https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3345

Mwango & 3 others v Mosima & 4 others (Environment and Land Appeal E005 of 2024) [2026] KEELC 3345 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEELC 3345 (KLR) Republic of Kenya In the Environment and Land Court at Nyamira Environment and Land Appeal E005 of 2024 DO Ohungo, J June 3, 2026 Between Florence Mwango 1st Appellant Alice Kemunto 2nd Appellant Thomas Mosima 3rd Appellant Jaspher Nyamongo 4th Appellant and Mzee Samuel Mosima 1st Respondent Harsting Ongati 2nd Respondent Josphat Mbuya 3rd Respondent Justus Rioba 4th Respondent The Land Registrar Kisii County 5th Respondent (Being an appeal from the judgment and decree of the Chief Magistrate’s Court at Nyamira (C I Agutu, Senior Resident Magistrate) delivered on 24th April 2024 in Nyamira MCELC No. E025 of 2021) Judgment 1.Proceedings leading to this appeal commenced in the Subordinate Court on 26th April 2021 when the Appellants filed Plaint dated 23rd April 2021, against the Respondents. The Appellants averred in the Plaint that the First Respondent was the registered proprietor of the parcel of land known as Mwongori Settlement Scheme/58 (suit property) and that he entered into an agreement dated 25th November 2014 with his two families pursuant to which Patricia Kerubo Mosima who was his first wife was to be allocated 10 acres of the suit property while Dinnah Kemunto (deceased) who was his second wife was allocated 8 acres of the suit property. 2.The Appellants further averred that they were legal beneficiaries of the 8 acre portion of the suit property and that the First Respondent breached the agreement on 14th January 2021 when he subdivided the portion. The Appellants therefore prayed for judgment against the Respondents for:a.A permanent injunction do issue compelling the defendants from transferring, conveying, disposing, sub-dividing, and/or demarcating 8 acres of the parcel of land known as Mwongori Settlement Scheme/58 that was allocated to the Plaintiffs and other beneficiaries of the second family i.e. Dinnah Kemunto.b.An order compelling the 1st Respondent to transfer the 8 acres of that parcel of land known as Mwongori Settlement Scheme/58 allocated to the 2nd family to the plaintiffs to hold in trust for the other beneficiaries in the second house.c.An order that the Plaintiffs have a right to get an equal share like other beneficiaries in that parcel of land known as Mwongori Settlement Scheme/58.d.Any other order that this court may deem fit to grant. 3.The First to Fourth Respondents filed Statement of Defence dated 4th May 2021. They admitted that the First Respondent was previously the registered proprietor of the suit property and added that the suit property had since been subdivided and was no longer in existence. They denied the Appellants’ claims of legal or beneficial rights over the suit property and averred that as the registered proprietor, the First Respondent had the right to deal with the suit property. They prayed that the suit be struck out or dismissed with costs. 4.Upon hearing the suit, the Subordinate Court (C I Agutu, Senior Resident Magistrate) delivered judgment on 24th April 2024 and dismissed the case with costs for want of proof. 5.Dissatisfied with the outcome, the Appellants filed this appeal through Memorandum of Appeal dated 30th April 2024 and prayed that the appeal be allowed, that the judgment of the Subordinate Court be set aside and that their claim in the Subordinate Court be allowed. 6.The following are the grounds of appeal as listed on the face of the Memorandum of Appeal: 1.The learned trial Magistrate erred both in law and fact by failing to recognize the customary trust vested in the suit property known as Mwongori Settlement Scheme/58. 2.The learned trial Magistrate erred both in law and fact by dismissing the appellant’s claim despite the overwhelming evidence adduced by the appellants. 3.The learned trial Magistrate erred both in law and fact by failing to recognize the appellants' beneficial interests in the suit property known as Mwongori Settlement Scheme/58. 4.The learned triaI Judge erred both in law and fact by failing to consider the submissions of the appellants. 5.The learned trial Magistrate erred both in law and fact by dismissing the appellants' claim despite them proving their case on a balance of probability. 7.The appeal was canvassed through written submissions. The Appellants filed submissions dated 17th January 2026 while the Respondent filed submissions dated 26th February 2026. 8.It was submitted on behalf of the Appellants that the First Appellant testified that her sister and her contributed financially towards repayment of a loan taken by the First Respondent to acquire the suit property. That the suit property was acquired and held as family land, subject to a family agreement that it be subdivided among two family units. 9.It was further submitted that pursuant to the said agreement, a survey was conducted for purposes of subdivision upon which it emerged that the portion allocated to the first family was less than what was agreed upon, effectively triggering the dispute that led to the filing of the suit before the Subordinate Court. 