https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4069

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC CASE NO. 160 of 2017** **EVANSON NDWIGA (Suing as the legal representative** **of the estate of EPHRAIM MUGO NJUKI).……................. PLAINTIFF** **JOHN KENNEDY NJAGI.......................1ST SUBSTITUTED PLAINTIFF** **ANDERSON NJERU MUGO..................2ND SUBSTITUTED PLAINTIFF** **VERSUS** **NATHAN NYAGA MURIUKO……………….….................. DEFENDANT** **FREDRICK MURITHI NYAGA................ SUBSTITUTED DEFENDANT** **JUDGEMENT** 1. The Plaintiff herein – EVANSON NDWIGA (Suing as the legal representative of the estate of EPHRAIM MUGO NJUKI) - filed this case here against the Defendant – NATHAN NYAGA MURIUKO – vide a Plaint dated 16.10.2017. During the course of proceedings, both the Plaintiff and the Defendant passed away. The Plaintiff was subsequently substituted by John Kennedy Njagi and Anderson Njeru Mugo, while the Defendant was substituted by Fredrick Muriithi Nyaga. 2. The late Ephraim Mugo Njuki and the late Nathan Nyaga Muriuko are brothers. The Plaintiff, the 1st and 2nd substituted Plaintiffs are the sons of the late Ephraim Mugo Njuki. It is said that the late Ephraim Mugo Njuki was the original and or first registered owner of land parcel No. Evurore/Evurore/51. The Plaintiff averred that on 22.08.2017, he visited the Lands office to obtain a copy of the green card of the suit land with the intention of instituting succession proceedings over his father’s estate. That upon perusing the green card, he discovered that his father’s title had been cancelled pursuant to a decree arising from Evurore Land Disputes Tribunal Case No. 352 of 2009, which was subsequently adopted as a judgment of the Siakago Principal Magistrate’s Court in Case No. 3 of 2009, notwithstanding the fact that his father had already passed away at the time. 3. He averred that the said decision was made in contravention of the provisions of the law as the Tribunal exceeded its jurisdiction in cancelling his father’s title and that his family was not afforded a hearing. 4. It is on those grounds that he sought inter alia, a declaration that the decision of the Evurore Land Disputes Tribunal made on 27.05.2009 and the decree arising therefrom dated 12.11.2009 was illegal, null and void; a declaration that the Plaintiffs father the late Ephraim Mugo Njuki is the absolute registered proprietor of land parcel No. Evurore/Evurore/51. 5. The Defendant filed an amended defence and counterclaim dated 07.03.2024. He averred that the Plaintiff was a party and fully participated in the disputes before the Tribunal and was aware of their outcome. In the counterclaim, he stated that the Plaintiff’s late father, Ephraim Mugo, was his elder brother and that the suit land was acquired by their father, Benard Njuki alias Mariuko Mbugire, by redeeming it from one Mwarevu Wamugere for a consideration of three goats and a gourd of honey around 1953. 6. He further averred that he assisted his father in redeeming the land by contributing one she-goat and a gourd of honey. That the Defendant, together with his siblings (except the Plaintiff’s father) and their parents, settled on Parcel No. Evurore/Evurore/51 around 1953, where he resides to date with his family. He averred that the Plaintiff’s father was left occupying Parcel No. Kamwimbi/Section A/145, which belonged to their father, Benard Njuki alias Mariuko Mbugire, and this is where the Plaintiff was born and brought up. 7. That during the adjudication process in Evurore area, the Defendant’s father, being elderly and ailing, sent the Plaintiff’s father, the late Ephraim Mugo Njuki, as his eldest son to represent him in clan meetings and safeguard his interests, including ensuring that his parcels were properly registered in his name. The Defendant alleged that the late Ephraim Mugo Njuki, through misrepresentation, caused Parcel No. Evurore/Evurore/51 to be registered in his name. He set out the particulars of misrepresentation against the late Ephraim Mugo Njuki. 8. The Defendant stated that their father was unaware of these dealings at the time of his death. He further stated that their father had expressed the wish that Parcel No. Evurore/Evurore/51 be shared equally among his three sons, namely the late Ephraim Mugo Njuki, the Defendant, and Dedan Ngari Benard. He averred that he only discovered what had transpired after the death of the Plaintiff’s father and therefore he subsequently filed Evurore Land Disputes Tribunal Case No. 352 of 2009, in which the Plaintiff was a respondent and fully participated by giving evidence, cross-examining witnesses, and calling witnesses. 