https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4292

Njagi & 24 others v Kirege (Environment and Land Case E016 of 2022) [2026] KEELC 4292 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEELC 4292 (KLR) Republic of Kenya In the Environment and Land Court at Embu Environment and Land Case E016 of 2022 AK Bor, J June 30, 2026 Between Mugo Micheal Njagi & 24 others Plaintiff and Alfred M. N. Kirege Defendant Judgment 1.Through the plaint dated 13/4/2022, the Plaintiffs claimed that the land known as Evurore/Evurore/17 (the suit land) was adjudicated in 1975 and allocated to members of the Mururi Clan. Their claim is that the suit land was registered in the names of Nyaga Gichindano and Kirege Kirungia as representatives and trustees of Mururi Clan members. Both Nyaga Gichindano and Kirege Kirungia died. They urged that there was an understanding that the suit land measuring approximately 25 hectares would be shared out equally among the 25 Mururi Clan Members. 2.They averred that the Defendant took out grant of letters of administration in respect of the estate of the late Kirege Kirungia and when he filed Siakago PMC Succession Cause No. 35 of 2019, he listed the suit land as one of the properties comprising the free estate of Kirenge Kirungia for distribution among the beneficiaries of his estate despite the fact that the suit land belonged to 25 Mururi Clan members. 3.The Plaintiffs claimed that the suit land measuring approximately 25 hectares (ha) belonged to 25 Mururi Clan members and was supposed to be shared out among them while asserting that some of the members had taken actual possession of their respective portions shown to them on the ground and developing the land as they awaited the transfer of their portions to their names. 4.The Plaintiffs pleaded that they filed Embu ELC No. 18 of 2014 against Nyaga Gichindano but the suit abated a year after his death. In this suit, they seek a declaration that Nyaga Gichindano and Kirege Kirungia were registered in a fiduciary capacity, as trustees and representatives of the 25 members of the Mururi Clan in respect of the suit land. They sought to have the customary trust determined in their favour and for the suit land to be subdivided equally among the Plaintiffs and the Defendant. 5.The Defendant denied the Plaintiffs’ claim and was emphatic that Kirege Kirungia and Nyaga Gichindano were registered as owners of the suit land in their absolute capacity. He maintained that no trust could be inferred to Kirege Kirungia’s estate while pointing out that no one engaged Kirege Kirungia over the land before he died on 2/10/2001. The Defendant denied that there was any agreement or understanding by the Mururi Clan to share the suit land between the 25 members and argued that that allegation was intended to fraudulently acquire the assets of the estate of Kirege Kirungia and Nyaga Gichindano. 6.The Defendant urged that the allegations of trust were false and that the Siakago Magistrates Court dealt with the issue and declared the suit land as free property under Section 26 of the Land Registration Act and that the Plaintiffs were not in occupation of the land. He maintained that had there been a trust as the Plaintiffs contend, then they would have sued his father when he was alive since the suit land was registered in 1987. He urged that the claim was statute barred and res judicata. He asserted that no cause of action existed and that the Plaintiffs lacked the locus standi to sue. 7.Mugo Michael Njage gave evidence on 15/7/2026. He told the court that he brought the suit on behalf of 24 other members of Mururi Clan and his own behalf. He stated that the suit land was adjudicated and allocated to Mururi Clan members during the land adjudication process in Evurore area. Before the registration of the suit land, Nyaga Gichindano and Kirege Kirungia were appointed by members of Mururi Clan to represent them in the appeals involving parcel numbers 17, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31. 8.He stated that Nyaga Gichindano swore an affidavit on 21/5/1986 to the effect that he would not treat those parcels of land as his property but would hand them over to the Mururi Clan. When they failed to do so, Mururi Clan members authorized Mugo Michael Njage to institute a civil case against Nyaga Gichindano but the suit abated after his death. He urged that the suit land was registered in the names of Nyaga Gichindano and Kirege Kirungia in their fiduciary capacity as trustees and representatives of the Mururi Clan. 9.On cross-examination, he told the court that he did not have the register of Mururi Clan members in court. The affidavit which Nyaga Gichindano swore was in respect of the appeal to the Minister for a Section of the Mururi Clan. He told the court that Nyaga Gichindano had his own parcel of land, which was number 30 while Kirege Kirungia owned parcel number 18. He filed an application to challenge the confirmation of the grant before the Siakago Law Courts regarding Kirege Kirungia’s estate but that application was dismissed. He clarified that only parcel number 17 had a problem while emphasising that Nyaga Gichindano was allocated parcel number 30 and Kirege got parcel number 18. He maintained that the suit land had not been distributed on the ground. 10.Ephantus Mugo Chaiti gave evidence and told the court that the late Kirege Kirungia and Nyaga Gichindano were appointed to represent Mururi Clan in the dispute concerning the suit land among other parcels of land. That when he cut a tree on the suit land in 1988, members of the Mururi Clan reported him to the Assistant Chief for cutting down the tree without the permission of the Clan Chairman Nyaga Gichindano. He was ordered to pay Kshs. 400/=, which he paid to the Chairman. 