https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4338

Ndirangu & 3 others v Macharia & another (Environment and Land Case E016 of 2022) [2026] KEELC 4338 (KLR) (7 July 2026) (Judgment) Neutral citation: [2026] KEELC 4338 (KLR) Republic of Kenya In the Environment and Land Court at Nyahururu Environment and Land Case E016 of 2022 LN Mbugua, J July 7, 2026 Between James Macharia Ndirangu 1st Plaintiff John Njoroge Ndirangu 2nd Plaintiff Beatrice Nyambura Ndirangu 3rd Plaintiff Peris Wanjiru Ndirangu 4th Plaintiff and Jason Ndirangu Macharia Defendant and Rose Wambui Interested Party Judgment 1.This suit was filed through a plaint dated 2.8.2022. The plaintiffs who are all siblings contend that they are children of the defendant and one Monicah Wambui Ndirangu who died in year 2014. That they have another sibling by the name Loise Waithera Ndirangu who suffers from mental illness. They aver that in year 1980, the defendant together with his brothers John Kigotho Macharia, Paul Githiomi Macharia and Samuel Murimi Macharia were bequeathed shares at Muhotetu Farmers C. Ltd by their father Zachary Macharia Karinga as follows:-a.Samuel Muriithi Macharia - 2 sharesb.Jason Ndirangu Macharia - 2 sharesc.Paul Githiomi Macharia - 1 shared.John Kigotho Macharia - 1 share 2.The plaintiffs pleaded that their grandfather Zachary Macharia Karinga bequeathed the suit land to the defendant as a trustee, thus any dealings on the land without the consent of the plaintiffs is an abuse of the said trust. The plaintiffs therefore seek the following orders;a.A declaration that the defendant was registered as the registered owner of L.R. No. Marmanet/Melwa Block 1 (Muhotetu) 1872, 1873, 1874 and 1875 in trust of himself as well as for the plaintiffs and Loise Waithira Ndirangu (Declaration of a trust).b.That the said trust be determined and the defendant and the Interested Party be compelled to transfer L.R. NO Marmanet/Melwa Block 1 (Muhotetu)/1872, 1873, 1874 and 1875 (Combined) to the plaintiffs as follows:-1.James Macharia Ndirangu - 5 Acres 2.John Njoroge Ndirangu - 9 Acres 3.Beatrice Nyambura Ndirangu - 5 Acres 4.Peris Wanjiru Ndirangu - 5 Acres In the alternative:-c.A customary trust be registered on L.R. No. Marmanet/Melwa Block 1 (Muhotetu) 1872, 1873, 1874 and 1875 and the defendant and interested party be injuncted from evicting the plaintiffs, selling, transferring, charging, subdividing, alienating and/or dealing with the titles to the said properties in perpetual.d.Costs of the suit plus interest at court rates.” 3.The defendant and the interested party opposed the suit vide their statement of defence and counterclaim dated 15.9.2022. The defendant states that he acquired for valuable consideration 200 Ordinary Shares of Muhotetu Farmers Co. Ltd from his father MACHARIA KARINGA and upon transfer of the said shares, he was issued with a share certificate Serial No. 1893 on 29th October 1985. That by virtue of being a member of Muhotetu Farmers Co. Ltd, the defendant was entered in its members’ register, and henceforth he became entitled to the benefits that accrued to other members on account of such shareholding. He then proceeded to settle his family including the plaintiffs on the suit land. 4.That he subdivided parcel 573 (24 acres) into parcels 1872, 1873, 1874 and 1875 of which he transferred L.R. Marmanet/Melwa Block 1/1873 (Muhotetu) to the interested party who is his wife, and on 20th January 2022 she was registered as its proprietor, and as such she procedurally, lawfully and legally acquired it. 5.He also pleads that the plaintiffs’ act of purporting to inherit him during his lifetime, abuse and interference of his proprietary rights and interests over the said parcels of land has necessitated the termination of their licence on the said parcels of land, thus the filing of this counterclaim. 6.In the counterclaim, the defendant and the interested party seek the following orders;a.The plaintiffs to give vacant possession of L.R. Marmanet/Melwa Block 1/1872 (Muhotetu), L.R. Marmanet/Melwa Block 1/1873 (Muhotetu, L.R. Marmanet/Melwa Block 1/1874 (Muhotetu) and L.R. Marmanet/Melwa Block 1/1875 (Muhotetu), and in default, they be forcefully evicted.b.A permanent injunction to issue against the plaintiffs, their servants, agents, members of their families and any other persons claiming through or under them, from entering, using, occupying, possessing or in any other way interfering with L.R. Marmanet/Melwa Block 1/1872 (Muhotetu), L.R. Marmanet/Melwa Block 1/1873 (Muhotetu, L.R. Marmanet/Melwa Block 1/1874 (Muhotetu) and L.R. Marmanet/Melwa Block 1/1875 (Muhotetu).c.Costs of the suit.” 7.At the trial, James Macharia Ndirangu, the 1st plaintiff testified as PW1. He adopted his witness statement dated 2.8.2022 as his evidence. He also produced the 8 documents in their list as their exhibits. His evidenced mirrors their pleadings. He reiterates that their grandfather was a shareholder of Muhotetu Farmers Co. Ltd Member No. 278. That he transferred his shares to his 4 sons as a gift including their father (2 shares) and that is how their father was able to acquire the suit property. The other sons are Johh Kigotho Macharia, Paul Githiomi Macharia and Samuel Murimi Macharia. 