[2025] KEELC 434 (KLR)

Muthoni (Suing as a Personal Representative of Phyllis Wanjiru Njoroge - Deceased) v Ngugi & 3 others (Environment & Land Case 342 of 2018) [2025] KEELC 434 (KLR) (10 February 2025) (Judgment)

Neutral citation: [2025] KEELC 434 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 342 of 2018

JA Mogeni, J

February 10, 2025

Between

Serah Njeri Muthoni

Plaintiff

Suing as a Personal Representative of Phyllis Wanjiru Njoroge - Deceased

and

Charles Njoroge Ngugi

1st Defendant

Lucia Wanjiru Ngugi

2nd Defendant

Samson Mahugo Ngugi

3rd Defendant

Land Registrar, Nairobi

4th Defendant

Judgment

1. The Plaintiff brought this suit against the Defendants and on behalf of the 2nd Plaintiff. The 1st Defendant is the administrator of the suit property which was registered in the name of Ngugi Njoroge who is the father of the 1st Defendant. The Plaintiff avers that the late Ngugi Njoroge had a sister by the name Phylis Wanjiru Njoroge who lived in the same plot No. Dagorretti/Riruta/340 with the deceased.

2. That the mother of the Plaintiff, Hannah Muthoni was the daughter of Phylis Wanjiru Njoroge. That the Plaintiff lived on the same suit property with her mother Hannah Muthoni who however passed on in 2009.

3. That she learnt that the 1st Defendant had secretly applied for Letters of Administration of the estate without involving the Plaintiff and her siblings with the intention of disinheriting them from what the Plaintiff believes is the ancestral land. Yet for purposes of administering an estate of a deceased person it is important to obtain consent from all parties concerned.

4. That according to the Plaintiff, LR Dagorretti/ Riruta/340 is ancestral land and that the Plaintiffs have lived on this land since they were born. Further that they are lawful beneficiaries of the suit land by virtue of it being ancestral land.

5. It is the Plaintiff’s contention the 1st and 2nd Defendants with the aid of the 3rd Defendant have fraudulently caused the replacement of title of the entire suit property to themselves with the aid of the 4th Defendant and there is real danger that the 1st and 2nd Defendants may proceed to sell and transfer or charge the suit property.

6. The Plaintiff has termed the actions of the 1st to 3rd Defendants as being unlawful and illegal and particularized their actions as being fraudulent and listed the actions as:Particulars of Frauda.That the family of the 1st to 3rd Defendants willfully failed to involve the family of Phylis Wanjiru Njoroge in the sale of the ancestral parcel LR Dagoretti/Riruta/340 measuring 0. 4856 Ha.b.That before and during the transfer of the portion LR Dagoretti/Riruta/6550 to Jackson Mahindi Gitonga, the family of the 1st to 3rd Defendants failed to disclose to the Land Registrar that the original parcel LR Dagoretti/Riruta/340 was ancestral land that they were holding on behalf of themselves and the family of Phylis Wanjiru Njoroge.c.That the 1st to 3rd Defendants concealed this information willfully in order to defraud the family of the late Phylis Wanjiru Njoroge.

7. That despite demand being made and notice of intention to sue they have failed and refused or ignored to make good the Plaintiff’s claim.

8. The Plaintiff in her amended Plaint dated 3/05/2023 and 5/6/2015 seeks the following orders;a.A declaration that the original portion LR Dagoretti/Riruta/340 was ancestral land which was subdivided and bore two portions namely LR Dagoretti/Riruta/6549 and LR Dagoretti/Riruta/6550. b.A declaration that the original portion LR Dagoretti/Riruta/340 was held in trust by Ngugi Njoroge on his behalf and on behalf of his sister Phylis Wanjiru Njoroge now deceased.c.A declaration that Ngugi Njoroge willfully and without the consent of Phylis Wanjiru Njoroge sold half portion to one Jackson Mahindi who acquired title LR Dagoretti/Riruta/6550. d.A declaration that the remaining portion which is the suit parcel LR Dagoretti/Riruta/6549 belongs to the family of the late Phylis Wanjiru Njoroge by way of trusteeship who is currently represented by the Plaintiff.e.An order that LR Dagoretti/Riruta/6549 be transferred from the names of the 1st to 3rd Defendants to the estate of Phylis Wanjiru Njoroge (deceased).f.That the Land Registrar be ordered to cancel the name of the 1st to 3rd Defendants in the title LR Dagoretti/Riruta/6549 and issue a new title deed in the name of Phylis Wanjiru Njoroge (deceased).g.Costs of this suit, interest accrued and damages for loss suffered by the Plaintiff’s family.h.Any other reliefs this Honorable Court deems fit to grant.

