https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5337

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT CHUKA** **ELCL CASE NUMBER E007 OF 2024** **ERNEST NYAMU RUTERE …………........……….....1ST PLAINTIFF** **FRIDAH KANGAI NYAMU ………………….............2ND PLAINTIFF** **JESCA NJERI MBAKA ………………….……......….3RD PLAINTIFF** **=VERSUS=** **JULIUS NJERU RUTERE ………………...…..….......….DEFENDANT** **JUDGMENT** **Introduction** 1. The 1st Plaintiff, the 2nd Plaintiff and the defendant are all sons of the late **M’Rutere Njonjo*.*** The 3rd plaintiff is a widow of the late **Leonard Mbaka** who was also a son of the late **M’Rutere Njonjo*.*** The three plaintiffs brought this suit against the defendant seeking a declaration that the defendant was registered as a trustee of land parcel number **Karingani/Weru/262** (*the suit land*) and holds the said land as a trustee on behalf of the 1st Plaintiff, the 2nd Plaintiff and the late **Leonard Mbaka** (*hereinafter referred to as* ***“the siblings”).*** 2. The Defendant contested the claim and denied existence of a trust. The key issue to be determined in the suit is whether the defendant holds the suit land in trust for himself and for his two siblings. Before I analyse and dispose the issue, I will briefly outline the parties’ respective cases and evidence. I will also summarize the submissions tendered in the suit. **Plaintiffs’ Case** 1. The Plaintiffs initiated the suit through a plaint dated 8/7/2024. Their case was that the 1st plaintiff, the 2nd plaintiff, the defendant and the late Leonard Mbaka are children of the late M’Rutere Njonjo who belonged to the **Mururu – Ugweni Clan**. During land adjudication in the early 1980s, the clan, through the late **M’Rutere Njonjo,** adjudicated land parcel number **Karingani/Weru/262*,*** measuring 16.5 hectares [41.25 acres], in the name of the defendant to hold it in trust for himself and for his three siblings. They added that the suit land was subsequently registered in the name of the defendant on 23/03/1984. They stated that despite several verbal and written demands and notice of intention to sue, the defendant had refused to end the trust by sharing out the suit land to the four beneficiaries in equal shares. 2. The plaintiffs prayed for the following verbatim reliefs:- 3. ***A declaration that Julius Njeru Rutere was registered as a trustee of land parcel No. Karingani/Weru/262 on his own behalf and in trust for the plaintiffs Ernest Nyamu Rutere, Fridah Kangai Nyamu and Jesca Njeri Mbaka.*** 4. ***That the Honourable Court do determine the trust by ordering sub-division of land parcel No. Karingani/Weru/262 into 4 equal portions to be registered in the names of Julius Njeru Rutere, Ernest Nyamu Rutere, Fridah Kangai Nyamu and Jesca Njeri Mbaka.*** 5. ***Costs of the suit.*** 6. ***Any other or further relief that the honourable court may deem fit to grant.*** **Defendant’s Case** 1. The defendant contested the claim through a statement of defence dated 14/08/2024 in which he denied all the allegations made in the Plaint and put the plaintiffs to strict proof. It was the case of the defendant that a trust has never existed over the suit land. He emphasized that the suit land was not ancestral land. He urged the court to dismiss the plaintiffs’ claim. **Plaintiffs’ Evidence** 1. The plaintiff led evidence by **Ernest Nyamu Rutere [PW1]**, **Zakayo Mati [PW2]** and **Jesca Njeri Mbaka [PW3]**. Ernest Nyamu Rutere stated that he was a retired teacher aged 63 and a resident of Mugwanthi Village, Kiamuchi Sub Location, Gatareni Location, Chuka North Sub County. He had his residence on land parcel number **Karingani/Gatareni/506** which belonged to their late father. He stated that they sued the defendant because he was registered to hold the suit land in trust, adding that the adjudication register in Karingani was finalized in 1984 and at that time he was aged 22. He further testified that the late Leonard Mbaka was born in 1954 and was aged 30 in 1984. 2. PW1 testified that besides the suit land, their late father gave to the defendant parcel number **Karingani/Gitareni/1117** measuring 1.25 acres as his absolutely. He added that he farmed on the suit land between 2018 and 2021 but he stopped farming on it in 2021 when he was threatened. He further stated that during land adjudication, the following two parcels were adjudicated and registered in the name of their late father: (i) **Karingani/Gitareni/506** measuring 4 acres; and (ii) **Karingani/Weru/118** measuring 18 acres, adding that the parcels were given to their late father by the clan. He stated that they had not carried out succession relating to their late father’s estate. 3. Zakayo Mali [**PW2**] testified that he was the Chairman of the Mururu – Ugweni Clan and he knew the plaintiffs and the defendant. He adopted the contents of his witness statement dated 08/07/2024. He stated that parties to this suit had a dispute before a committee of the clan in which the plaintiffs were the claimants and sought to be given part of the suit land, parcel number 262. He stated that the defendant insisted that he owned the suit land absolutely, adding that the suit land measured about 3 acres and that the defendant was given 1½ acres and was supposed to share out the remainder to his siblings. He was not able to produce minutes of the clan meeting. 