https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4786

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC APPEAL NUMBER E007 OF 2026** CHARLES MUTIANIA ………………….……………..……1ST APPELLANT ISAIAH KIMONGE …………………………….………...…2ND APPELLANT SAMUEL KAILUTHIA ………………………………...……3RD APPELLANT ZAKAYO MWIRIGI …………………………………...….…4TH APPELLANT VERSUS **JOSEPH MUNGATHIA M’MUTEA [Suing as the Administration of the estate of MUTIA MUTIA alias MATEA MUTUEA Alias MUTEA MUTEA – deceased]……………………………….……………………RESPONDENT** *[Being an appeal from the Judgment delivered by Hon. Chief Magistrate HON. Felix Kombo on 18th December 2025; in MAUA CMC ELC NO. 187 of 2018]* ***JUDGMENT*** 1. The Respondent herein *[who was the Plaintiff in the lower court]* approached the court *vide* Plaint dated the 18th of June, 2018; and which Plaint was thereafter amended *vide* Amended Plaint dated 28.02.2022. The Respondent sought various reliefs: 2. The reliefs are: 3. ***A declaration that the defendants’ activities and acts of waste on land parcel No. Kiego/Kinyanka/693[hereinafter ‘the suit land’ are illegal and amount to trespass.*** 4. ***An order of permanent injunction restraining the defendants, by themselves, jointly and severally or by their agents, or any body acting at their behest from entering, cultivating, or in any other way whatsoever, interfering with the suit land.*** 5. ***Damages for trespass.*** 6. ***Costs of the suit.*** 7. ***Interest on [c] and [d] above at court rates.*** 8. ***An order of eviction does issues [sic] against the defendants, their agents and representatives in respect of the suit land at the defendant’s cost.*** 9. ***An order of eviction does issue [sic] against the defendants, their agents, and representatives in respect of the suit land at the defendant’s cost.*** 10. ***That the officer commanding the nearest police station does provide necessary assistance in effecting prayer [f] above.*** 11. The Respondent’s claim was to the effect that: The suit property [LR No. Kiegoi/Kinyanka/693] belonged to and was registered in the name of Mutia Mutia,[now deceased]; the estate of the deceased was duly succeeded; the Respondent was appointed and constituted as the administrator of the estate; the Respondent is entitled to exclusive possession and occupation of the suit property; however, the Appellants herein entered upon and trespassed onto the suit property in the year 2018; the Appellants cut down and fell various trees; the actions of the Appellants have infringed upon the Respondent’s rights; the Appellants have no right or interest over the suit property; and the Appellants ought to be evicted from the suit property. 12. The Appellants, *[who were the defendants in the lower court]* duly entered appearance and thereafter filed a joint statement of defence. The statement of defence is dated the 06.08.2018. The statement of defence was however amended *vide* amended statement of defence and counter claim dated the 14.10.2019. 13. The Appellants’ sought the following reliefs: 14. A *declaration that the plaintiff’s father, Mutia Mutia [deceased] holds land parcel number Kiegoi/Kinyanka/693 in trust for the defendants.* 15. *Permanent order of injunction do issue restraining the plaintiff himself, family, servants, brothers or other persons claiming under similar title from evicting the defendants, interfering, or in any other manner dealing with LR No. Keigoi/Kinyaka/693.* 16. *Costs of the counter claim and interests*. 17. The suit in the lower court was heard and disposed of *vide* Judgment delivered on the 18.12.2025. The learned trial magistrate [Hon. Felix Kombo – Chief Magistrate] found and held that the Respondent had established and proved his claim as pertains to ownership of the suit property. On the contrary, the learned trial magistrate found and held that the Appellants had no rights to or entitlements over the suit property. 18. Premised on the foregoing, the learned trial magistrate entered Judgment in terms of the amended Plaint, save for damages for trespass. In particular, the learned trial magistrate declared that the Appellants herein were trespassers onto the suit property. In addition, the court decreed eviction of the Appellants. 19. Dissatisfied, the Appellants have now approached this court *vide* memorandum of appeal dated the 12.01.2026. The memorandum of appeal was thereafter amended, resting with the amended memorandum of appeal dated the 19.01.2026. The grounds of appeal are: 20. *The learned magistrate erred in law and in fact failure to uphold the Appellant was gifted the suit land by the deceased prior to his death.