8.That they settled on the said parcel of land in the year 1984 and their father assigned different portions of land out of the said 24 acres to each one of them and they are entitled to the portions they occupy as follows;a.James Macharia Ndirangu - 5 acresb.John Njoroge Ndirangu - 9 acresc.Beatrice Nyambura Ndirangu - 5 acresd.Peris Wanjiru Ndirangu - 5 acres.Loise Waithira Ndirangu is to live on the entitlement of John Njoroge for her lifetime as she is mentally unstable. 9.In cross examination, Pw1 stated that he has sued his father because he wants him to divide the family land, that before the father married a second wife, he had given him 5 acres from the 24 acre piece of land. He avers that he has documents showing that his father got the land from his own father which was in form of two shares. He contends that they are questioning why their father gave the family land to his wife. 10.In re-examination, Pw1 stated that as the people in possession of the suit land, they are questioning why they were not consulted when the land was transferred. 11.PW2 is John Kigotho Macharia, an elder brother to the defendant. He avers that their father was Zacharia Macharia. He identifies the plaintiffs as the children of his brother, the defendant. He adopted his witness statement dated 2.8.2022 as his evidence. He states that their father was a member of Muhotetu Farmers Co. and that the defendant got the suit land by virtue of the shares he got from his father. That their father was categorical that the gifted land was to be registered and held on behalf of their children. He is shocked that the defendant subdivided the 24 acres and transferred 6 acres thereof to the interested party. He avers that the plaintiffs reside on the said land with their families. 12.In cross examination, Pw2 stated that his brother got the shares from his father as a gift. He avers that what his father gave them were shares and not land. On his part, he got one share which gave rise to 12 acres in parcel 562 which is for his own family (wife and children). He avers that his brother, the defendant called them when he wanted to marry after the death of his wife, and they adviced him to talk to his children as he could not just marry when there were children on the land. 13.In Re - examination, Pw2 stated that the defendant has no right to sell that land or to evict his children as the latter have nowhere to go. 14.The defendant, Jason Ndirangu testified as DW1. He adopted his witness statement dated 15.9.2022 as his evidence. He also produced the 10 documents in his list as their exhibits. His evidence is that his father Macharia Karinga was a member of Muhotetu farmers land buying company, and in 1980, the father desired to sell some of his shares, giving his family members the first priority to buy the same, while he retained some shares. Thus the defendant acquired for valuable consideration 200 shares, which gave rise to the share certificate no 1893 issued on 29.10.1985, he then balloted for land and got parcel 573. That he settled his family on this land, then he subdivided the same and transferred parcel 1873 to his wife, the interested party. 15.In cross examination, Dw1 stated that his father was Macharia Karinga, a member of Muhotetu. He avers that he tried to be a member of that company in vain. So when the company was trying to buy their 3rd parcel, members were told to look for their children, relatives and friends so as to meet the shares. Thus Dw1’s father told him that he was selling his own shares so as to meet the company’s obligations. That is how he ended up buying 2 shares from his father which culminated in the original parcel 573. However, he has no evidence of how he paid for the shares as he was dealing with his father. 16.He added that his father also sold shares to Dw1’s brothers Samuel Murimi, Paul Githiomi and the one who was in court. He avers that his wife, mother of the plaintiffs, as well as the plaintiffs were staying at the village of J C King but not on the suit land where they were squatters before he got the shares. The family then started staying on the suit land in 1984 and by then his children were adults with families. He removed them from the white man’s land to parcel 573 and he gave them their respective portions to farm but he did not divide the land. He gave each 2 to 3 acres but John Njoroge got about 4 acres and he gave the girls one acre each , but for Loise the one with mental challenges he gave her 2 acres though she died and gave her land to her sister’s child. 17.Dw1 avers that his children can look for land elsewhere the way he also did, adding that he only gave his children the land out of respect and they cannot go to him with pangas. He further stated that he inherited more land from his father where each one got ¾ of an acre, for his share he gave a child of his eldest brother who passed on so if he evicts his children, they cannot go to that parcel of ¾ acres. 18.DW2 is Rose Wambui, the wife of DW1. She adopted her witness statement dated 15.9.2022 as her evidence. She avers that her husband balloted for the suit land no 573 then he subdivided it into 4 parcels Nos L.R. Marmanet/Melwa Block1/1872-1875 Muhotetu. Then out of love, he gifted her parcel 1873 on 20.1.2022 and she was registered as the absolute owner of this parcel. 