https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4610

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELC APPEAL NO. E030 OF 2025** **CHARLES KIRERU MWANGI ………….…………….…1ST APPELLANT** **PETER THIONGO MWANGI ………….…………………2NDAPPELLANT** **MOSES KAGUNYA MWANGI ………….………………3RD APPELLANT** **-VERSUS-** **JESSE MWANGI KIRERU ………………….……………..…RESPONDENT** ***(This is an appeal against the judgment rendered by Hon. Sandra Achieng Ogot, issued at the Principal Magistrate’s Court at Othaya, in MCELC NO. E002 of 2025, dated 29th August 2025).*** **JUDGMENT** 1. This is an Appeal against the Judgment delivered by Hon. Sandra Achieng Ogot, issued at the Principal Magistrate’s Court at Othaya in **MCELC No. E002 of 2025**, dated 29th of August, 2025. The Appellants filed a Memorandum of Appeal dated 26th September 2025, which sets out the grounds of appeal. 2. In summary, the grounds of appeal are that the Learned Magistrate erred by failing to apply the authorities on the law of customary trusts in land and by relying on decisions that Courts of higher status had overturned, and that it need not be expressed and need not be noted on the registered land. 3. That the Learned Trial Magistrate failed to consider the fact that the suit land was reserved for family or clan use, and failed to consider that grandchildren do not inherit from their grandparents while their parent is still alive. 4. It is further contended by the Appellant that the Learned Trial Magistrate erred in law by misapprehending that a trust in land does not arise from the laws of succession or their principles, and that the judgment was at variance with the pleadings, against the weight of the evidence, and based on irrelevant and extraneous circumstances. 5. The Appellant respectfully petitions that: **a) The appeal be allowed,** **b) The judgment of the lower court be set aside, and judgment be entered for the appellant as prayed in the plaint.** **c) The respondent is condemned to pay the costs of this Appeal and those in the court below.** **Summary of the suit before the Trial Court.** 1. Per the Plaint dated January 8, 2025, the Plaintiffs, who are the Appellants herein, aver that the defendant is the registered owner of Mahiga/Kihome/1624, measuring approximately 0.8015 Ha. The Plaintiffs and their five (5) sisters are children of the defendant and of the late Regina Wairimu Mwangi (Deceased), who passed away in 1994. The defendant and his second wife, Mirriam Wairimu Mwangi, have five (5) children, two (2) sons and three (3) daughters. 2. The Plaintiff gave the origin of the suit land. The Plaintiffs’ grandfather, i.e., the defendant’s father, the late Joel Kireru Irungu (Deceased), was the registered owner of the mother title, Mahiga/Kihome/719. Upon his death, it was divided into two (2) equal portions between his two wives, Jane Wairimu Kireru (Deceased), who became the registered owner of LR Mahiga/Kihome/1206, and Esther Wothaya Kireru. 3. Upon the death of the Plaintiffs’ grandmother, the late Jane Wairimu, the defendant and his brother, Moses Kagunya Kireru, inherited the property in equal shares under Nyeri High Court Succession Cause No—1098 OF 2010, in which the Plaintiffs’ grandmother's property, Mahiga/Kihome/1206, was partitioned into Mahiga/Kihome/1624, the suit property registered in favor of the defendant and LR, and Mahiga/Kihome/1625, registered in favor of the defendant’s brother, Moses Kagunya Kireru. 4. According to the Plaintiffs, the suit property is ancestral land that has been passed down from generation to generation within the family, and the family has possessed and occupied it in living memory. 5. They averred that the registration of the suit property in favor of the defendant was in trust for the benefit of the succeeding generation, including the Plaintiffs and the rest of the family, as a customary trust over the said land, which need not be entered on the title. 6. Upon the death of the Plaintiffs’ mother, the late Regina Wairimu Mwangi (Deceased), the Defendant is accused of taking discriminatory and oppressive actions toward his children born to her. Despite being primarily a resident of Nyandarua, the Defendant denied the Plaintiffs and their sisters the right to set foot on the suit land, on which he has built a house that he occasionally occupies. 7. Due to the Defendant's actions, the Plaintiffs aver that they are forced to stay with other relatives residing near the suit property. 8. Further, the defendant is accused of transferring the registered ownership of Gitugi Tea Factory Number 396 and Land Parcels Nyandarua/Ol Joro Orok Salient/124 into Nyandarua/Ol Joro Orok Salient/15606 to his wife, Mirriam Wairimu Mwangi, who collects revenue for tea grown on the suit land, without the consent of the Plaintiffs and the rest of the family. 9. The Defendant was accused of being hellbent on changing ownership of the suit land or disposing of it in favor of his second wife, Mirriam Wairimu Mwangi, and the children born from their union. 10. The Plaintiff sought the following orders: **(a) A declaration that land parcel No. Mahiga/Kihome/1624 was registered in the defendant's name as trust land but held in trust for the defendant and the plaintiffs, among others.