* 21. *The learned magistrate erred in law and in fact by failure to uphold the that the appellant’s occupation was a matter of customary right.* 22. *The learned trial magistrate erred in law and in fact by holding that customary right does not arise where the property is registered.* 23. *The learned trial magistrate erred in law and in fact by failure to consider Appellants evidence and submissions.* 24. *The learned trial magistrate erred in law and in fact by mixing both law of the succession principles and land law principles which occasioned the Appellants’ substantial prejudice.* 25. *The learned magistrate erred in law and in fact by failure to consider Appellants’ long occupation of the suit land evidence and development with full authority and consent of the Respondent’s father.* 26. *The learned magistrate erred in law and in fact by failure to uphold the Appellants were rightfully gifted 5 acres by the Respondent deceased father.* 27. *The whole trial was unfair and detrimental to the appellant as the ELC determined application for revocation of grant.* 28. The subject appeal came up for directions on the 08.06.2026, whereupon learned counsel for the appellants intimidated to the court that same had since filed and served the record of appeal. In addition, counsel posited that the record of appeal was complete. To this end, counsel invited the court to issue directions as pertains to the disposal of the appeal. Moreover, counsel proposed to have the appeal canvassed by way of written submissions. 29. With the concurrence of learned counsel for the Respondent, the court proceeded to and issued directions pertaining to the disposal of the appeal. The directions were: The appeal shall be canvassed by way of written submissions; the Appellants’ shall file and serve the written submissions within 14 days from the date of the directions; the Respondent shall file and serve written submissions within 14 days from the date of service; and the Appellants shall file rejoinder submissions [if any] within 7 days from the date of service. 30. The Appellants filed written submissions dated the 09.07.2026. The Appellants have raised and canvassed three [3] key issues. The issues are: Whether the suit property is held by the Respondent’s father [now deceased] in trust for the Appellants; whether the Appellants’ uninterrupted occupation, extensive developments and familial inheritance of suit land, confer upon them beneficial ownership and lawful entitlement; and whether the Respondent can lawfully claim trespass and eviction as against the Appellants on the face of clear trust and beneficial ownership. 31. Regarding the first issue, learned counsel for the Appellants’ has submitted that the father of the Respondent [now deceased] took in the 1st appellant as his son. Furthermore, it has been submitted that the Respondent’s father took in the 1st appellant, when same [1st appellant] was barely eight [8] years old. In addition, it has been submitted that the Respondent’s father later on circumcised the 1st appellant alongside the Respondent’s brothers and thus the 1st appellant was dealt with as a son of the Mutia Mutia [now deceased]. 32. Furthermore, it has been submitted that Mutia Mutia [deceased] gave his land [now the suit property] to the 1st appellant in the year 1979. Moreover, it has been posited that the 1st appellant remained in occupation of the suit property and has constructed his matrimonial home thereon. It has equally been submitted that the 1st appellant bore his children and raised same up on the suit land. 33. Premised on the foregoing, it has been submitted that the Respondent’s father held the suit property in trust for the Appellants. Learned counsel for the appellant has thereafter submitted on the question of the customary trust and posited that the totality of the evidence tendered, demonstrate Customary trust. 34. Additionally, learned counsel for the appellant has submitted that customary trust constitutes overriding interest over the land. Besides, it has been submitted that because customary trust is overriding interest, same do not require registration or endorsement on the register. To this end, learned counsel has referenced the provisions of **Section 28 [b] of the Land Registration Act, 2012 [2016].** 35. To bolster the submissions on the issue of trust, learned counsel for the appellant has thereafter cited various decisions. The decisions include **Mwatela and another versus Kalama and 3 others [2025] KEELC 1254; and Kiebia versus M’Lintari and another [2018] KESC 22**, respectively. 