4. In his evidence during cross-examination, he reiterated that parcel number 262 measured about 3 acres and that he had been to the suit land. He further reiterated that the defendant owned 1¼ acre out of the suit land. He did not know the year when the defendant was given the suit land to hold as a trustee. In his evidence during re-examination, he again insisted that the suit land measured about 3 acres. 5. Jesca Njeri Mbaka testified as **PW3**. She stated that she retired from KALRO in 2023, adding that the defendant was the immediate follower of her husband, Leonard Mbaka, who died in 2007. She got married to the late Mbaka in 1979 6. PW3 added that her late husband’s parents told them that the defendant owned land in trust for his siblings, adding that after the death of her husband, she established that indeed the defendant owned the suit land in trust. She stated that she had never utilized the suit land, adding that she visited it once in 2019. In re-examination, she stated that her conclusion that there was a trust was informed by the view that the defendant as a single person could not have been given 41 acres while his father was not given that much land. **Defendant’s Evidence** 1. The Defendant adopted the contents of his written witness statement and produced six (6) exhibits. His evidence was that he acquired the suit land through gathering, adding that gathering involved identifying unoccupied bush. He was subsequently adjudicated as the owner of the suit land and he was registered as the absolute proprietor of the suit land. 2. The defendant testified that his father similarly identified and gathered his own parcels which were adjudicated and registered in his name. The defendant added that the plaintiffs had never occupied nor had possession of the suit land. 3. During cross-examination, the defendant stated that land gathering happened in the 1970s and the exercise of gathering was done under the superintendence of the demarcation officer. He added that he gathered three parcels, namely: (i) **Karingani/Weru/262** measuring approximately 42 acres; (ii) **Karingani/Gitareni/1117** measuring 0.49 hectares; and (iii) a parcel measuring 13 acres in Gitareni. He added that he was not privy to any objection proceedings initiated by the plaintiffs during land adjudication in which the plaintiffs were awarded the right of occupation. 4. The defendant stated that the 1st Plaintiff had never utilized the suit land and emphasized that he was not given the suit land by his late father to hold in trust for his siblings. The defendant pointed out that their late father got his own parcels. **Plaintiff’s Submissions** 1. The plaintiffs filed written submissions dated 31/1/2026 through ***M/s Njeru Ithiga & Co. Advocates***. Counsel for the plaintiffs identified the following as the two issues that fell for determination in the suit: (i) Whether land parcel number **Karingani/Weru/262** was registered in the name of the defendant as a trustee on his own behalf and on behalf of the plaintiffs and; (ii) Whether the plaintiffs were entitled to the prayers sought in the plaint. 1. On whether land parcel number**Karingani/Weru/262** was registered in the name of the defendant as a trustee of the plaintiffs, counsel for the plaintiffs submitted that the foundation of customary trust is recognized under **Section 25** of the **Land Registration Act of 2012**, adding that registration as owner of land is not absolute in every respect and is subject to the overriding interests spelt out in **Section 28(b)** of the **Land Registration Act** **.** He further submitted that while the Act protects registered proprietors, it recognizes that interests such as customary trust are unregistrable but overriding. 2. Counsel argued that during trial, PW1 testified that during land adjudication exercise in the 1980s, the Mururu/Ugweni Clan, through their father, M’Rutere Njonjo, adjudicated land parcel number**Karingani/Weru/262** in the name of the defendant to hold for himself and in trust for his siblings. He further contended that the defendant was also allocated parcel number **Karingani/Gatareni /1117** absolutely, adding that the rest of the siblings were not allocated any land by the clan since their share was held by the defendant in trust. Counsel relied on the pronouncement of the Supreme Court of Kenya in ***Isack M’Inanga Kiebia vs Isaaya Theuri M’Lintari & Another (2018) eKLR***. 3. Counsel submitted that in recognizing a trust, the intention of the parties must be considered. Counsel added that the intention of the parties’ father was to create a trust by registering his elder son to hold the suit land in trust for his siblings. 4. On whether the plaintiffs were entitled to the prayers sought, counsel argued that the plaintiffs and the defendant were children of **M’Rutere Njonjo**, adding that they had led evidence demonstrating that the suit land is held subject to customary trust. He relied on the case of ***Muthuita vs Muthuita (1982 – 88) 1KLR 42.