11.The Plaintiffs called the Land Registrar, Immaculate Mutheu Muange to give evidence. She attended court on 6/10/2025 and produced the land register for the suit land. It showed that a title was issued to Kirege Kirungia and Nyaga Gichindano on 7/5/1987 as representatives of Mururi Clan according to the adjudication record of 23/6/1995. The entry noted against the register on 7/5/87 barred dealings with the land until the appeal before the Minister was finalised. That entry was removed by entry no. 2 made on 19/6/89. Another restriction was placed as entry number 3 on 31/08/2006 forbidding dealings with the land without the consent of the Mururi Clan since Kirege Kirungia was dead. Entries number 4 and 5 were noted pursuant to court orders restraining dealings with the land. 12.When the Land Registrar was shown a different search done on 18/3/2022, she confirmed that it did not show that Nyaga Gichindano and Kirege Kirungia held the title as representatives of Mururi Clan. She hastened to add that unlike a search, a green card had all the information. She did not have the adjudication record, which she told the court was kept by the Land Adjudication Officer. She denied that the register was amended between 2021 and 2023. She did not know whether the Defendant did the succession proceedings using the search. She was emphatic that she did not alter the register while pointing out that she was not working in the land registry in 1995. 13.She clarified that the aspect of representation was added on 23/6/1995. The copy of the green card produced by the Defendant showed that the entry was made on 8/5/1995. She maintained that Kirege Kirungia and Nyaga Gichindano were not registered as absolute proprietors and that no title deed was issued to the two. She confirmed that the suit land had restrictions and that had the court handling the succession proceedings known about the representation, it would not have distributed the suit land among the beneficiaries of Kirege Kirungia and Gichindano. 14.Njeru Mbiti gave evidence and confirmed that he was from the Mururi Clan. He stated that from the time the clan gave its members parcels of land, each member was given enough land to share to his children. He stated that the 1st Plaintiff was given parcel number 78. He maintained that the suit land was given exclusively to Nyaga Gichindano and Kirege Kirungia and that there was no agreement with the clan that the land would be held in trust for the clan. 15.He explained that from 1974 when the land adjudication was done until when he wrote his statement, nobody had engaged or sued the late Kirege Kirungia claiming ownership of the suit land. He wondered why the Plaintiffs who he knew were not in actual occupation save for the 3rd and 23rd Plaintiffs and the children of Mugo Gichindano were lying to the court claiming ownership of the suit land. He maintained that the suit land belonged to Kirege Kirungia and Nyaga Gichindano as the absolute registered proprietors. 16.On cross-examination, he told the court that he was present during the adjudication and that Nyaga Gichindano and Kirege Kirungia did the cases for the clan during the land adjudication. When he was shown the affidavit said to have been sworn by Nyaga Gichindano, he told the court he did not know how to read and could not understand the averments in the affidavit. He knew that Kirege Kirungi had land but he did not know whether he had been given that land by the clan. He was buried on that land. He was aware that some Mururi Clan members cultivated the suit land and some were buried there. He knew that Mugo Gichindano, brother to Nyaga Gichindano as well as Mugo’s wife were buried on the suit land. Kiringa Mugo’s wife was also buried there. 17.He denied that he was given an acre of land by the family of Kirege Kirungia. He argued that the suit land was given to the two after they won the case and clan members were given their land. He did not know that Kirege Kirungia was given parcel number 18 or where it was. Similarly, he did not know whether Nyaga Gichindano was given another piece of land. He did not know if there was any other clan land which was given to the two of them. 18.The Defendant gave evidence and reiterated that his father Nyaga Gichindano was given the suit land absolutely and exclusively. He stated that he had been in occupation of the land with his mother since 1983 without being impeded by anyone and that when his mother died on 3/5/2019, she was buried there. He explained that other than Michael Mugo Njage who was given parcel no. 78 by the Mururi Clan, the other Plaintiffs were sons of original clan members of the Mururi Clan. 19.The Defendant told the court that his six brothers occupied and used the suit land and that on the side of Nyaga Gichindano his daughter Esther Mururi was in occupation and that Mugo Gichindano and his children who are the 3rd and 21st Plaintiffs occupied the land. He denied that there was any agreement to share the land or that it was held in trust. He stated that the Plaintiffs waited until his father died in 2000. He added that on 24/8/2001 his father and Nyaga Gichindano met and placed a fence as a common boundary of half the portion of the land. He stated that the issue of representation ended after the minister’s appeal. He termed the filing of this suit after 40 years an afterthought and urged the court to dismiss it. 20.On cross-examination, he stated that he knew his father was given parcel number 17 with Gichindano as well as parcel number 18. He did not know if his father was given a title for parcel number 17. He confirmed that when he filed the succession proceedings in Siakago for his father’s estate, he included parcel numbers 17 and 18 as part of his estate. He used