives rise to a trust which is capable of protection under the Act. After passionately and extensively analyzing the concept of Customary law trusts, Khamoni J. in Gathiba v Gathiba, Nairobi HCCC 1647/84 (decided in January 2001 and reported in [2001] 2 EA 342) at Pg 368 stated:

“The position as I see it is therefore as follows: Correctly and properly, the registration of land under the Registered Land Act extinguishes customary land rights and rights under customary law are not overriding interest under section 30 of the Registered Land Act. But since the same registration recognizes trusts in general terms as is done in the proviso to section 28 and section 126 (1) of the Registered Land Act without specifically excluding trusts originating from customary law and since African Customary Laws in Kenya, generally, have the concept or notion of a trust inherent in them where a person holding a piece of land in a fiduciary capacity under any of the customary laws has the piece of land registered in his name under the Registered Land Act with the relevant instrument of an acquisition, either describing him or not describing him by the fiduciary capacity, that registration signifies recognition, by the Registered Land Act of the consequent trust with the legal effect of transforming the trust from customary law to the provisions of the Registered Land Act because, according to the proviso to section 28 of the Registered Land Act such registration does not “relieve a proprietor from any duty or obligation to which he is subject as a trustee”.

We respectfully agree with that conclusion. Which brings us to the case before us.”

The Counsel submitted that the court observed that:-

“As noted earlier on, Plaintiff had not been able to give a strong case that the land was ancestral. The strength of her case lies more on the aspect of occupation, cultivation and possession.”

The Counsel further submitted that the matter of occupation and use of land is to be decided as a matter of fact as per the evidence adduced.

25. The Counsel cited the case of Isaack M’inanga Kiebia vs. Isaya Theuri M’Lintari & Another [2018] eKLR where the Supreme Court at Paragraphs 27 and 28 observed;

“For this very reason, one High Court decision, Wangulu Enterprises Limited vs. Kugotwa & 6 Others, Mombasa HCCC No.745 of 2001 (O.S) (Ojwang, J as he then was) held that the main issues of land-rights, ought to be resolved on the basis of primary evidence, formally adduced.

[28] In the instant case, the question of possession and use of land was treated as one of fact, to be ascertained by way of formal evidence. It is such evidence taken at the trial court, that was subsequently reappraised by the Court of Appeal; and that Court found that, on a balance of probability, the respondents herein had not proved their possession of Plot No.70”.

Arising from the above chain of authorities from the High Court, Court of Appeal and the Supreme Court, customary trust can only arise where there is occupation and use of land.

26. Regarding the issue of whether or not land parcel No.Nzaui/Nziu/270 is ancestral land, the Defendant’s Counsel cited the Free Dictionary which defines the word ancestral to mean:-

“of, inherited from, or derived from ancestors or of relating to, or evolved from an ancestor or ancestors; Derived from ancestors;

He went on to cite the Law Dictionary which defines the same word as;

“relating to ancestors, or to what has been done by them.”

The Counsel submitted that there was no iota of evidence from the Plaintiff and her witnesses to show that the suitland was ancestral. The Counsel submitted that there was Machakos High Court Civil Case No.77B of 1990 Maingi Mbindyo vs. Mutava Maingi Mbindyo (D.Exhibit No.5) which case never saw the light of the day.

27. The Counsel further submitted that the evidence of the Defendant was that he acquired the land together with Kyenze Maingi and their late father. That they then subdivided it into three parts and each one of them was registered as the sole owner during adjudication. That the clan at one time purported to share the land but the clan chairman advised that the land had title and could not be shared without an order of the court.

28. Of importance to note is that in the case of Isaac M’Inanga Kiebia vs. Isaya Theuri M’Lintari & Another [2015] eKLRparagraph 35, the Supreme Court stated thus;

“Is there a state of uncertainty in the law, arising from contradictory precedents, and warranting this court’s resolution of the doubt” While the question of customary, or generational trust has been determined from time to time, the resulting body of precedent is not clear on the singular question, whether a claimant of a trust in customary law needs to prove actual physical possession, or occupation. Despite an overhaul of the previous land laws, and the enactment of a new Land Registration Act (2012), to consolidate and rationalize the registration of titles, the manner of resolution of the said question will affect pending matters, as well as matters to be heard in the future (pursuant to Section 28(b) of the Land Registration Act). The issue, therefore, will continually engage the workings of judicial organs.”

29. The above was the ruling of the Supreme Court in the aforementioned case. In its judgement over the same suit delivered on 05th October, 2018, the Supreme Court had this to say at paragraph 54:

“in the foregoing premises, it follows that we agree with the Court of Appeal’s assertion that “to prove a trust in land; one need not be in actual physical possession and occupation of the land.” A customary trust falls within the ambit of the proviso to Section 28 of the Registered Land Act, while the rights of a person in possession of actual occupation, are overriding interests and fall within the ambit of Section 30(g) of the Registered Land Act.

Although the Respondents herein were not in possession or actual occupation of parcel No.Njia/Kiegoi Scheme 70, both the High Court and Court of Appeal were entitled to enquire into the circumstances of registration, to establish whether a trust was envisaged. Since the two superior courts were satisfied that indeed elements of a customary trust in favour of the Respondents pertaining to parcel existed, we see no reason to interfere with their conclusions.”

30. Needless to say, the highest court in the land has affirmed that one need not be in actual physical possession and occupation of land in order to prove a trust in land.

31. From the evidence adduced by the Plaintiff and her witnesses, the late Maingi Mbindyo acquired three parcels of land namely Nzaui/Nziu/268, 269 and 270. 268 is registered in the names of James Mwanthi Maingi (PW2) who is a son by the late Maingi Mbindyo’s second wife. That 269 is registered in the name of Kyenze Maingi on behalf of his mother and he is expected to share it with Gedion Kyungu Maingi (PW1) and another brother while the Defendant herein who is the registered owner of 270 is expected to share it with one Mukeni and Muteti. The Defendant in his evidence in cross-examination admitted that from his identity card, he acquired the suitland while he was aged 10 years. I do not believe the Defendant because if this were so, there was no reason why his other siblings who were also young were not given their own parcels of land. It is safe to hold that the land in question was acquired by the late Maingi Mbindyo and upon adjudication it was subdivided into three parcels one held by himself, 269 held by Kyenze Maingi on his own behalf and in trust for two others and 27o held by the Defendant in trust for the late husband of the Plaintiff and a third brother, Mukeni Mangi. Given those circumstances, registration of the Defendant as the proprietor of land parcel No.Nzaui/Nziu/270 did not extinguish the customary trust of the Plaintiff. Even though there was an attempt by the Defendant to show that the suit property is not ancestral land, the fact is clear that it was community land which the late Maingi acquired to be used as family land. Acquisition of community land did not extinguish customary law trust contrary to what the Defendant would want this court to believe. And neither was it extinguished upon the Defendant being registered as the proprietor.

32. The upshot of the foregoing is that I am satisfied that the Plaintiff who has sued the Defendant in her capacity as the administrator of the estate of Muteti Maingi, has on a balance of probabilities proved her case against the Defendant. I do, therefore, proceed to enter judgment in her favour and against the Defendant in terms of prayers 1, 2, 3 and 4 of the plaint.

Signed, dated and delivered at Makueni this 04th day of July, 2019.

MBOGO C. G.,

JUDGE.

In the presence of: -

Mr. Masaku for the Plaintiff

No appearance for the Defendant

Ms. C. Nzioka – Court Assistant

MBOGO C. G. (JUDGE),

04/07/2019.