36. With respect to the second issue, learned counsel for the appellants’ has submitted that the Appellants have been in occupation of the suit property since 1979. In particular, it has been posited that the Appellants’ have been in occupation for more than 40 years. In addition, it has been submitted that the Appellants have equally undertaken extensive developments on the suit property and thus same have acquired beneficial rights and Interest[s] thereto. 37. Thirdly, it has been submitted that the Respondent herein did not prove or establish the plea of trespass. In any event, it has been contended that trespass cannot exist on the face of trust; and beneficial ownership, in favour of the Appellants. 38. Finally, learned counsel for the appellants’ has also contended that the learned trial magistrate conflated succession principles and land law principles, while dealing with the subject matter. To this end, it has been posited that the manner in which the learned trial magistrate addressed the issues in dispute, has subjected the appellant to grave and substantial prejudice. 39. *In a nutshell*, learned counsel for the appellants’ has submitted that the Appellants established and proved their claim of trust over and in respect to the suit property. Furthermore, it has been contended that the learned trial magistrate misapprehended the evidence on record, and the applicable law. 40. As a result of the foregoing, it has been contended that the appeal is meritorious. The court has been invited to allow the appeal; set aside the impugned Judgment; dismiss the Respondent’s suit in the lower court; and enter Judgment in favour of the Appellants in terms of the amended counter claim dated 14.10.2019. 41. The Respondent filed written submissions dated the 26.06.2026 and wherein same has highlighted three [3] key issues. The issues are: The Appellants did not tender any credible evidence to prove trust; the Appellants’ evidence was contradictory; and the Respondent duly proved ownership right to and in respect of the suit property. 42. Additionally, learned counsel for the Respondent has submitted that insofar as the Respondent is currently the registered owner of the suit property, same [Respondent] is entitled to exclusive possession and occupation of the suit property. Moreover, it has been submitted that the rights of the Respondent are underpinned *vide* the provisions of **Sections 24 and 25 of the Land Registration Act, 2012 [2016].** 43. Finally, learned counsel has submitted that the actions and activities by the Appellants have interfered with and violated the Respondent’s property rights in respect of the suit property. It has been contended that the impugned actions constitute and amounts to trespass. 44. To buttress the foregoing submissions, learned counsel for the Respondent has cited and referenced the decision in the case of Dr**. Joseph N K Arap Ng’ok versus Moijo Ole Keiwua and 4 others [1997] eKLR; Willy Kipsong’ok Morogo versus Albert K Morogo [2017] eKLR and Zacharia Onsongo Momanyi versus Evans Omurwa Onchagwa [2014] eKLR,** respectively. 45. Flowing from the foregoing submissions, learned counsel for the Respondent has submitted that the appeal, is bereft of merits and thus courts dismissal. The court has been implored to dismiss the appeal and to award costs to the Respondent. 46. Having reviewed the record of appeal; the grounds of appeal; the impugned Judgment; and upon consideration of the written submissions filed by /on behalf of the parties, two [2] key issues emerge for determination. The issues are: Whether the Appellants established the plea/claim of trust or otherwise; and whether the Respondent proved his entitlement to the suit property or otherwise. 47. 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 and conclusion arrived at by the trial magistrate accord with the evidence on record and the relevant legal principle[s]. 48. 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 and conclusion 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. 49. 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. It is a jurisdiction that cannot be exercised for the mere asking. In addition, it cannot be invoked at will. **Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya**, regulates its exercise. 50. 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.”* 1. 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).** The Court 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*](https://new.kenyalaw.org/akn/ke/act/1924/3)*, 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]” 1. 