9. That the Tribunal directed that Parcel No. Evurore/Evurore/51 be shared equally among the three sons of Benard Njuki alias Mariuko Mbugire. The said award was adopted by the court in Siakago SPM’s LDT No. 3 of 2009 in the presence of the Plaintiff, who did not object or appeal. The Defendant subsequently registered the court order against the parcel at the Lands Office. The Defendant maintained that without prejudice, despite exceeding its jurisdiction, the Tribunal arrived at a fair and just decision. He contended that the Plaintiff’s father was registered as proprietor of the suit land in trust for himself, the Defendant and their younger brother Dedan Ngari Benard. 10. The suit proceeded for hearing on 27.03.2023, during which Anderson Njeru Mugo testified as PW1. He adopted his written statement as his evidence in chief. He stated that the late Ephraim Mugo Njuki was his father and a brother to the Defendant, Nathan Nyaga Muriuko. He further testified that his father’s title to the suit land was cancelled pursuant to proceedings before the Tribunal conducted in 2009, yet their father had died in April 1995. He added that they were never accorded an opportunity to participate in those proceedings. 11. On cross examination, he stated that his grandfather Benard Njuki alias Muriuko Mbugire had three sons, his late father, the late Defendant and one Dedan Ngare. He stated that he did not know how land parcel 51 was acquired by his late father. He stated that the Tribunal proceedings went on without their knowledge even though their names appear as parties. He denied that the land was held in trust by their late father. 12. He produced in evidence a copy of a grant ad litem in the estate of Ephraim Mugo Njuki, proceedings in the Land Disputes Tribunal case No. 3 of 2009, a copy of a decree in Siakago LDT Case No. 3 of 2019, a copy of the green card for land parcel 51, a copy of a death certificate of the late Ephraim Mugo Njuki and proceedings in Siakago SPM’s LDT Case No. 3 of 2009. 13. The Defendant Nathan Nyaga Muriuki testified as DW1. He adopted his written statement as his evidence in chief. He reiterated that suit land belonged to his father and that the late Ephraim Njuki abused his father’s trust and registered the suit land in his name. He stated that he was the one who instituted the case before the Tribunal and that the Plaintiffs’ father was dead at the time. He stated that he sued his children who are the Plaintiff’s because the land was left to them and that they were present when the Tribunal proceedings were going on. He produced in evidence the green card for land parcel No. 51, the proceedings in LDT Case NO. 352 of 2009, Siakago SPM’s LDT Case No. 3 of 2009 and the decree in Siakago SPM’s LDT Case No. 3 of 2009. 14. On cross examination, he stated that the land was fraudulently registered in the Plaintiffs’ father’s name. He stated that he lives on land parcel 53 which he bought from his sister and that his father also gave him another parcel of land No. 1210. He stated that his younger brother owns land parcel No. 1038 where he lives and that the Plaintiffs’ father was given land parcel No. 1208. That his father and mother are buried on land parcel 51. He stated that the suit land was registered in the name of the Plaintiffs’ father in 1987 whereas his father died in 1986. He stated that his father had instructed that the suit land be subdivided among his three sons. 15. The parties agreed to file written submissions. The Plaintiffs filed submissions dated 16.07.2025. They submitted that the Defendant in Paragraph 22 of their counterclaim admitted that the Tribunal exceeded its jurisdiction in making the decision. They submitted that challenging the Tribunals decision through a declaratory suit such as the instant one was in order as was held by the court of appeal in the case of **Reuben Kamwocere v Hellena Wakina Mauricio [2015] eKLR** and in the case of **Nicholas Njeru v Attorney General & Others [2013] eKLR**. They averred that therefore they were properly before this court asking that the Tribunal’s decision be found to have been made devoid of jurisdiction. 16. They submitted that the Tribunal in the instant suit exceeded its jurisdiction in dealing with an issue of title over registered land contrary to section 3(1) of the Repealed Lands Disputes Tribunal Act and that their suit be allowed to that extent. On the issue of a customary trust alluded to in the Counterclaim, they submitted that the Defendant’s claim is not supported by the evidence on record. That during cross-examination, DW1 admitted that neither he nor his immediate family occupy the suit land, but reside on separate parcels. 