9. In his Statement of Defence dated 1/04/2019 the 1st Defendant denied the averments of the Plaintiff but admits that Ngugi Njoroge (deceased) sold ½ of the suit property to the 2nd Defendant before he died and that the deceased’s son George Njoroge and the 2nd Defendant petitioned for the Grant of Letters of Administration.

10. It is the averment of the 1st Defendant that LR Dagoretti/Riruta/340 has never been held in trust for the Plaintiffs and that is why Ngugi Njoroge sold part of the land to the 2nd Defendant without any objections from any family member. At the same time the 1st Defendant denies the averment that for over 20 years the title of the suit property has been in safe custody of the office of the District Officer Dagoretti Division because of an existing land dispute between the son of Njoroge Ngugi, one George Njoroge Ngugi and Hannah Muthoni. It was his averment that he will at the opportune time raise a Preliminary Objection to have the suit struck out.

11. He thus prays that the suit be dismissed with costs to the 1st Defendant.

Plaintiff’s case 12. PW - 1 Serah Njeri Muthoni adopted her witness statement and asked the Court to adopt as exhibits her list of documents and to be marked as Plaintiff’s Exhibits 1-7. The 1st Defendant’s counsel had raised objection to the adoption of the photographs for lacking a Certificate of Electronic Evidence and the Court in its Ruling allowed the Plaintiff to produce in Court the certificate.

13. It was her testimony that she had filed the case on behalf of Phylis as per the Limited Grant which she had produced at page 41 of the Plaintiff’s bundle. In her bundle she produced the Chief’s letter which is at page 22 and is dated 7/11/2018 that shows that the deceased was her grandmother.

14. She told the Court that the suit property belonged to Njoroge Wa Mili who was the father of Phylis Njoroge her grandmother. That he had two wives and the suit property measuring two acres was allocated to Wanjeri Njoroge who was mother to Phylis and Ngugi Njoroge. Hannah Muthoni was the daughter of Phylis Njoroge and she had settled on the suit property with her children. The late Ngugi Njoroge’s children were not staying on the suit property.

15. She stated that the suit property is written in the names of Charles Njoroge, Lucia W. Njoroge and others. These are children of Ngugi Njoroge. She contended that the suit property belonged to the parents of Ngugi Njoroge who was holding in trust for the household of his mother Wa Njeri.

16. On cross-examination she testified that the suit property was ancestral land and that she had a letter from the District Officer which she produced at page 23 of the Plaintiff’s bundle. She further testified that the first entry on the green card bore the name of Ngugi Njoroge but that it is because his father was deceased.

17. She also told the Court that there is a Confirmed Grant in the Plaintiff’s bundle at page 14 showing that the administrators as Ngugi Njoroge for the LR Dagoretti/Riruta/340 and the beneficiaries as Ruth wa Njiru Ngugi, Charles, Samson and Phylis Njoroge.

18. On re-examination she restated that the suit property was ancestral land and that they have buried 7 family members on the suit property. That despite their being on the land where their mother live and was buried, in 2018 they were chased from the suit property. She testified that Ngugi Njoroge was written as the owner since the father died before registration processes commenced. Therefore he is registered in trust for Phylis Wanjiru Njorge and the suit property does not belong to him. That during burial of Ngugi Njoroge, Jackson Mahindi the 3rd Defendant stated that he had been sold to a portion of the suit property and so the title was deposited at the District Officer’s (DO) office.

19. That the case for HCC 1919 of 1993 was in Court and the Court in dismissing it stated that it could revoke title since that was not its jurisdiction. With this the Plaintiff closed its case.

Defendant’s Case 20. DW1 - Charles Njoroge Ngugi testified as defence witness and stated that he was a civil servant and he adopted his witness statement as evidence in chief and list of documents dated 20/06/2022 as exhibits.

21. It was his testimony that suit parcel number LR 6549 was disposed. That it was in his father’s name and following the Succession Cause 1919 of 1993 which involved his mother and George N Ngugi, Samson, Phylis and John Kamau Ngugi where the grant was confirmed, the land was sold in 2020. It was his stand that the land has never been ancestral land. That his father obtained the suit property from the colonial government and he was at liberty to sell the land.

22. He told the Court that his father sold the land to Jackson in 1971. He confirmed that the people that the Plaintiff said were buried on the land were indeed buried there.