** **(b) This Honorable Court hereby orders the registration of a formal legal trust concerning land parcel No. Mahiga/Kihome/1624, in favor of all the children of the defendant, including the Plaintiffs and the other children of the late Regina Wairimu.** **(c) This Honorable Court issues an order for the registration of an equitable share of the tea collection revenues from the Mahiga/Kihome/1624 in favor of all the defendant’s children, including the Plaintiffs and the other children of the late Regina Wairimu.** **(d) A permanent injunction restraining the defendant, whether by himself, his agents and/or servants, from dealing with, interfering with, alienating, or otherwise disposing of the Mahiga/Kihome/1624.** **(e) Costs of this suit and interest.** **(f) Any other relief that this Honorable Court may deem just to grant.** 1. The Defendant, who is the Respondent in this Appeal, filed his statement of defense and denied holding the suit land parcel in trust for the Plaintiffs, stating that it was transmitted to him through **Nyeri High Court Succession Cause No. 1098 of 2010**, to which the Plaintiffs were not beneficiaries. 2. The hearing of the suit concerning the property commenced on 24th April 2025, with PW 1, the 1st Plaintiff, presenting his evidence in chief, which included his witness statement and a bundle of documents. In his witness statement, he reiterated the contents of their Plaint. He requested that the title to the suit land be registered as trust land. 3. On cross-examination, PW 1 stated to the Court that he was aware that the suit land passed through succession from his grandfather to his grandmother and then to his father. He acknowledged that he was not named as a beneficiary, and, as a result of that succession, he did not file a protest. 4. He stated that he did not want to inherit the suit land while he was still alive, but that he was also entitled to it, noting that the defendant did not have an absolute right to distribute the property as he wished while he was alive. 5. PW 2, Moses Kagunya Kireru, also gave his evidence for the Plaintiff’s case and adopted his witness statement dated 8th January 2025 as his evidence in chief. He stated therein that he is an uncle to the Plaintiffs and that his late father, Joel Kireru Irungu, was the registered owner of LR. Mahiga/Kihome/719. Upon his death, it was divided into two equal portions between his two wives. Upon the death of their mother, Jane Wairimu, he and the Defendant inherited her property known as LR. Mahiga/Kihome/1206, which was partitioned into 2 equal portions for them and became known as LR. No. Mahiga/Kihome/1624 in the Defendant’s name and LR. No. Mahiga/Kihome/1624 in PW 2’s name. 6. PW 2 stated that the suit property is their ancestral land, passed down from generation to generation, and that the registration of the suit property in favor of the defendant was held in trust for the benefit of the succeeding generation, including all his children. 7. He also confirmed that the Plaintiffs and his nieces have been locked out of the suit land by his brother, the Defendant, despite the Defendant's primary residence being in Nyandarua. 8. On cross-examination, PW 2 stated that their sisters agreed that the two of them would be beneficiaries and that only their sisters, not their children (the grandchildren of their deceased mother), could claim trust over their parcels of land. However, he stated that the Plaintiffs have an equal right to claim the suit property, as his children do to LR 1625, since he and the Defendant also inherited from their parents. 9. DW 1, the Defendant herein, testified for his case and adopted his witness statement dated 24th February 2025 and his bundle of documents as his evidence in chief. He stated that LR. No. Mahiga/Kihome/1624 is his land, which he holds for his own benefit. He further stated that he inherited it from his mother, who owned LR. No. Mahiga/Kihome/1206, from which the suit parcel emanated. 10. He highlighted that at the time his late Mother’s succession matter was filed, the Plaintiffs were of age, and if they had any claim to the land, nothing would have prevented them from lodging a claim in **High Court Succession Cause No. 1098 of 2010**. 11. The Defendant’s position is that he has never been required to hold the suit land in trust for his children and that the decision to bequeath the suit land to either of his children, or not, is solely his. 12. He further denied the allegation that he had denied his children access to his homestead, stating that they had a gathering at his home between March and April 2021, during which he hosted all his children, and that, in 2024, the 2nd and 3rd Plaintiffs visited his home. He stated that the Plaintiffs’ suit has no basis, discloses no cause of action against him, and should be dismissed with costs. 13. Upon cross-examination, the Defendant confirmed that he did not purchase the suit land but inherited it from his father, who bequeathed it to his mother, who then bequeathed it to him. He stated that his children must wait for their inheritance and that the land belongs to the family, but the Plaintiffs cannot claim it by force. 14. The Defense closed its case, and the parties filed their respective written submissions. The trial court pronounced its judgment on August 29, 2025, finding that the Plaintiffs would have any say over the suit property only if the Defendant were deceased, in which case they could claim it as his direct beneficiaries. 