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 shall deal with the issues sequentially. I beg to start with the first issue, namely; Whether the Appellants established the plea/claim of trust or otherwise? 2. The Appellants’ herein, filed a statement of defence and counter claim and wherein it was contended that the Respondent’s father, Mutia Mutia [now deceased] held the suit property in trust for the Appellants. Given that the crux of the Appellants’ claim turns on the question of trust, it is apposite to reproduce the relevant segments of the counter claim. 3. The relevant paragraphs are reproduced thus: “***13. The defendants aver that the plaintiffs father, Mutia Mutia [deceased] held the in trust land parcel number Keigoi/Kinyaka/693 for the 1st defendant herein referred to as the suit land, which was part of the estate of the defendant’s father”*** ***“14. The defendants aver that they took occupation of the suit land in the year [1979], planted tea bushes and various species of trees.”*** ***“15. The defendant have utilized the suit land since then to date and not even the plaintiff’s father sought to evict them during his lifetime who unfortunately died before transferring the same to the defendants.*** ***“16. The defendants counter claim pray for declaration that the plaintiff’s deceased father Mutia Mutia holds land parcel No. Kiegoi/Kinyaka/693 in trust for the [sic] defendant.”*** 1. The foregoing excepts represents the totality of the pleadings that were placed before the trial court, to anchor the plea of trust. It is not clear which aspect of trust is being claimed. One cannot discern whether the Appellants’ are propagating resultant trust; implied trust; customary trust; or constructive trust. It suffices to state that every litigant, the Appellants’ not excepted, are called upon to plead their case with the requisite precision/particularity, so at to enable the court of law [the Adjudicator] to appreciate/ comprehend, the cause of action. 2. The importance of specific and precise pleadings cannot be gainsaid. In the case of **Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR),** the Court of Appeal highlighted the legal position thus: “*Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:* *The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”* 1. I am afraid that the aspect of the counter claim that adverted to trust, was ambiguous, equivocal and devoid of precision. The cause of action of trust, was therefore premature and misconceived. 2. Secondly, it is common ground that whosoever seeks to canvass the plea of trust, *save* for constructive trust, which arises by implication[s], is obligated to plead and particularize the trust. In short, it is not enough to plead trust. The claimant must venture forward and supply the particulars, denoting the circumstances underpinning the trust. Simply put, the pleader, must show *vide* the particulars how the trust arises. 3. The law as pertains to the pleading of claims and in particular, trust, is contained *vide* **Order 2 Rule 10 of the Civil Procedure Rules, 2010**. 4. The provisions stipulate thus: 10***. 1. Subject to subrule (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing—*** ***(a)particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and*** ***(b)where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies***. 1. The counter claim by the Appellants, which anchors the claim of trust, was devoid of the particulars. Yet again, the appellants did not meet the prescription of the law. 1. In the case of **John Gitiba Buruna & another v Jackson Rioba Buruna [2007] KECA 431 (KLR),** the Court of Appeal highlighted the manner of pleading a claim of trust. The court underscored thus: **“Mr. Makoloo is also correct that the resulting trust on which the learned Judge relied was not pleaded by the Respondent. Under *Rule 8 (1) (a)* of *Order VI* *Civil Procedure Rules*, a plaint should contain the specified particulars including particulars of trust on which a party relies”** 1. Assuming that what was placed before the trial magistrate would suffice to anchor the plea of trust, which is not the case, I must now turn to the evidence that was tendered before the trial magistrate and which the trial magistrate disbelieved. The 1st appellant had filed a witness statement dated the 24.04.2019 and wherein he stated that Mutia Mutia took him [1st appellant] to go and stay with him [Mutia Mutia]. The 1st appellant posited that after circumcision, some conflicts arose and he went back to his biological parents. However, the 1st appellant ventured forward and stated thus: **“ In 1979 Mutia gave me this parcel of land now registered as Keigoi/Kinyaka/693”** 1. My understanding of the forgoing assertion is that the 1st appellant is admitting that the land, the suit land, which was [sic] being given to him belonged to Mutia Mutia. However, at paragraph 13 of the counter claim, the Appellants, including the 1st appellant, are contending that the suit land was “*part of the estate of the defendants’ father*.” 