19.In cross examination, Dw2 stated that she got married to Dw1 in year 2017 and found that the 1st wife had died, but she found the children of her husband staying on that land. That the transfer in her favour was for 5 acres but she did not pay for the said land. No land had been transferred to the deceased, the 1st wife. She avers that there is a time when her husband called his children to give them land, but they refused saying he did not own the land, so what could he give them. That the said children stay on that land and they eke out a living on the said land. 20.The submissions of the plaintiff are dated 26.2.2026. where it is argued that the plaintiffs have extensively developed the land which they have occupied for a long time, thus they have a legitimate expectation that the land being family land is registered to the defendant to hold in trust for the other family members, of which the entry of Dw2 in year 2017 through marriage disturbed the prevailing peace whereby defendant transferred 6 acres to her and he intends to sell the remainder of the land. To this end, the plaintiffs relied on the cases of Petition No. 10 of 2015 Kiebia V M’lintari & Another (Petition 10 of 2015) (2018) KESC 22 (KLR) (5October 2018) (Judgment), and Mbui Mukangu V Gerald Muthiri Mbui Civil Appeal No. 281 of 2000. 21.I did not see any submissions from the defendant and the interested party. Determination 22.I have considered the pleadings, the evidence and the submissions of the plaintiff. There is no controversy that the plaintiffs are the children of the defendant of which their mother is not alive. Further, it is not in dispute that the interested party got married to the defendant in year 2017. There is also no dispute that the defendant was the registered owner of parcel 573 which was 24 acres, that he has since subdivided the same and has transferred one of the resultant parcels, No. 1873 to the interested party. 23.The question falling for determination is whether the claim of the plaintiffs based on trust should be allowed or whether defendant’s claim on eviction of the plaintiffs should be allowed. 24.The provisions of Section 107 of the Evidence Act stipulate that;“(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person”. 25.While Section 109 thereof further provides that:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person”. 26.What resonates from the above analysis is that he who alleges bears the burden of proving, see - Jennifer Nyambura Kamau v Humphrey Mbaka Nandi [2013] eKLR. Thus it behooves the plaintiffs to proof that their father held the 24 acres of the suit land in trust for himself and the plaintiffs. The defendant too was required to prove his claim on eviction. 27.The provisions of section 25 of the Land Registration Act provides that ;“The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject— (a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and (b) to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register. (2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee. 28.While section 28 thereof makes provision for the overriding interests 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 …….(b)trusts including customary trusts” 29.Trust whether customary or not is a question of fact which must be proved. See Elseba Were Ambundo v Silas Omukula Andenyi [2015] eKLR. The courts will not imply a trust save in order to give effect to the intention of the parties. See Mbiti V Adaljo & 3 Others (Environment and Land Case 576 of 2016) (2023) KEELC 21155 (KLR) (26 October 2025) (Judgment). 30.The plaintiffs claim that their father was not a member of Muhotetu farmers, which was the land buying company where the suit land was derived from. They contend that their father was bequeathed 2 shares by his father which gave rise to parcel 573 consisting of 24 acres. This claim is denied by the defendant who avers that he bought the 2 shares from his father. All the parties seem to agree that the acquisition of rights and interests in the suit land were derived from the shareholding in the company known as Muhotetu. Thus this was not land handed over through generations of the ancestors. 31.In the case of Mbui Mukangu V Gerald Muthiri Mbui Civil Appeal No. 281 of 2000 , the Court stated that;“The land registered in the name of Mbui was ancestral land that devolved to him on the death of his father. It was unregistered land held under custom but the tenure changed during the land consolidation process and subsequent registration under the Registered Land Act.” 32.Similarly in the case of Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR, the claim was anchored on ancestry, where the claimants averred that they were members of a certain clan known as Athimba, and they were entitled to the clan land as members. 