15. The Trial Court found no evidence that the grandfather or grandmother had stated that the suit property was to be held in trust. It noted that the Defendant has absolute ownership of the property and that there is no legal obligation upon a father to leave an inheritance for his children or to mandate that his property be preserved or passed down. While encouraging the parties to pursue mediation, the Trial Court dismissed the Plaintiff’s suit with costs. It is this decision that the Appellants herein have sought to appeal. 16. The Parties filed their written submissions on appeal, which the Court has duly read and considered. **Analysis and determination** 1. The role of an appellate court was articulated by the Court of Appeal in the case of **Muthandi v Muthandi (Civil Appeal No. 484 of 2019) [2025] KECA 2040 (KLR) (28 November 2025) (Judgment),** as follows: ***“As this is a first appeal, it is our duty to analyze and re-assess the evidence on record and reach our own conclusions in the matter. It was put more appropriately in Selle v Associated Motor Boat Co. [1968] EA 123, thus: “An appeal to this Court from a trial by the High Court is by way of retrial, and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”*** 1. The case before the Trial Court involved a claim of customary trust over the suit land, LR. No. Mahiga/Kihome/1624, registered in the Respondent’s name. There is no dispute that the Plaintiffs are the Respondent’s sons and that the Respondent inherited the suit property from his mother, Jane Wairimu, who was the registered owner of the mother title, LR. Mahiga/Kihome/1206. The original title was LR. Mahiga/Kihome/719, registered in the name of the Defendant’s father/Plaintiff’s grandfather. Upon his death, it was divided into two equal portions between his two wives. 2. The Appellants have raised several grounds of appeal, which I believe can be condensed into one issue for determination: does the Respondent hold LR No. Mahiga/Kihome/1624 in trust for the Plaintiffs and the rest of his family? 3. It is settled law that a customary trust must be proven. The Learned Judges of the Supreme Court in **Kiebia v M’lintari & another (Petition 10 of 2015) [2018] KESC 22 (KLR) (5 October 2018) (Judgment),** relied upon by the Appellants herein in their submissions, established that: ***“Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor is subject under the proviso to Section 28 of the Registered Land Act. Under this legal regime (now repealed), the content of such a trust can take several forms. For example, it may emerge through evidence that part of the land, now registered, was always reserved for family or clan uses, such as burials, and other traditional rites. It could also be that other parts of the land, depending on the specific group or family setting, were reserved for various future uses, such as construction of houses and other amenities by youths graduating into manhood. The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor. Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are:*** ***1. The land in question was, before registration, family, clan, or group land*** ***2. The claimant belongs to such family, clan, or group*** ***3. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous.*** ***4. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.*** ***5. The claim is directed against the registered proprietor who is a member of the family, clan or group.”*** 1. From the history of the suit land, the Appellants’ grandfather bequeathed it by transmission to his wives upon his death. After the death of the Respondent’s and PW 2’s mother, she bequeathed it to them, who are now the registered owners of the resultant subdivisions known as LR. No. Mahiga/Kihome/1624 and LR. No. Mahiga/Kihome/1625. This is in line with the hierarchy of inheritance set out in the Law of Succession Act, Cap 160. 2. Based on the evidence presented by the parties, there is no indication that the suit land was registered in the Respondent’s name to be held in trust for the Appellants, nor is there any indication that it was to be held as customary trust land. 3. It is also settled law that children are not entitled to inherit from their parents, and certainly not from their grandparents if their parents are alive. The Court of Appeal, sitting here in Nyeri, affirmed this position in the decision of **Nahashon Karenge & another v Lawrence Karenge [2014] KECA 532 (KLR),** in which the Court of Appeal held that: ***“There is no vested right to inheritance during the lifetime of parents. Let it be known that during the lifetime of their parents, and subject to beneficial and occupation rights, a child cannot force parents to sub-divide and distribute their land or assets unless the said land or assets were acquired and held in trust prior to the parents’ acquisition of title to the same.”*** 1. Because the parties have not established trust, the Appellants cannot be presumed to have customary trust rights in the suit property. Accordingly, the Appeal lacks merit and is hereby dismissed with costs. **Dated, signed, and delivered virtually in Nyeri on this 2nd day of July 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Ms. Wahiego for the Appellant** **Ms. Macharia for the Respondent** **Denis - Court Assistant**