2. I discern a serious contradiction between the pleading that was placed before the court and the evidence that was tendered. Suffice it to state that a party cannot tender evidence that is at variance with the pleadings. Where such evidence is tendered, the court is entitled to disregard same. Such evidence violates the doctrine of departure. [**See order 2 rule 6 of the civil procedure rules, 2010.]** 3. In the case of **Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR),** the Court of Appeal illuminated the importance of the doctrine of departure and more particularly, that parties are bound by their pleadings. 4. The court stated thus: **“*As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings. For the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The Court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the Court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the Court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice....*** ***In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.”*** 1. Finally, there is the aspect that touches on the contradictions between the evidence of DW1, DW2 and DW3. The contradictions in respect of the evidence by the said witnesses negates the plea of trust. It is pertinent to observe that trust can only be proven on the basis of cogent and plausible evidence. The evidence must be seamless. In addition, the evidence must be flawless. In respect of the instant matter, the evidence was riddled with inconsistencies and material contradiction[s]. The evidence by the Appellants’ were un-believable. It was inconsistent. 2. The law never implies. The courts never presume trust, unless there exist[s] credible basis. None was demonstrated. None was adduced. In the case of **Kazungu Fondo Shutu & another v Japhet Noti Charo & another [2021] KECA 592 (KLR), the court of appeal observed as hereunder:** **“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.”** 1. *In a nutshell*, I do agree with the findings and the conclusions of the trial court, that the Appellants’ did not prove trust. Quite clearly, the plea of trust was not only premature and misconceived, but same was equally untenable. 2. Next, is the issue of whether the Respondent proved entitlement to the suit property? To start with, the Respondent tendered evidence to show how the suit property was adjudicated to and thereafter registered in the name of Mutia Mutia [now deceased]. In addition, the Respondent also tendered evidence that [Mutia Mutai] was his father. 3. Additionally, the Respondent averred that following the death of Mutia Mutia, he [Respondent] took out succession proceedings and thereafter same was issued with a grant of letters of administration. To this end, there is no gainsaying that the Respondent is clothed with the requisite powers and mandate. [See the provisions of ***Sections 79 and 82 of the law of succession Act, Chapter 160, Laws of Kenya.]*** 4. On the basis that the Respondent is the duly constituted administrator of the estate to the deceased, same is bestowed with equal rights over the suit property, just as the deceased. It then means that the Respondent was /entitled to exclusive occupation to the suit property, subject only to the limitations [if any] contained in the grant of letters of administration. 5. The rights that accrue to the Respondents herein, are such that third parties, the Appellants’ not excepted, cannot enter onto the suit property without the consent or the permission of the Respondent. Any such entry, devoid of permission, automatically constitutes trespass. I find and hold that the actions complained of amounted to trespass. 1. In the case of **Church Commissioners for Kenya of the Anglican Church of Kenya v Wayuga [2024] KECA 1048 (KLR**), the Court of Appeal defined trespass in the following terms: “***Trespass is described under the***[***Trespass Act***](https://kenyalaw.org/akn/ke/judgment/keca/2024/1048/aknkeact196248)***Cap 294 to mean “any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof”. On the other hand, a continuing trespass is defined in Jowitt’s Dictionary of English Law 2nd Edition (page or paragraph?) as follows:-“A continuing trespass is one which is permanent in its nature; as where a person builds on his own land so that part of the building overhangs his neighbor’s land”.In Black’s Law Dictionary 8th Edition (page or paragraph?), a continuing trespass is defined as:-“A trespass in the nature of a permanent invasion on another’s rights, such as a sign that overhangs another’s property.”Finally, in Clerk & Lindsel on Torts 16th Edition, paragraph 23 - 01, it is stated that:-“Every continuance of a trespass is a fresh trespass of which a new cause of action arises from day to day as long as the trespass continues*.”