10.It was equally submitted that after the suit had been filed, the parties voluntarily engaged in court-sanctioned mediation and that the dispute was never about the existence of the agreement, but purely about its inequitable execution. It was further submitted that registration of land does not extinguish customary trusts, that the evidence before the trial Court satisfied the elements of trust and that the Learned Magistrate erred in law by elevation registration above equitable and customary interests. Reliance was placed on the decision of the Supreme Court in Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR. 11.It was also submitted on behalf of the Appellants that they tendered uncontroverted evidence on existence of a family agreement to subdivide the suit property between the two family units and that the Learned Magistrate erred in holding that the First Respondent could deal with the suit property as he wished merely because he was the registered proprietor. That the holding disregarded principles of equity. In conclusion it was submitted that the appeal had merit and ought to be allowed. 12.In reply, it was submitted on behalf of the First to Fourth Respondents that the Appellants did not plead customary trust in their Plaint and that the only mention of the word “trust” was at prayer b of the Plaint through which the Appellants sought to hold 8 acres of the suit property in trust for other beneficiaries. It was further submitted that a party is bound by her own pleadings and cannot venture outside what was pleaded. Reliance was placed on the case of Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR in support of those submissions. 13.It was equally submitted that the Appellants did not produce the alleged agreement dated 25th November 2024 as an exhibit and that the First Respondent, who was the registered proprietor, had all the rights to use and enjoy the suit property pursuant to Sections 25 and 26 of the Land Registration Act and could not be forced to subdivide and distribute it to the Appellants and his other children during his lifetime. Reliance was placed inter alia on the cases of Oganga & Another v Orangi & 3 Others [2023] eKLR, Naashon Karenge & another v Lawrence Karenge [2014] eKLR and Muriuki Marigi v Richard Marigi Muriuki & 2 Others [1997] eKLR. 14.The First to Fourth Respondents concluded by submitting that the Appellants failed to prove their case to the required standard and that the Subordinate Court rightly dismissed it. They urged this Court to dismiss the appeal with costs. 15.The appeal against the Fifth Respondent was withdrawn on 19th March 2026. 16.This being a first appeal, it is important to recall the mandate of a first appellate Court. In that regard, the Court of Appeal held in Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR thus:This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212 wherein the Court of Appeal held inter alia that:“On a first appeal from the High Court, the Court of Appeal should 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 that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 17.I have carefully considered the grounds of appeal, the entire record and the parties’ submissions. The issues that arise for determination are whether trust was pleaded and if so, whether it was established, whether there was an agreement dated 25th November 2014 through which the First Respondent allocated a portion of the suit property to the Appellants and whether the reliefs that the Appellants sought were available to them. 18.There is no dispute that as of the date of filing the suit and trial, the First Respondent was the registered proprietor of the suit property. The rights of a registered proprietor of land are well articulated in law. Such a proprietor is entitled to the rights, privileges, and benefits spelt out under Article 40 of the Constitution which secures protection of right to property and Sections 24 and 26 of the Land Registration Act. Pursuant to Section 26 of the Land Registration Act, the Court is obligated to accept the proprietor’s certificate of title as prima facie evidence of proprietorship, unless the provisos under Section 26 (1) (a) or (b) are established. 19.Section 24 of the Land Registration Act provides as follows:Subject to this Act—(a)the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and(b)the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease. 20.The foregoing exclusive rights notwithstanding, Section 28 (d) of the Land Registration Act acknowledges overriding interests which do not require registration. It provides that all registered land shall be subject to overriding interests as may for the time being subsist and affect it without their being noted on the register, including trusts. Even though Section 25 of the Land Registration Act provides that the rights of registered a proprietor shall not be liable to be defeated except as provided in the Act, subsection 2 thereof is explicit that nothing in the section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee. 21.The Appellants have argued in this appeal that they established the elements of trust. They faulted the Learned Magistrate for not upholding equitable and customary interests or trusts. 