17. They averred that the Defendant’s claim is premised on an allegation that the Plaintiffs’ father fraudulently acquired the suit land, and he seeks its reversion to their deceased father’s estate for purposes of instituting succession proceedings. This position they say, is inconsistent with a claim for customary trust and instead amounts to a challenge to the validity of the Plaintiffs’ father’s title. It was submitted that occupation and possession are key elements in establishing a customary trust, as affirmed in **James N. Kiarie –vs- Geoffrey Kinuthia & Another [2012] eKLR***.* Further, that the Supreme Court in **Isack M’Inanga Kiebia v Isaaya Theuri M’Lintari & Another [2018] eKLR**emphasized that customary trust must be proved on a case by case basis through cogent evidence, and not every familial claim to land qualifies as such. 18. They averred that in the present case, the Defendant had failed to demonstrate any evidence of trust, and his assertions were solely directed at impugning the Plaintiffs’ father’s title. The Court was urged not to infer a trust merely on the basis of familial relationship in the absence of credible evidence. They contended that the Tribunal proceedings being relied upon were fundamentally flawed, as they were conducted and determined after the death of the registered owner, without participation of his beneficiaries and in the absence of letters of administration and therefore that denied the Plaintiffs’ family a fair hearing. It is submitted that the Tribunal’s decision ought to be set aside, the Plaintiffs’ suit allowed, and the Defendant’s counterclaim dismissed with costs. 19. The Defendant filed submissions dated 23.01.2025. He submitted that the Supreme Court in the case of Isack M’Inanga Kiebia Supra, set out the elements that would qualify one as a trustee. He submitted that the evidence on record clearly establishes the existence of a customary trust over the suit land and that the original Defendant, the late Nathan Nyaga Mariuko gave uncontroverted evidence regarding the origin of the suit land, stating that it initially belonged to one Mugere Wamirangu. He testified that in 1953, his father, Bernard Njuki alias Mariuko Mbugire, redeemed the land by paying two she-goats, and that in 1955 he (the Defendant) further contributed a she-goat and a gourd of honey to complete the redemption process. 20. On the issue of family relationship, it was submitted that this was not in dispute. The late Bernard Njuki alias Mariuko Mbugire was the father of both the late Ephraim Mugo Njuki, the registered proprietor of the suit land and the original Defendant. That the Defendant therefore stands as a direct son of the alleged beneficial owner and a brother to the registered proprietor, establishing a close and non-remote family connection sufficient to ground a claim for customary trust. 21. He submitted that he testified that he assisted his father in redeeming the land and settled on it as early as 1953. He further stated that he married in 1970, raised his eight children on the land, and that they continue to reside there to date. That this occupation was corroborated by the proceedings of the Land Disputes Tribunal, which indicate that the Plaintiff’s family had sought to evict the Defendant and his brother from the suit land. It is therefore submitted that, but for the registration of the land solely in the name of Ephraim Mugo Njuki, the Defendant would have been entitled to a share either during adjudication or through succession. It was submitted further, that the Defendant adduced evidence that several family members, including his father, his wife, his father’s mother and a daughter to Dedan Ngari are buried on the suit land which is evidence that the parcel in issue is family land. 22. In support of these submissions, reliance is placed on **Mwangi -vs- Kamau & 2 Others (2023) KEELC (KLR)*,* Dominic Ottenyo Ongonyo & 2 Others -vs- Helida Akoth Walori (2022) eKLR*,* Ishmael Kegonde Havi -vs- Dan Amena Atinga (2022) eKLR*,* and Kamau –vs- Thiga (2022) KEELC 2839 (KLR).** 23. Having considered the pleadings, evidence on record, and the rival submissions of both parties, the issues for determination are as follows: * 1. *Whether the decision of the Evurore Land Disputes Tribunal and the subsequent decree adopted in Siakago SPM LDT Case No. 3 of 2009 were lawful and valid;* 2. *Whether the Defendant has proved the existence of a customary trust over the suit land;* 24. The jurisdiction of the Land Disputes Tribunal was governed by Section 3(1) of the Land Disputes Tribunal Act (now repealed), which provided as follows: ***“Subject to this Act, all cases of a civil nature involving a dispute as to;*** * 1. ***the division of, or the determination of boundaries to land, including land held in common;*** 2. ***a claim to occupy or work land; or*** 3. ***trespass to land*** ***shall be heard and determined by a Tribunal established under section 4.”