*** **Defendant’s Submissions** 1. The defendant filed written submissions dated 20/02/2026 through ***M/s A. G. Riungu & Co. Advocates***. Counsel for the defendant identified the following as the six issues that fell for determination in the suit: (i) Whether the suit land was family, clan, or group land before registration; (ii) Whether a customary trust existed in favour of the plaintiffs; (iii) Whether the plaintiffs ever occupied possessed or utilized the suit land; (iv) Whether the adjudication process supports the plaintiff’s claim; (v) Whether the caution lodged against the suit land was lawful and who should bear the costs of the suit. 2. On whether the plaintiffs proved their claim of customary trust, counsel for the defendant submitted that no evidence was led to demonstrate that the suit land was reserved for family use before adjudication and that the defendant was registered on behalf of the plaintiffs as a trustee. Counsel further submitted that there was no evidence of a family resolution or documentary evidence of minutes or records of the alleged trust. Counsel added that the defendant gathered the suit land and caused it to be demarcated in his name as the absolute owner of the land during adjudication. He relied on the case of ***Muthuita vs Muthuita (1982 – 88) 1 KLR***. 3. Counsel for the defendant argued that the plaintiffs never occupied the suit land, adding that the plaintiffs had failed to establish a customary trust. He relied on the case of ***Grace Njeri Warukenya & 3 Others v Mutiga & Another (2024) eKLR*** and ***Peter Mburu Echaria vs Priscilla Njeri Echaria (2023) eKLR***. 4. On whether the caution lodged was lawful, counsel argued that the 2nd and 3rd plaintiffs registered a caution against the suit land, adding that the caution was unlawful because it encumbered the defendant’s title. Counsel relied on the case of ***Mutungi vs Mutungi (2024) eKLR*** and ***Peter Mburu Echaria vs Priscilla Njeri Echaria (2023)eKLR*** and ***Reuben Mwongera M’Ithumbi vs Lucy Karambu Ringera (2022) eKLR***. Counsel urged the court to reject the plaintiffs’ claim. **Analysis and Determination** 1. The court has considered the parties’ pleadings, evidence and submissions. The court has also considered the relevant legal frameworks and jurisprudence. As pointed out in the introduction part of this Judgment, the key issue which falls for determination in the suit is whether the defendant holds land parcel number Karingani/Weru/262 for himself and in trust for his three siblings. 2. The plaintiffs contend that the suit land was given to the four siblings’ father, the late M’Rutere Njonjo, by the Mururu-Ugweni Clan and the late Njonjo caused it to be registered in the name of the defendant as a trustee but the aspect of trustship was not noted in the register. They contend that there subsists a customary trust in favour of the three siblings. The defendant denies the above contention and asserts that he personally gathered the suit land as a bush; was demarcated as the owner of the suit land; and was subsequently registered as the absolute proprietor of the suit land in 1984. He denies the existence of a customary trust over the suit land. 3. **Section 28** of the **Land Registration Act** recognizes a customary trust as one of the unregistrable overriding interests against a registered land title. It states thus: ***“28. Overriding interests*** ***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—*** ***(a) deleted by Act No. 28 of 2016, s. 11(a);*** ***(b) trusts including customary trusts;*** ***(c) rights of way, rights of water and profits subsisting at the time of first registration under this Act;*** ***(d) natural rights of light, air, water and support;*** ***(e) rights of compulsory acquisition, resumption, entry, search and user conferred by any other written law;*** ***(f) deleted by Act No. 28 of 2016, s. 11(b);*** ***(g) charges for unpaid rates and other funds which, without reference to registration under this Act, are expressly declared by any written law to be a charge upon land;*** ***(h) rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription;*** ***(i) electric supply lines, telephone and telegraph lines or poles, pipelines, aqueducts, canals, weirs and dams erected, constructed or laid in pursuance or by virtue of any power conferred by any written law; and*** ***(j) any other rights provided under any written law.*** ***Provided that the Registrar may direct the registration of any of the liabilities, rights and interests hereinbefore defined in such manner as the Registrar deems necessary.”*** 1. By dint of the provisions of **Sections 107**, **108** and **109**of the **Evidence Act,** the party alleging the existence of a customary trust bore the burden of proving it. The three sections contain the following framework: ***“107. Burden of proof.*** ***(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.*** ***108. Incidence of burden.*** ***The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.*** ***109. Proof of particular fact.*** ***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.”*** 1. The guiding criteria on the nature of evidence that is required to establish existence of a customary trust under **Section 28** of the **Land Registration Act** was outlined by the Supreme Court of Kenya in ***Isack M’Inanga Kiebia vs Isaaya Theuri M’Lintari & Another (2018) eKLR*** 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 vs 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 benefits 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 (sic) as a trustee are:*** 1. ***The land in question was before registration, family clan or group land.