22.What is trust? The word is defined in Black’s Law Dictionary, 9th Edition, as a right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title. 23.It is trite that a party who alleges existence of trust must prove it. In Dorcas Indombi Wasike v Benson Wamalwa Khisa & another [2010] eKLR the Court of Appeal stated:The appellant’s counsel, Mr Amolo, cited several authorities and a careful reading of all those authorities reveal one thing. Whether or not a trust exists is a matter of evidence. Those authorities, and in particular Mbothu & 8 Others vs Waitimu & 11 Others [1986] KLR 171, are clear that: -“The law never implies, the Court never presumes a trust, but in case of absolute necessity. The Courts will not imply a trust save in order to give effect to the intention of the parties. The intention of the parties to create a trust must be clearly determined before a trust will be implied.” 24.In Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR, the Supreme Court stated as follows: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. 25.To be in a position to advance a case that the First Respondent held the suit property in trust, the Appellants needed to expressly plead such a case. Parties are bound by their pleadings. The court too is in a sense bound by the parties’ pleadings since pleadings circumscribe the issues for determination and reliefs sought. See Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR. 26.The critical role played by pleadings was restated by the authors of Bullen and Leake and Jacob's Precedents of Pleadings, 12th Edition, London, Sweet & Maxwell (The Common Law Library No. 5) as follows:The system of pleadings operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them. It thus serves the two-fold purposes of informing each party what is the case of the opposite party which he will have to meet before and at the trial, and at the same time informing the court what are the issues between the parties which will govern the interlocutory proceedings before the trial and which the court will have to determine at the trial. 27.I have perused the Plaint which the Appellants filed. I have not found therein any averment to the effect that the First Respondent held the suit property in trust for the Appellants. As the First to Fourth Respondents have correctly pointed out, the only reference that the Appellants made to the word “trust” was in their prayer for an order that they (Appellants) be allowed to hold the portion in trust for other beneficiaries. 28.There is no doubt in my mind that as framed, the Appellants’ case was founded exclusively on what they referred to as an agreement dated 25th November 2014. Contrary to their submissions in this appeal, they did not plead anywhere in the Plaint that they were claiming the portion of the suit property on account of having contributed to its acquisition. I find that no trust was pleaded against the First Respondent and that trust could not therefore be established against him. 29.The next issue for determination is whether there was an agreement dated 25th November 2014 through which the First Respondent allocated a portion of the suit property to the Appellants. Pursuant to paragraphs 7 and 9 of the Plaint, the Appellants averred that the First Respondent entered into the said agreement on 25th November 2014 with his two families and that pursuant to the agreement, Patricia Kerubo Mosima who was the First Respondent’s first wife was to be allocated 10 acres of the suit property while Dinnah Kemunto (deceased) who was the First Respondent’s second wife was allocated 8 acres of the suit property. They further averred that the two families took occupation of their respective portions whose boundaries were established through beacons and that they were legal beneficiaries of the 8 acre portion. 30.The question that must be answered is whether such an agreement existed. The Appellants did not state in their plaint whether the agreement was oral or written. I however note that item number 4 in their list of documents dated 23rd April 2021, which was filed together with the plaint was “copy of consent agreement dated 25.11.2014” and that a copy of a document headed “Agreement(Concernt)” was included in the Appellants’ bundle of documents. 31.I have carefully read the record of the Subordinate Court. The document referred to by the Appellants as agreement dated 25th November 2014 was not produced as an exhibit by the First Appellant who testified as the sole witness in respect of the Appellants’ case. 32.A document not produced as an exhibit does not form part of the record or evidence. That position was reiterated by the Court of Appeal in Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] KECA 334 (KLR) as follows:… How does a document become part of the evidence for the case? Any document filed and/or marked for identification by either party, passes through three stages before it is held proved or disproved. First, when the document is filed, the document though on file does not become part of the judicial record. Second, when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence ….A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit, it is not part of the record. 