23. Upon cross-examination he testified that he was born in 1970 and that his mother is Lucia Wanjiru wife to Ngugi Njoroge who was son of Njoroge Ngugi and his sibling was Phylis Wanjiru Njoroge who was the 1st Plaintiff’s grandmother. He stated that though Phylis, Hannah Muthoni were buried on the suit property they were buried there by force although he did not lodge a case in Court neither did he report the forced burial to the police. He stated that George Njoroge, Paul Gichuhi, and one Njoki plus Phylis Wanjiru his aunt and his cousin Hannah Njoki all lived in his father’s house.

24. He testified that he can only confirm that George Njoroge stayed and built his own house but he demolished it when he moved out voluntarily. That his father’s house was not demolished but the houses belonging to Serah’s siblings (1st Plaintiff), Njoki, George and Phylis were demolished.

25. It was his word to the Court that his father acquired the suit property from the colonial government although he had no Letter of Allotment except for the greencard. Further that a portion of the land was sold in 2020 since there were no orders stopping the sale of the property. That it was disposed off by the beneficiaries since they were the ones who knew of the sale of the land.

26. When re-examined, he stated that at the time of eviction, it was Paul Gichuhi, Njoroge and one Njoki who were staying on the suit property. That the Plaintiff was not staying on the suit property. With that the Defendants closed their case

Issues for determination 27. The Court has considered the pleadings filed by both parties, evidence adduced in Court and the written submissions. The issue that present themselves for determination are:i.Whether or not the deceased held the suit land in trust for himself and his sister namely Phylis Wanjiru Njoroge under customary trust.ii.Whether or not the 1st and 2nd Defendants as the administrators of the estate of the deceased Njoroge Ngugi should sub-divide the suit land and transfer to the Plaintiffs their respective shares.iii.What order to make on costs.

Analysis and determination 28. On whether the deceased held the suit land in trust for himself and his two brothers, the Supreme Court of Kenya in the case of Isack M’inanga Kiebia Vs. Isaaya Theuri M’lintari & Another [2018] eKLR set the elements that would qualify a claimant as a trustee as follows:a.The land in question was before registration, family, clan or group land.b.The Claimant belongs to such family, clan or group.c.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.d.The Claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.e.The claim is directed against the registered proprietor who is a member of the family, clan or group.

29. The facts of the present case are fairly straight forward and partly uncontested. It is not contested that the parties herein are all members of the family of one Njoroge Wamili (deceased) and that the said Njoroge Wamili was the original owner of the suit land before land was registered in the name of Ngugi Njoroge. The relationship of the parties and particularly the Plaintiffs to the family of the original owner cannot be said to be so remote or tenuous as to make their claim idle or adventurous because the 1st Plaintiff and the 2nd Plaintiff are the great grandchildren of the original owner and that Ngugi Njoroge was the brother to the grandmother of the Plaintiffs Phylis Wanjiru Njoroge who was the mother to Hannah Muthoni the mother to the Plaintiffs.

30. It is also not contested that the suit land is registered in the name of the Ngugi Njoroge (deceased) and that the 1st and 2nd Defendants are children of Ngugi Njoroge (deceased) who was a brother to Phylis Wanjiru Njoroge the grandmother to the 1st and 2nd Plaintiffs. That the 1st and 2nd Defendants are in the process of transmitting the suit land through succession process. These facts fit perfectly in the criteria set out by the Supreme Court in the case cited above. They satisfy the elements listed as (a), (b), and (c) therein.

31. One other element is that the 1st and 2nd Plaintiffs could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances. According to the Plaintiffs they were entitled to be registered as owners of the respective shares of the suit land allocated to them by the original owner through their relationship with one Phylis Wanjiru Njoroge. Their evidence is that the portion that had been allocated to Phylis Wanjiru is where they had settled on as children of Hannah Muthoni Njoroge the daughter of Phylis Wanjiru Njoroge. That their house is still on the land they were evicted and part of their houses demolished.

32. The letter dated 15/06/2011 from the District Officer (DO) of Waithaka Division Mr. F. K. Murage attest to the challenges that the parties to this suit have experienced for over 20 years as stated. The families have appeared before the Dagoretti Lands Dispute Tribunal and that the mother of the Plaintiff passed on before the dispute was concluded. The letter from the DO also states that Hannah Muthoni was buried on the same plot. The letter was produced by the Plaintiff as part of her exhibits.

33. The Plaintiff alleged fraud on the part of the 1st Defendant and even itemized what she considered to be fraudulent acts. Fraud, the law requires should be specifically pleaded.