** 1. Before concluding on this Judgment, there are two sub -issues, which require mention and short discussion. I have pointed out that I am in agreement with the findings of the learned trial magistrate. But there are two disturbing issues, which cannot be left to lie. They deserve clarification and correction. 2. Firstly, the learned trial magistrate has stated thus: *“The mere fact that the suit land is registered eliminates all prospects of the existence of customary trust and therefore Mr. Mutembei’s submissions in this regard cannot hold.”* 1. The foregoing observation is contra the clear provisions of **Section 25 [1] [b] and [2] and Section 28 [b] of the Land Registration Act, 2012 [2016**]. The correct position of the law, is to the effect that registration does not extinguish trust. Where trust is proven, it constitutes an overriding interest. 2. The second aspect which requires correction relates to the contention that prayer C of the Respondent’s claim could not be granted because there was no evidence to support any loss. Suffice it to state that prayer [c] related to a claim for general damages for trespass. It is common ground that trespass is actionable *per se*. 3. Simply put, once trespass is proven, the claimant is entitled to recompense. He/she does not have to prove loss. Towards this end, the observation by the learned trial magistrate, was with respect, therefore erroneous. 4. In the case of **Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees [2020] KECA 536 (KLR),** the Court of Appeal restated the position of the law thus: ‘The law is that trespass to land is actionable per se (without proof of any damage). In **Park Towers Ltd v John Mithamo Njika & 7 others** **[2014] eKLR** it was stated: **“I agree with the learned Judges that where trespass is proved a party need not prove that he suffered any specific damage or loss to be awarded damages. The court in such circumstances is under a duty to assess the damages** **awardable depending on the unique facts and circumstances of each case...”** 1. Be that as it may, I must point out that there is no appeal [cross appeal] by the Respondent. In this regard, I am arm-strung. I cannot disturb the said finding, *save* to make the clarification, which I have done. **Conclusion:** 1. The Appellants’ herein sought to impeach the Judgement of the learned trial magistrate. It was therefore incumbent upon same to demonstrate the errors and infractions, if any, that bedeviled the Judgment. Sadly, the Appellants have not pointed out any errors. 2. In addition, I am alive to the fact that Appellants attempted to sneak in submissions on the question of “customary trust”. However, it is common knowledge that submissions cannot take the place of pleadings and evidence. [See the apt holding in the case of **Daniel Toroitich Arap Moi versus Mwangi Stephen Mureithi [2014] eklr; and Frank Logistics Limited versus Golden Lion Real Estates Limited and Others [2025] KECA**, respectively] 3. *In a nutshell*, I come to the conclusion that the appeal is bereft of merits. In this regard, the appeal is a sure candidate for dismissal. **Final orders:** 1. Consequently, and in the premises, the final orders that commend themselves to the court are: 2. ***The Appeal be an is hereby Dismissed.*** 3. ***The Judgment of the learned trial magistrate dated 18.12.2025 and the consequential decree arising therefrom be and is hereby affirmed, save for the aspects pointed out elsewhere hereinbefore.*** 4. ***For the avoidance of doubt, the Appellants’ shall vacate the suit property within 90 days from the date hereof.*** 5. ***In default, the Appellants’ shall be forcefully or forcibly evicted.*** 6. ***Costs of the appeal be and are hereby awarded to the Respondent.*** 7. ***The costs in terms of clause [v] above shall be agreed upon and in default, be taxed in the conventional manner.*** 8. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU ON 27TH DAY OF JULY, 2026.** **OGUTTU MBOYA; FCIArb; CPM [MTI-EA].** **JUDGE.** In the presence of: Court Assistant: Zakayo Ms. Asuma holding brief for Mr. Mutembei for the Appellants Mr. Migele for the Respondent