33.The suit land in this matter has no customary flavour, thus the decisions cited by the plaintiffs are not applicable. The net effect is that the claim by the plaintiffs based on customary trust must fail. 34.As noted in the body of this judgment, the provisions of Section 28 of the Land Registration Act do recognize the existence of other trust. I have keenly perused all the documents availed by the parties. None of them indicate that one Macharia Karinga was giving out his shares to the defendant to be held in trust for any one. It matters not whether the land was bequeathed to the defendant by his father or that the defendant bought it himself from his father; from which ever angle one looks at the evidence, no trust can be attributed to one Macharia Karinga. After all, if Macharia Karinga gifted the suit land to his son, the defendant, such a transaction remains a voluntary transfer which had no other expectations. 35.It is clear beyond peradventure that the plaintiffs were unhappy with their father’s marriage to the interested party who actually found the plaintiffs staying on the suit land. That is however neither here or there considering that none of the plaintiffs have presented evidence of being displaced from the portions of land they actually occupy. 36.In Muriuki Marigi vs Richard Marigi Muriuki & 2 Others [1997]eKLR, the court stated that;“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 decides to sub-divide and distribute it among them. He may not be urged, directed or ordered to do it against his own will” 37.In Jemutai Tanui vs Juliana Jeptepkeny & 5 others ELC No. 44 of 2013 (formerly HCC No. 60 of 2012) Eldoret, Munyao J ( now JA) was dealing with the question as to whether a proprietor who inherited her land from her father automatically held the said land in trust for her children. The court held that there was no automatic trust arising from that inheritance. The court went on to state that:“The question in these proceedings is whether the defendants as children to the plaintiff have any right vested upon them by law which would entitle the plaintiff to consult them when making any decision that affects her land.Counsel for the respondents has not provided me with any legal provision or any legal authority that obligates an owner of land who has obtained such proprietorship through transmission to consult her children before making any decisions touching on such land. On my part, my search has not revealed any law that requires such consultations. It would of course be a good thing if the respondents as children of the deceased were consulted but there is no legal obligation to do so.I have also not seen any law that requires the parents as owners of land to sub-divide the same to their children inter vivos. Such parents to me have total control over their land but of course they can, and they usually do, allow their children, through a licence, to make use of such land. Neither is there any law that obligates such parents to make sure that when allowing their children permission to use, they must make sure that no child is discriminated and that such use must be equal. In the absence of such law, I am unable to import any to any statute.The rights of any proprietor of land whether such proprietor has children or not, is the same. The rights of proprietorship are not affected because such proprietor has children.” 38.. Similarly in the case at hand, the fact that the plaintiffs are the children of the defendant does not give them a right to direct the latter to share out his land with them when he is alive. For parcel No. 1873 which was transferred to the interested party, I find that the said transfer was effected by the owner, the defendant, thus there is no cogent evidence tendered by the plaintiffs to warrant revocation of the said transfer. The plaintiffs may be unhappy with the new member of the family, the interested party, but such are the vagaries of the elements; unpredictable, uncontrollable and erratic! 39.This far, I find that plaintiffs claim over the 4 parcels 1872 - 1875 must fail. 40.. Does the foregoing conclusion give the defendant the leeway to evict the plaintiffs?. On the face of it, this would appear to be a foregone conclusion. However, the circumstances of this case are that the defendant admits to having brought his family to the suit land way back in 1984 from a squatter tenure at the place of a white man. He also gave his children some portions to farm. The plaintiffs were not clear on the actual nature of their occupation and utilization of the suit land. Nevertheless, that is where they eke out a living. Under such circumstances, I hesitate to grant any orders for their eviction. 41.I hold the view that the parties herein could have immensely benefited from some kind of Alternative Justice System instead of the plaintiffs dragging their own father to court, but that is now water under the bridge as the case proceeded to finality in court. In the end, I find that both the claim of the plaintiffs and the counter claim of the defendant are not merited and are hereby dismissed. Considering that the parties are close family members, a father, his wife and the children, I direct that each party shall bear their own costs of the suit. DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 7th DAY OF JULY 2026 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:Nancy Mwangi – C/AGakenia for plaintiffNderitu Komu for defendant