34. Fraud has been defined in Black’s Law Dictionary 11th Edition as “A knowing misrepresentation or knowing concealment of material facts made to induce another to act to his or her detriment.” It is an established principle of law that a claim based on fraud must be specifically pleaded and strictly proved. Fraud was specifically pleaded in paragraph 8 of the Joint Statement of Claim and the particulars thereof itemized. The Court of Appeal in Vijay Morjaria Vs. Nansingh, Madhusingh Darbar & Another [2000]eKLR held that:“It is well established that fraud must be specifically pleaded and the particulars of fraud alleged must be stated on the face of the pleading. The act alleged to be fraudulent must of course be set out and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved and it is not allowable to leave fraud to be inferred from the facts.”

35. On the standard of proof required for claims based on fraud, Courts have held that the standard of proof is higher than in the ordinary civil cases. In Koinange & 13 Others Vs. Charles Karuga Koinange 1986 KLR at page 23 the Court held that:-“When fraud is alleged by the Plaintiffs the onus is on the Plaintiffs to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt, something more than a balance of probabilities is required.”Also in the case of Kinyanjui Kamau Vs. George Kamau [2015] eKLR the Court dismissed the appeal as it was not demonstrated that the Appellants had proved fraud to the required degree and stated that:“It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo [2008]1KLR (G & F) 742 wherein the Court stated that “... we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove the allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely; proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in criminal cases ...”In case where fraud is alleged it is not enough to simply infer fraud from the facts.”

36. Under the provisions of Sections 107 to 109 of the Evidence Act, the burden of proof is on the Plaintiff to prove that the transactions were fraudulent.

37. I have considered the evidence on record and particularly the evidence of PW1, PW2 and PW3. It shows that the Trustees of the 1st Plaintiff as the owner did not participate in the process of sub-division of the suit land and subsequent transfer of the resultant parcels in favour of the Defendants. That other people other than the said Trustees, coordinated by the 3rd Defendant signed the documents in place of the Trustees. The Transfer form in respect of parcel No. 1957 was produced as exhibit it shows that East African Yearly meeting of Friends appeared before the advocate to sign the transfer form. This cannot be possible as such organisations can only appear through their authorised officials /agents; in this case, the Trustees. Pw1 in his testimony pointed out numerous anomalies on the instruments of the transaction. The Plaintiff’s evidence stands unchallenged.

38. Having carefully analysed the evidence placed before the Court I find that the Plaintiffs have discharged the burden of proof and demonstrated to the required standard of proof that the sub-division of the suit land and subsequent transfer of the resultant portions in favour of the Defendants was fraudulent. Consequently, the titles held by the Defendants are defective pursuant to the provisions of Sections 26 (1) (a) and (b) and 80 of the Land Registration Act and ought to be cancelled.

39. The Defendant’s on his part has denied all the averments of the Plaintiff and he even stated that it is not true that for over 20 years the title of the suit property has been in safe custody of the office of the District Officer Dagoretti Division because of an existing land dispute between the son of George Njoroge Ngugi and Hannah Muthoni.

40. In her response to the 1st Defendant’s statement of defence, the 1st Plaintiff on behalf of the 2nd Plaintiff, states that the suit property was divided into two portions without the involvement of the Plaintiffs giving rise to Dagoretti/Riruta/6549 and 6550 the later having been registered in the name of the 3rd Defendant Jackson Mahindi Gitonga. She holds that the original land No. Dagoretti/Riruta/340 was held in trust by Ngugi Njoroge for his sister Phylis Wanjiru Njoroge who lived on the same suit property with him. That the land was given to him Ngugi Njoroge by his father Njoroge Wamili who was given the land by the government and died before titles were issued. Although the son of Ngugi Njoroge shared out the suit land and even sold some portion this was not the right approach to use. That they were not entitled to be registered as owners. According to the 1st Plaintiff the action of the 1st Defendant made them absolute owners of the entire of the suit land.

41. Evidence on record is that the Plaintiffs’ were born and stayed on the suit property until 2018 when they were evicted by the 1st and 2nd Defendants. The 1st Defendant admitted that even the grandmother of the Plaintiffs stayed not only on the land but in the same house with the father of the 1st Defendant. He even admitted that all the 7 family members who have passed on including the Plaintiff’s mother and grandmother were all buried on the suit property.

42. The 1st Defendant did not explain why the grandmother and mother of the Plaintiff stayed not only on the land but in the same house as the 1st Defendant’s father. Also why when they passed on they were buried on the suit property. Although he testified that they were buried there by force he did not place any evidence before the Court to support this claim of use of force. He also did not tell the Court who used force to ensure the grandmother and mother of the 1st Plaintiff were buried on the suit property.