*** 1. It is therefore clear that the Tribunal acted outside its jurisdiction in determining issues touching on ownership of the suit property. However, the critical question that arises is the proper procedure available to a party aggrieved by such a decision. This Court has previously addressed this issue extensively in the case of **Andrew -vs- Muchungu (Legal Representative of the Estate of Martha Muthoni Muchungu -vs- Deceased) [2024] KEELC 13277 (KLR)**, where it was held that the Act provided a clear dispute resolution framework. Under Section 8(1) and (9), an aggrieved party was required to either appeal to the Provincial Appeals Committee within 30 days or seek judicial review before the High Court within 60 days on grounds of jurisdiction or legality. 2. In the present case, following the Tribunal’s decision, the award was duly adopted as a judgment of the Magistrate’s Court under section 7 of the Act. From that point, the award ceased to exist independently. The Plaintiffs neither appealed the Tribunal’s decision nor sought Judicial Review. They never also challenged the adoption of the award before the Magistrate’s Court on appeal. Once the award was adopted by the court, it became part of the court’s judgment and took effect as a binding decree of a competent court. 3. The Court of Appeal in **Florence Nyaboke Machani v Mogere Amosi Ombui & 2 Others Civil Appeal No. 184 of 2011 [2014] eKLR** observed as follows: ***“Once the award of Borabu Land Disputes Tribunal was adopted as a judgment of Senior Resident Magistrate’s Court at Keroka, it ceased to exist on its own. It cannot be the subject of a declaration. And even if it remained alive of what use will it be to declare it a nullity if the decree ensuing therefrom, by SRM’s court at Keroka does not face the same fate. The plaintiff has not invited this court to do so. I am sure that he was aware that that would have been an uphill task. The award having become a judgment of the court of competent jurisdiction can only be varied, vacated, set aside or reviewed either by the same court or by an appellate court in appropriate proceedings. That has not been done by the SRM’s court at Keroka nor have I been asked to do so in this suit. In any event I do not think that the SRM’s court at Keroka has jurisdiction under the Land Disputes Tribunals Act to review, vary, rescind, vacate and or set aside an award filed. The role of that court is merely to adopt the award as a judgment of the court on application and thereafter issue a decree. It has no jurisdiction to examine the award in order to satisfy itself whether it is bad in law and therefore void ab initio”*** 1. This position has been consistently affirmed in other decisions, including **Catherine C. Kittony –vs- Jonathan Muindi Dome & 2 Others [2019]eKLR and Mathenge -vs- Gatua & Another (Civil Appeal No. 94 of 2018) [2024] KECA 341 (KLR)**, where the courts held that parties must exhaust the statutory dispute resolution mechanisms provided under the Act. 2. In the circumstances of this case, while the Tribunal may have acted outside its jurisdiction, the Plaintiffs have not demonstrated any sufficient or lawful basis for bypassing the established statutory mechanisms for challenging that decision. Accordingly, the Court finds that the challenge to the Tribunal decision, as adopted by the Magistrate’s Court, is not properly before this Court and cannot be sustained in the manner presented. The Plaintiffs were required to demonstrate satisfactory reasons for failing to pursue the prescribed statutory remedies, which has not been done. 3. Consequently, I find that the plaintiffs herein have not demonstrated that they are entitled to the declaratory reliefs sought. 4. On the issue of customary trust, it is important to note that the question of ownership of the suit land was already directly addressed by the Evurore Land Disputes Tribunal, whose decision was subsequently adopted as a judgment of the court in Siakago SPM LDT Case No. 3 of 2009. That judgment has neither been set aside, reviewed, nor appealed against, and therefore remains valid, binding, and enforceable. I will therefore not disturb the said determination or reopen the issues of ownership. 5. In the result, both the suit and the counterclaim are hereby dismissed. 6. Given that the parties are members of the same family and considering that none has substantially succeeded in their respective claims, each party shall bear its own costs. **JUDGEMENT DATED, SIGNED** and **DELIVERED** virtually at **KITUI** this **30TH DAY OF JUNE, 2026** pursuant to notice dated **17/6/2026**. In the presence of, *Court Assistant – Musyoki* *Plaintiff – Absent* *Defendant – Absent* *No counsel present* **A. KANIARU** **JUDGE- ENVIRONMENT & LAND COURT, KITUI**