33.Failure to produce a document that is at the core of a case can be fatal. In Oruko v Mohammed & another [2025] KECA 1288 (KLR), the Court of Appeal held as follows:It remains a rule of thumb that documents to be relied on by a party must be produced to be considered as exhibits. The failure to call the second doctor and a member from the medical board to testify and produce the report was fatal to the appellant’s case and thus the trial court erred in relying on a document that was marked for identification and not produced as an exhibit. 34.The alleged agreement not having been produced as an exhibit, it is non-existent as far as the evidence on record is concerned. Further, the First Respondent is on record as having testified that he did not have any meeting with his family concerning subdivision of the suit property and that he had the right to use the suit property as he wished. Although he admitted signing a document in the year 2014 and even showing members of his family their portions, he emphasized that he did not “sign any title documents” in respect of the portions and that the 2014 arrangement was temporary. 35.As I stated earlier, the First Respondent’s proprietorship of the suit property was not in dispute. His rights as a registered proprietor are not in doubt. He asserted those rights in his testimony. The Appellants are his children, some biological children while others his children according to cultural arrangements. The Appellants’ claim to the suit property largely flows from perceived rights as his children. As of the time of lodging the claim and trial, the First Respondent was alive. 36.Courts have severally restated that children have no right to force their parents to give them a share of their properties during their lifetime. In Muriuki Marigi v Richard Marigi Muriuki & 2 Others (supra), the Court of Appeal held thus:Moreover, considering the provisions of section 3(2) of the Judicature Act which we partly reproduce above, customary law rights being subject to rightly under a written law, the respondents’ rights are clearly excluded by the clear language of Sections 27 and 28 of the Registered Land Act.It is, however, noteworthy that the law of Succession Act, (Cap 160 laws of Kenya) does recognise the rights of wives and children over their husband’s father’s estate as the case may be. Those rights accrue after death. Otherwise the rights remain inchoate and are not legally enforceable in any court of law or otherwise. Whenever they accrue the estate is shared either according to the personal laws of the deceased in case of agricultural land or as provided in the relevant provisions of the Law of Succession Act. The appellant as the registered owner of the suit property is still alive. His property is not yet available for sub-division and distribution among his wives and children except if he personally on his own free will decided to sub-divide and distribute it among them. He may not be urged, directed or ordered to do it against his own will.In the result and for the foregoing reasons, to the extent that the respondents wanted the superior court to compel the appellant to share the suit property during his lifetime in a particular manner and in designated shares, they did not have a cause of action in law respecting which the court would aid them to enforce. 37.I need not say more. The Appellants’ claim was doomed to fail from the onset. 38.Among the documents that the First Respondent produced as exhibits was a certified copy of the green card or register in respect of the suit property and mutation form dated 9th October 2020. The register confirms the First Respondent’s proprietorship and further shows that pursuant to entry number 6 dated 16th March 2021 in the proprietorship section, title in respect of the suit property was closed on that date upon subdivision into parcel numbers Mwongori Settlement Scheme/1244 to 1247. The fact of subdivision is also confirmed by the mutation form. In his witness statement which he adopted as his testimony, the First Respondent stated that the suit property ceased to exist because he subdivided it. 39.Arising from the foregoing, the Appellants not only failed to prove existence and terms of the alleged agreement dated 25th November 2014, but even if they had proved it, their case would still have failed since they sought reliefs in respect of Mwongori Settlement Scheme/58, a property that ceased to exist before they filed their suit. 40.It follows therefore that the Appellants failed to prove their case and that the reliefs that they sought were not available to them. I find no merit in this appeal and I therefore dismiss it. Considering the relationship between the parties, I make no order as to costs. DATED, SIGNED, AND DELIVERED AT NYAMIRA, THIS 3RD DAY OF JUNE 2026.D. O. OHUNGOJUDGEDelivered in the presence of:Ms Momanyi for the AppellantsMs Ochwal for the 1st to 4th RespondentsNo appearance for the 5th RespondentCourt Assistant: B Kerubo