the search to file the succession proceedings and not the green card because in his view, the search would be clear and was convenient to him. He denied misleading the court. He confirmed that his father told him to give Njeru Mbiti one acre of land, which is why he included him in the succession proceedings. He denied that Njeru Mbiti was bribed with one acre of land. 21.He was emphatic that what the Land Registrar told the court to the effect that Nyaga Gichindano and his father were representatives of Mururi Clan was fraudulent. He reiterated that his father and Nyaga Gichindano were absolute proprietors of the suit land. He knew that Mugo Nicasio and Mbugu Muvai were cultivating parcel number 17 and that they were members of the Mururi Clan. He was yet to sue for their eviction from the suit land. 22.They had not subdivided the land among the beneficiaries because there was a prohibitory order. He told the court that when he conducted the succession proceedings, he did not know of the allegation that his father was a representative of Mururi Clan and learned of this later. He was adamant that he did not represent Nyaga Gichindano in this case while pointing out that Nyaga Gichindano died on 17/4/2014. 23.Parties filed written submissions, which the court has considered. The Plaintiff submitted that the suit land was allocated to members of the Mururi Clan in 1975 during the land adjudication exercise. That Nyaga Gichindano and Kirege Kirungia were registered as trustees and representatives of the Mururi Clan on 7/5/1987. They submitted that there was an understanding that the suit land measuring about 62.5 acres belonged to members of the Mururi Clan and would be shared equally among them. 24.The Defendant submitted that the court at Siakago found that the two owned the suit land absolutely while noting that it was trite law that a trust was a registerable instrument, which one needed to prove. He urged that the Plaintiffs were strangers and had not proved that they were clan members. He also contended that the suit was time barred because registration was done in 1987 and added that once the adjudication register was completed the claims ended. 25.The issue for determination is whether the Plaintiffs have proved their claim on a balance of probabilities. Their claim is that the suit land was registered in the names of Nyaga Gichindano and Kirege Kirungia to hold in trust for Mururi Clan members. That when the land was adjudicated in 1975, disputes arose over various parcels of land and the two were appointed to represent the clan in the appeals involving parcel numbers 17, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31. 26.The Learned Magistrate observed in Siakago PMC Succession Cause No. 35 of 2019 that trusts were registrable instruments. Section 28 of the Land Registration Act lists trusts including customary trusts as one of the overriding interests that may subsist and affect registered land without being noted on the register. The court at Siakago was sitting as a probate court handling the succession matter over the distribution of the estate of the deceased and could not in this court’s view have made conclusive findings about the ownership of the suit land in that suit. That determination would fall within the mandate of the land court. 27.The copy of the register which the Land Registrar produced showed that a title was issued to Kirege Kirungia and Nyaga Gichindano on 7/5/1987 as representatives of Mururi Clan according to the adjudication record of 23/6/1995. When Kirege Kirungia died, members of the Mururi clan caused a restriction to be placed as entry number 3 on 31/08/2006 forbidding dealings with the land without the consent of the Mururi Clan. The evidence of the Land Registrar was that Kirege Kirungia and Nyaga Gichindano held the suit land in trust for members of the Mururi Clan. 28.In Isaack M’Inanga Kiebia v Isaaya Theuri M’Lintari & Another [2018] KESC 22 (KLR) the Supreme Court summarised some of the elements that would qualify a claimant as a trustee. These are that the land in question was before registration, family, clan or group land; the claimant belongs to such family, clan, or group; 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; the claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances; and that the claim is directed against the registered proprietor who is a member of the family, clan or group. 29.Several witnesses confirmed that some of the Mururi clan members occupied the suit land and had buried their kin there. It is not in dispute that the suit land was clan land before it was adjudicated. Mugo Micahel Njagi told the court that Nyaga Gichindano was allocated parcel number 30 and Kirege got parcel number 18 and that they were registered as the owners of the suit land as trustees for the Plaintiffs. Had it been that the two held the suit land as the absolute proprietors, then they would have subdivided the land and shared it between the two of them. The other point which cannot be overlooked is that the land registrar confirmed that no title deed was issued to the two persons in respect of the suit land. 30.The Defendant contended that the suit was time barred because registration was done in 1987. This court does not think so because Section 20 of the Limitation of Actions Act stipulates that none of the limitation periods prescribed in that Act apply to an action by a beneficiary to recover trust property in the possession of the trustee. 31.The court grants prayers (a) and (b) of the plaint dated 13/4/2022. Each party will bear its costs. DELIVERED VIRTUALLY AT BUNGOMA THIS 30TH DAY OF JUNE 2026.K. BORJUDGEIn the presence of: -Mr. Githinji Ithigah for the PlaintiffsCourt Assistant- Diana KemboiNo appearance for the Defendant