43. He tried to explain how his father acquired the suit land by stating that his father was given the land by the colonial government and that he did not inherit it from his father Njoroge Wamili. But he had no evidence of such allotment. He was also not able to explain how a portion of the suit property was sold to one Jackson Mahindi by his father. There was no sale agreement that was presented before the Court. Neither was there evidence presented of the consideration paid.

44. The Court is persuaded to believe the evidence of the Plaintiffs that the land held by the 1st Defendant is indeed held on his behalf for the other beneficiaries who are entitled to a share of the land.

45. The Court therefore finds that a customary trust exists in favour of the Plaintiffs over the suit land and that the Deceased held the suit land in trust for himself, the sister Phylis Wanjiku and by extension in her absence the child of Phylis Hannah Muthoni (now deceased) and therefore the children of Hannah Muthoni in equal shares under the customary trust.

46. On whether or not the 1st Defendant as the administrator of the estate of the deceased should sub-divide the suit land and transfer to the Plaintiffs their respective shares, Section 28 of the Land Registration Act provides that a customary trust is an overriding interest to which all registered land is subject. It 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 on the register-(a)….(b)Trust including customary trusts(c)…(d)….(e)….(f)…..(g)….(h)….(i)….(j)…..

47. The Court has already found that a customary trust exists over the suit land. It means that although registered in the name of the deceased or the 1st Defendant, the suit land is subject to the customary trust in favour of the Plaintiffs in accordance to the provisions of Section 28 Land Registration Act. There is no dispute that the 1st Defendant is the personal representative of the deceased. The 1st Defendant produced a Grant of Letters of Administration as exhibit. The copy of register produced as exhibit shows that the suit land has been transmitted into the name of the Defendant as the personal representative and there is a Confirmed Grant which has however been challenged. Since this Court does not handle matters of grant of trust, I will limit my observations to the issue of customary trust and the resulting actions.

48. One of the obligations of the 1st Defendant as Administrator of the estate of the deceased under Section 83(f) of the Law of Succession Act Cap 160 Laws of Kenya is to distribute the assets in the estate of the deceased according to the beneficial interests therein. It follows that the Defendant who is the personal representative of the deceased Ngugi Njoroge ought to distribute the estate and transfer to the Plaintiffs their respective shares.

49. On costs Section 27 of the Civil Procedure Act provides that costs of any action, cause or other matter, or issue follow the event.

Conclusion 50. On the basis of the finding herein namely; that there exists a customary trust in favour of the 1st Plaintiff and her brother 2nd Plaintiff, over the suit land, that the Deceased held the suit land in trust for himself, the 1st Plaintiff and her brother in equal shares and that the Defendant as the administrator of the deceased’s estate has an obligation to distribute the estate to all beneficial interests, the Court finds that the Plaintiffs have proved their case on a balance of probabilities and enters Judgement in their favour for:a.A declaration that the original portion LR Dagoretti/Riruta/340 was ancestral land which was subdivided and bore two portions namely LR Dagoretti/Riruta/6549 and LR Dagoretti/Riruta/6550. b.A declaration that the original portion LR Dagoretti/Riruta/340 was held in trust by Ngugi Njoroge on his behalf and on behalf of his sister Phylis Wanjiru Njoroge now deceased.c.A declaration that Ngugi Njoroge willfully and without the consent of Phylis Wanjiru Njoroge sold half portion to one Jackson Mahindi who acquired title LR Dagoretti/Riruta/6550. d.A declaration that the remaining portion which is the suit parcel LR Dagoretti/Riruta/6549 belongs to the family of the late Phylis Wanjiru Njoroge by way of trusteeship who is currently represented by the Plaintiff.e.An order that LR Dagoretti/Riruta/6549 be transferred from the names of the 1st to 3rd Defendants to the estate of Phylis Wanjiru Njoroge (deceased).f.1st Defendant to execute all documents necessary so as to effect the transfer of the suit land and in default the Deputy Registrar of the Court to execute the requisite documents in place of the Defendant.g.That the Land Registrar is hereby ordered to cancel the name of the 1st to 3rd Defendants in the title LR Dagoretti/Riruta/6549 and issue a new title deed in the name of Phylis Wanjiru Njoroge (deceased).h.Costs of this suit are awarded to the Plaintiff.

51. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 10TH DAY OF FEBRUARY 2025. ……………………MOGENI JJUDGEIn the presence of:-Ms. Mekoye for PlaintiffMr. Ogara holding brief for Mr. Khakula for 1st, 2nd and 3rd DefendantsNo appearance for 4th DefendantMs. Ann - Court Assistant……………………MOGENI JJUDGE