*** 2. ***The claimant belonged 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.*** 6. The evidence on record shows that the suit land was registered in the name of the defendant in 1984 as a culmination of the land adjudication exercise in Karingani. The adjudication exercise commenced in the 1970s. M’Rutere Njonjo, the deceased father to the four siblings featuring in this suit, was an adult man with capacity to hold land in his own name. Indeed, PW1 confirmed that the late M’Rutere Njonjo was demarcated, adjudicated and registered as proprietor of land parcel numbers: (i) Karingani/Gitareni/506 measuring 4 acres and; (ii) Karingani/Weru/118 measuring 118 acres. None of the witnesses who testified on behalf of the plaintiffs was able to explain why M’Rutere Njonjo who had capacity to be demarcated, adjudicated and registered as proprietor of land chose to be so demarcated, adjudicated and registered in relation to the above two parcels but decided that only the defendant could be demarcated, adjudicated and registered as proprietor of the suit land (**Karingani/Weru/262**). 7. Secondly **PW3 (Jesca Njeri*)*** testified that her late husband (Leonard Mbaka) was an elder sibling of the defendant. On his part, PW1 testified that he was 22 years old when the adjudication register was finalized. No evidence was tendered to explain why the late Leonard Mbaka and the 1st plaintiff who were adults at that time did not cause their shares of the land to be demarcated, adjudicated and registered in their names. 8. Thirdly, none of the plaintiffs has ever lived on the suit land. In fact, the 3rd plaintiff has seen the suit land only once [in 2019] despite having been married to the late Leonard Mbaka since 1979. The 1st plaintiff (PW1) alleged that he did some farming on the suit land between 2018 and 2021 and he stopped when he was threatened. The defendant denied the allegation that the 1st plaintiff did some farming on the suit land from 2018 to 2021. The above allegation by the 1st plaintiff was not corroborated. The totality of the evidence on record does not point to any form of occupation of the suit land by the plaintiffs. 9. Similarly, there is no evidence placed before the court to suggest that prior to the registration of the suit land in the name of the defendant, the land belonged to the defendant’s father. The Clan Chairman (PW3) who the plaintiffs called as a witness did not know the acreage of the suit land. He asserted throughout his testimony that the suit land measured 3 acres and that the defendant was entitled to only 1½ acres. It clearly emerged from the evidence of PW3 that his testimony related to a different parcel of land. He did not have any useful evidence relating to the suit land. 10. On his part, the defendant tendered evidence showing that he personally gathered the suit land as a bush in the 1970s and he was subsequently demarcated, adjudicated and ultimately registered as the absolute proprietor of the suit land in 1984. Up to the time the late M’Rutere Njonjo died in 1998, he had not laid any claim of customary trust over the suit land. Up to the time the late Leonard Mbaka died in 2007, he too had not laid any claim of customary trust over the suit land. 11. That is not all. The plaintiffs relied on unverified documents they alleged formed part of the adjudication record. The document was dated 30/08/1975. The said document shows that the late Rutere Njonjo, the late Leonard Mbaka and Ernest Nyamu [the 1st plaintiff] lodged **Objection No. LNO/LA/S/27/4/77*[sic].*** The plaintiffs did not tell the court the outcome of the alleged objection. If indeed the trio had a claim over the suit land in 1975, the same ought to have been dealt with and disposed conclusively within the framework of the land adjudication and consolidation law. The defendant was supposedly registered as proprietor of the suit land after disposal of any such objection. The same claim cannot be resurrected 49 years later as a customary trust claim. 12. The totality of the foregoing is that, based on the evidence that was tendered in this suit, the plaintiffs did not prove the existence of a trust in the registration of Julius Njeru Rutere as proprietor of land parcel number Karingani/Weru/262. It is the finding of this court that Julius Njeru Rutere was registered as the lawfully adjudicated absolute proprietor of the said land and holds the land as the absolute proprietor. 13. On costs, although parties to this suit are relatives, advocates were engaged in the litigation and costs have been incurred. It would be unfair to deny the successful party costs. Consequently, the plaintiffs will bear costs of the suit. **Disposal Orders** 1. In the end, the plaintiffs’ suit is dismissed for lack of merit. The plaintiffs shall bear costs of the suit. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF AUGUST, 2026.** **B. M. EBOSO [MR]** **ELC JUDGE** **In the presence of**: Ms Riungu for the Defendant Plaintiffs – Absent Mr E. Tupet – Court Assistant